Atkinson v. Economical, 2026 ONSC 2605
DIVISIONAL COURT FILE NO.: 625/23, 083/25 and 084/25
DATE: 20260505
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
D.L. Corbett, M.D. Faieta and W.M. LeMay JJ
B E T W E E N:
PATRICIA ATKINSON
A. Ismail, for the Applicant / Appellant
Applicant / Appellant
- and -
ECONOMICAL INSURANCE COMPANY,
S. Whibbs and M. Baxter, for Economical
LICENCE APPEAL TRIBUNAL
Insurance Company
Respondents
D. Lee and J. Boyce, for the License Appeal
Tribunal
A N D B E T W E E N:
PATRICIA ATKINSON
A. Ismail, for the Applicant
Applicant
- and -
ECONOMICAL INSURANCE COMPANY,
S. Whibbs and M. Baxter, for Economical
Dr. Mohamed Khaled, Direct IME,
Insurance Company
Sarah Miazga, HUMAN RIGHTS
TRIBUNAL
C. Windsor, for Dr. Khaled
M. Smith, for Direct IME
M. Baxter for Ms. Miazga
M. Noble and D. Lee, for HRTO
Respondents
HEARD in Toronto: November 18, 2025
reasons for Decision
LeMay J.
Overview
[1] On December 3, 2019, the Appellant/Applicant, Ms. Patricia Atkinson (“Ms. Atkinson”), was in a car accident. Her insurer, Economical Insurance (“Economical”) denied her certain benefits under the Statutory Benefits Accident Schedule, O. Reg. 34/10, as am. (“SABS”). Ms. Atkinson appealed that decision and sought a hearing before the Licence Appeals Tribunal (“the LAT”).
[2] As part of Economical’s assessment of Ms. Atkinson’s claim Dr. Mohamed Khaled (“Dr. Khaled”), prepared a report on behalf of Economical. He concluded that Ms. Atkinson was not suffering from any objective injuries. That report was the factual basis for Economical’s denial of Ms. Atkinson’s claim for benefits.
[3] At the LAT appeal hearing, Economical sought to rely on Dr. Khaled’s report without calling him as a witness or making him available for cross-examination. Ms. Atkinson’s counsel objected to this procedure on the basis that Dr. Khaled should be produced so that Ms. Atkinson’s counsel could cross-examine him. The LAT adjudicator found in favour of Economical and the report of Dr. Khaled was admitted without any testimony from Dr. Khaled. On October 3rd, 2023, the LAT adjudicator issued a decision denying benefits to Ms. Atkinson. On January 18th, 2024, the adjudicator confirmed his decision after a reconsideration application was made. These decisions were appealed and were also the subject of a judicial review application.
[4] On April 5th, 2021, Ms. Atkinson made an application to the HRTO alleging that Dr. Khaled was hired by the Respondent Direct IME and told to conduct a medical examination that was limited to her objective physical injuries only and did not take into account her non-objective or psychological injuries. After the LAT made its decision in 2024, the HRTO directed the parties to make submissions on whether the LAT’s decision appropriately dealt with the substance of Ms. Atkinson’s HRTO application. On December 31st, 2024, the HRTO ultimately determined that the LAT had appropriately dealt with the substance of the HRTO application and dismissed it. This decision was reconsidered and confirmed by the HRTO on April 24th, 2025. These decisions were the subject of a judicial review application.
[5] On July 25, 2025, the Applicant delivered her factum and record for the appeals/judicial reviews. On July 31, 2025, the LAT advised that they were going to reconsider their disposition of Ms. Atkinson’s appeal for a second time and that the parties were required to make written submissions. On September 12th, 2025, the LAT determined that relying on Dr. Khaled’s written opinion without permitting Ms. Atkinson to cross-examine him was a breach of procedural fairness. As a result, the LAT determined that both the initial decision and the reconsideration decision should be cancelled.
[6] The HRTO and the individual respondents to the HRTO proceeding agreed with Ms. Atkinson that the HRTO’s decisions should be quashed by this Court because the LAT decision that formed the basis of those decisions was no longer in force. Ms. Atkinson is seeking costs of the judicial review of the HRTO decision, as well as a direction that the HRTO conduct a hearing on the merits. That relief was opposed.
[7] Ms. Atkinson also sought an order from this Court quashing all three LAT decisions, as well as providing her with costs. She took the position that the LAT did not have the jurisdiction to issue the September 12th, 2025, decision. The LAT opposed the order quashing the LAT decisions and took the position that the LAT had jurisdiction to issue the September 12th, 2025, decision. The insurer took no position on the jurisdictional issue. Ms. Atkinson also sought costs for both her appeal and her application. The insurer was opposed to any costs order, but argued that, to the extent that the Court was prepared to order costs, they should be ordered against the LAT.
[8] At the conclusion of the hearing, we advised the parties that we would be issuing an order, on consent, quashing the decisions of the HRTO. We advised the parties that we would not be providing any directions to the HRTO in terms of how this case was to be managed. We also advised that we would be quashing the LAT’s decisions and remitting the matter back to the LAT for a new hearing before a different adjudicator, and that our reasons for that decision would follow in due course. We advised that we were reserving on the decision on costs. Our reasons respecting all of the issues are set out below.
Background
a) The Parties and the Original Decision
[9] Ms. Atkinson was involved in an MVA on December 3rd, 2019. She subsequently sought various types of benefits, including attendant care, housekeeping, prescriptions and therapy. Her insurer was the Respondent, Economical.
[10] Ms. Atkinson was sent for an Independent Medical Examination (“IME”) by Economical. That examination was conducted by Dr. Khaled on November 20th, 2020. There is some dispute over whether this examination was done properly and whether it properly considered all of Ms. Atkinson’s conditions. However, Dr. Khaled opined that Ms. Atkinson was not disabled as a result of the accident. Based on this report, on February 22nd, 2021, Economical terminated Ms. Atkinson’s benefits. In February of 2022, Ms. Atkinson appealed this decision to the LAT.
[11] In April of 2021, Ms. Atkinson launched a human rights complaint against Dr. Khaled and Economical. Ms. Atkinson alleged that Dr. Khaled engaged in discrimination by limiting his assessment of her disability to “objective” injuries, thus excluding real injuries that she was suffering. Ms. Atkinson also alleged that Economical utilized this discriminatory opinion to their benefit, knowing that it was discriminatory.
b) The Proceedings Before the LAT
[12] Ms. Atkinson’s appeal for various benefits was filed with the LAT on February 17th, 2022. A case conference was held on December 20th, 2022, and the matter was set down for eight (8) days of hearing. The hearing took place before the LAT beginning on June 28th, 2023.
[13] As part of the proceedings before the LAT, Ms. Atkinson requested that Dr. Khaled’s reports be excluded if he did not testify. This request was opposed by Economical. The request to exclude Dr. Khaled’s reports was denied by the LAT on the basis that there had been plenty of notice prior to the hearing that Economical would be seeking to rely on Dr. Khaled’s reports, that it would be unfair to Economical to require that it proceed with the hearing without these reports, and that Ms. Atkinson would not be prejudiced if the reports were admitted into evidence.
[14] On October 3rd, 2023, the LAT issued a decision denying all of Ms. Atkinson’s claims for benefits. Ms. Atkinson appealed that decision and asked for a reconsideration of the decision. The same LAT adjudicator dismissed the reconsideration request on January 18th, 2024, finding that his decision was both correct and reasonable.
[15] On November 2nd, 2023, Ms. Atkinson filed an appeal of the original decision of the LAT. This appeal included allegations that the LAT was institutionally biased against Ms. Atkinson’s lawyer, as well as an Affidavit from a former LAT member (“the Affidavit”), which was filed as part of a sealed record. Ms. Atkinson’s allegations of institutional bias were the same as the allegations that had been made in Derenzis v. Gore Mutual, and the materials were the same. A sealing order was issued by the Divisional Court in respect of the materials in Derenzis, (2024 ONSC 1226). In the meantime, on January 8th, 2025, Ms. Atkinson filed a judicial review of the LAT’s decision.
[16] The Divisional Court released its’ reasons in Derenzis on May 6th, 2025: 2025 ONSC 2732. That decision found that the materials in the Affidavit to have been properly struck out by the LAT because they were delivered as part of an improper reply and because the impugned materials were covered by deliberative secrecy. As a result, the sealed materials could not be relied upon by Ms. Atkinson in her proceeding.
[17] In addition to Derenzis, at the time that Ms. Atkinson commenced these proceedings before the Divisional Court, the Court was also considering an appeal in a different case, Plante v. Economical Insurance Company, 2024 ONSC 7171. That decision, released on December 20th, 2024, addressed a number of procedural issues. One of those issues was the question of whether the LAT had erred in law by permitting Economical to place into evidence and rely on a report from an expert who was not produced for cross-examination. Ms. Plante’s counsel had put Economical on notice of his desire to cross-examine the expert long before the hearing. The issue is much the same as one of the key issues in this case. The Divisional Court found, among other things, that accepting a challenged expert report without permitting cross-examination was a breach of natural justice and procedural fairness. A new hearing was ordered.
[18] The LAT did not take any further steps in this matter until after Ms. Atkinson had perfected both her appeal and her judicial review application. On July 31st, 2025, the LAT, on its own initiative, decided to reconsider both the original decision and the reconsideration decision of the LAT Adjudicator. The basis for the reconsideration was whether the LAT had committed a breach of procedural fairness by not excluding Dr. Khaled’s reports.
[19] At the direction of the LAT, the parties provided submissions. Ms. Atkinson argued that the LAT was functus officio and could not engage in a further reconsideration of the decisions. Economical argued that there was no breach of procedural fairness. On September 12th, 2025, the LAT issued a decision in which it found that it had the jurisdiction to reconsider the previous two decisions and that they should both be cancelled on the basis of the breach of procedural fairness that resulted when Dr. Khaled’s reports were relied upon without permitting Ms. Atkinson to cross-examine him.
c) The Proceedings Before the HRTO
[20] The proceedings before the HRTO did not move forward, pending the outcome of the LAT proceeding. A series of extensions of time for filing various HRTO forms were granted throughout 2022. The materials filed by the various Respondents to the HRTO complaint argued that the HRTO should dismiss Ms. Atkinson’s complaint on the basis that the matter could more appropriately be dealt with by the LAT.
[21] On October 29th, 2024, the HRTO requested submissions from Ms. Atkinson as to whether the HRTO should dismiss her complaint because the LAT had dealt with the substantive issues. Before responding to these directions, Ms. Atkinson sought additional documents from the Respondents, but the HRTO denied this request on October 31st, 2024, on the basis that it was premature.
[22] Ms. Atkinson then provided substantive submissions in response to the HRTO’s October 29th, 2024, directions. She argued, inter alia, that the facts underpinning the LAT proceedings were different than the facts underpinning the HRTO proceedings, that the HRTO proceeding should continue because of the fact that the LAT proceedings were unfair and that she had not had an opportunity to advance her human rights arguments before the LAT. On December 31st, 2024, the HRTO dismissed Ms. Atkinson’s application on the basis that the LAT proceeding had dealt with the substance of Ms. Atkinson’s application.
[23] Ms. Atkinson sought reconsideration of the HRTO decision. On April 24th, 2025, the HRTO issued its reasons on the reconsideration application (2025 HRTO 1044). Those reasons re-analyzed the arguments that Ms. Atkinson had advanced in her original submissions and determined that there was no basis to change the original decision. As a result, the request for reconsideration was denied.
[24] On September 22nd, 2025, counsel for the HRTO confirmed by e-mail that the HRTO was prepared to consent to a Court order quashing the two HRTO decisions. That Order was duly issued by this panel.
The Standard of Review
[25] This court’s jurisdiction in this case differs depending on which tribunal is being appealed from. It is useful, therefore, to briefly set out those differences. Ms. Atkinson appealed the LAT’s decisions on questions of law alone. This court has jurisdiction to deal with questions of law under section 11 of the Licence Appeal Tribunal Act 1999, S.O. 1999, c. 12, Sched. G. Appeals are limited to questions of law which are reviewable on a correctness standard: Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653.
[26] Ms. Atkinson also had the ability to bring a concurrent application for judicial review of the LAT’s decision and has done so concurrent with her appeal: Yatar v. T.D. Insurance Meloche Monnex, 2024 SCC 8.
[27] There is no right of appeal from a decision of the HRTO. Therefore, Ms. Atkinson has brought a judicial review application of the HRTO’s decisions. This court has jurisdiction to hear that application: Judicial Review Procedure Act, R.S.O. 1990, c. J. 1, ss. 2 and 6(1).
[28] The standard on the judicial review application, which flows from both the HRTO’s decision and the LAT’s decision, is reasonableness. Further, there is no standard of review for questions of fairness. Any determination of whether the proceeding is fair is determined by applying the factors set out in Baker v. Canada (Minister of Citizenship and Immigration), 1999 699 (SCC), [1999] 2 S.C.R. 817.
Positions of the Parties
[29] Ms. Atkinson takes the position that the LAT had no jurisdiction to issue the September 12, 2025, decision because the LAT was functus officio. As a result, Ms. Atkinson argues that this Court should issue an order quashing all three LAT decisions. In respect of the LAT hearings, Ms. Atkinson takes the position that she should be entitled to costs in the sum of $56,653.67 inclusive of disbursements.
[30] Economical takes no position on whether the LAT’s decisions should be quashed. From Economical’s perspective, the result is the same, which is that there will have to be a new hearing. In respect of the costs, Economical argues that there should be no costs payable as Ms. Atkinson already has what she wants (a new hearing) from the LAT. In the alternative, if costs are payable to Ms. Atkinson, Economical argues that the LAT should pay them because the LAT decided to issue the September 12th, 2025, decision and that the procedural difficulties in this case were the LAT’s responsibility.
[31] In respect of the HRTO decisions, Ms. Atkinson takes the position that these decisions should also be quashed. She also argues that this Court should issue directions to the HRTO requiring a hearing on the merits of Ms. Atkinson’s complaint and precluding the HRTO from engaging in any preliminary considerations of Ms. Atkinson’s case. Ms. Atkinson also seeks costs of the HRTO proceeding in the sum of $21,357.95.
[32] The HRTO and the individual Respondents have consented to an order quashing the two HRTO decisions. However, the HRTO and the individual Respondents oppose any order requiring a hearing on the merits rather than permitting the HRTO to follow its’ usual procedures.
[33] During discussions with the Panel, Ms. Atkinson’s counsel appeared to abandon the argument that this Court should direct the HRTO as to how to conduct any subsequent hearing. For clarity, I would not accede to this request. This matter is being sent back to both the LAT and to the HRTO for further adjudication. There are a range of possible outcomes from the LAT hearing, including ones where the LAT may appropriately deal with the issues in the HRTO proceeding, such that the HRTO could possibly dispose of Ms. Atkinson’s complaint on a preliminary basis. The issues of concurrent jurisdiction and case-splitting as set out in the HRTO’s decisions remain live ones. As this Court cannot foresee what the outcome of either the HRTO or the LAT proceeding will be, we should not be directing the HRTO to either follow a particular procedure or arrive at a particular outcome.
Issues
[34] Given the factual matrix and the positions of the parties, the following issues must be addressed:
(a) Did the LAT have the jurisdiction to issue the September 12th, 2025, decision? If not, what remedy should be provided?
(b) Should costs of the LAT appeal and judicial review be awarded to Ms. Atkinson? If so, who should pay those costs?
(c) Should costs of the HRTO judicial review application be awarded?
[35] I will deal with each issue in turn.
Issue #1- The LAT’s Jurisdiction
[36] The decision under challenge on this issue is the LAT’s decision of September 12th, 2025, cancelling the LAT’s previous two decisions. The Applicant challenges the LAT’s jurisdiction to issue a second reconsideration decision more than a year after their original reconsideration decision was issued and while the decisions were the subject of both a judicial review and an appeal. Determining this issue requires consideration of both the statutory provisions and the doctrine of functus officio.
Statutory Provisions
[37] The jurisdiction of a statutory tribunal is entirely circumscribed by statute: Jacobs Catalytic Ltd. v. International Brotherhood of Electrical Workers, Local 353, 2009 ONCA 749, (2009) 98 O.R. (3d) 677 at para. 18. As a result, the starting point in my analysis is what does the statute, and the accompanying rules permit the LAT to do in this case?
[38] Section 21.2 of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22 (“SPPA”) gives a tribunal the authority to review all or part of its own decision or order, and the authority to confirm, vary suspend or cancel the decision or order. This provision only applies if the tribunal has made rules under section 25 of the SPPA giving it the authority to review decisions. This power is broader than the power to correct typographical, calculation or similar type errors. The power to correct typographical errors is given to a tribunal automatically and may be exercised “any time”: SPPA, section 21.1.
[39] The LAT’s Rules of Procedure specifically set out the reconsideration process in Rule 18. Rule 18.1 sets out the fact that a request for reconsideration can be made by a party within twenty-one (21) days of the Tribunal’s decision. These reconsideration decisions “may” be heard by the same Member who heard the original case.
[40] The criteria for granting a reconsideration are set out in Rule 18.2, which states:
18.2 CRITERIA FOR GRANTING RECONSIDERATION
The Tribunal shall not make an order under 18.4(b) unless satisfied that one or more of the following criteria are met:
a. The Tribunal acted outside its jurisdiction or committed a material breach of procedural fairness;
b. The Tribunal made an error of law or fact such that the Tribunal would likely have reached a different result had the error not been made; or
c. There is evidence that was not before the Tribunal when rendering its decision, could not have been obtained previously by the party now seeking to introduce it, and would likely have affected the result.
[41] The LAT also has the authority to review decisions on its own initiative. Rule 18.5 states:
18.5 REVIEW ON OWN INITIATIVE
At the discretion of the Chair or delegate, the Tribunal may, on its own initiative, review any decision of the Tribunal. The Tribunal's review shall take place within a reasonable time after the decision or order is made.
When conducting a review on its own initiative, the Tribunal shall not make an order under Rule 18.4(b) unless it is satisfied that one or more of the criteria in Rule 18.2 are met. Before making such an order, the Tribunal will provide the parties with an opportunity to make submissions.
[42] Therefore, the LAT has the authority to reconsider decisions on its own initiative, as long as it does so within a “reasonable” time. The question of what is reasonable is important to the disposition of this appeal. There is also an issue of whether the LAT can reconsider a decision a second time, given the doctrine of functus officio. I turn to those issues now.
The Scope of the LAT’s Authority to Reconsider
[43] In assessing whether the LAT had the authority to reconsider the decision when they did, the factual matrix must be remembered. The original LAT decisions had been made more than a year and a half prior to the September 12th, 2025, decision. The Appeal of the LAT’s decision had been brought at the end of 2023 and the judicial review application was brought at the beginning of 2005. By the time the LAT began the process to reconsider its’ decision for a second time, Ms. Atkinson’s appeal and judicial review application were fully perfected and ready for hearing before the Divisional Court.
[44] This factual matrix must also be considered against the backdrop of both the broad wording of Rule 18.5 and the principles of functus officio. For Courts, the general rule is that final decisions cannot be reopened. Given that the decisions of administrative tribunals are not subject to an automatic right of appeal, the rules are more relaxed for them. As the Court noted in Chandler v. Association of Alberta Architects, 1989 41, [1989] 2 S.C.R. 848 (at pages 861-2):
I do not understand Martland J. to go so far as to hold that functus officio has no application to administrative tribunals. Apart from the English practice which is based on a reluctance to amend or reopen formal judgments, there is a sound policy reason for recognizing the finality of proceedings before administrative tribunals. As a general rule, once such a tribunal has reached a final decision in respect to the matter that is before it in accordance with its enabling statute, that decision cannot be revisited because the tribunal has changed its mind, made an error within jurisdiction or because there has been a change of circumstances. It can only do so if authorized by statute or if there has been a slip or error within the exceptions enunciated in Paper Machinery Ltd. v. J. O. Ross Engineering Corp., supra.
To this extent, the principle of functus officio applies. It is based, however, on the policy ground which favours finality of proceedings rather than the rule which was developed with respect to formal judgments of a court whose decision was subject to a full appeal. For this reason, I am of the opinion that its application must be more flexible and less formalistic in respect to the decisions of administrative tribunals which are subject to appeal only on a point of law. Justice may require the reopening of administrative proceedings in order to provide relief which would otherwise be available on appeal.
[45] These principles have been explained by this Court in Windsor (City) v. Ontario Nurses’ Association, 2019 ONSC 6883, (2019) 148 O.R. (3d) 701 at paras 11-14:
[11] The doctrine of functus officio exists in order to import finality into legal proceedings. In general, a tribunal cannot revisit [page704] a case it has already decided. However, the doctrine is not absolute. It is subject to exceptions.
[12] Some of these exceptions are identified in Chandler v. Assn. of Architects (Alberta), 1989 41 (SCC), [1989] 2 S.C.R. 848, [1989] S.C.J. No. 102. For example, the court cites the ability of an adjudicator to "correct clerical mistakes or errors arising from an accidental slip or omission": para. 22. It also recognizes statutory provisions that permit a tribunal to reconsider its decision: para. 76.
[13] The court in Chandler also adopted the exceptions set out in Paper Machinery Ltd. v. J.O. Ross Engineering Corp., 1934 1 (SCC), [1934] S.C.R. 186, [1934] S.C.J. No. 6, in which the court realized "some matter which should have been dealt with in the reasons has been overlooked" as an exception to the doctrine of functus officio:para. 76.
[14] Furthermore, the Chandler court recognized the ability of a court to reopen a decision "where there was an error in expressing the manifest intention of the court": para. 75. This exception to the functus officio rule was applied in N.S.G.E.U., at para. 41.
[46] When these principles are considered, I am of the view that the LAT did not have jurisdiction to reconsider this decision a second time for two reasons.
[47] First, the statute requires the LAT to initiate a reconsideration decision within a “reasonable” time period. In this case, the LAT did not initiate a reconsideration decision for a year and a half after it had made the original decision. The time in this case was not a “reasonable” time period.
[48] The term reasonable must be read in conjunction with the twenty-one-day period that parties have in order to bring a reconsideration application. While the LAT does not have such a tight and specific timeline, this twenty-one day period informs the magnitude of the “reasonable” time period that the LAT has to reconsider a decision. The LAT’s rules intend for reconsideration applications to be brought promptly after the decision is rendered and the expectation is that it would generally be weeks.
[49] Second, permitting the LAT to review a decision a second time, after appeal and review proceedings have been launched in this court, without any direction from this court that it may do so, would be contrary to the doctrine of functus officio. The LAT argues that the decision in Plante represented a change in the law and gave the LAT the jurisdiction to reconsider the decision in this case. I disagree. In my view, the LAT’s reconsideration decision interferes with the principle of finality that underpins the doctrine of functus officio in administrative decisions. In CBC v. Manitoba, 2021 SCC 33, [2021] 2 S.C.R. 785, the Court underscored the importance of finality in decision-making, observing that if decision makers could constantly change their decisions, then the appeal record would be written on “shifting sands” and would preclude effective review. Although the Manitoba decision was decided in the course of a court process, that same principle applies in this case.
[50] More generally, the common law is constantly evolving. From time to time, appellate courts will change the law. The effect of those changes on previously decided cases are matters for the parties and the appellate court to work out. They are not matters that the original decision maker can fix.
[51] The LAT’s decision exceeds their jurisdiction as it breaches the finality principle. A tribunal modifying its decision in the shadow of an impending appeal or judicial review raises the “shifting sands” concern that the Supreme Court had in Manitoba. It would be difficult for this Court to effectively review an administrative decision if the decision-maker had the jurisdiction to change their decision in the weeks before the Court hearing. The proper course for the LAT, in all the circumstances, was that taken by the HRTO: to advise the parties that the LAT took the position that the decisions should be quashed by this court and then to consent to that relief in this court.
[52] The LAT’s approach in this case also engages some of the concerns that were present in Jacobs. In that case, the Ontario Labour Relations Board issued supplementary reasons at the request of the successful party and after a judicial review application had been launched. The Court of Appeal found that, where a tribunal had made a final decision with reasons, it did not have the jurisdiction to provide supplemental reasons. The parties were entitled to arrange their affairs on the basis of the final decision, including deciding whether to commence an appeal or seek judicial review. In addition, the Court found that providing supplementary reasons in these circumstances ran “the risk of giving the appearance of the [OLRB]’s attempting to ‘cooper up’ the decision.” (at para. 49).
[53] For these reasons, the September 12th, 2025, reconsideration decision of the LAT must be quashed as being beyond the LAT’s jurisdiction.
Conclusion
[54] Since the LAT did not have the jurisdiction to issue its second reconsideration decision (the September 12th, 2025 decision), then the original and first reconsideration decisions denying benefits continued in force until this panel quashed them at the hearing in November 2025. The parties all agreed that the original LAT decision and the first reconsideration decision could not stand, and I would accept that concession.
[55] Briefly put, in this case the LAT Member who originally heard this appeal, and heard the reconsideration application, made the same error of law as was made in Plante and his decisions cannot stand. Given that the September 12th, 2025, decision was beyond the jurisdiction of the LAT, the doctrine of mootness does not arise, and this Court was required to intervene in order to correct the previous two decisions.
Issue #2- The Costs of the LAT Appeal
[56] The Applicant seeks costs of the LAT appeal in the sum of $56,653.67, inclusive of HST and disbursements from both the LAT and from Economical. The LAT opposes this request for costs, arguing that costs are usually not ordered against (or in favour of) administrative tribunals. Economical argues that there should be no costs or, in the alternative, that any costs awarded should be awarded against the LAT.
[57] Generally, costs are not awarded for or against a tribunal in a judicial review. This is because a tribunal’s submissions before the Court are generally limited to jurisdictional issues: R. v. Ontario Labour Relations Board, ex. parte Labourers International Union of North America Local 183, 1969 326, [1969] 2 O.R. 116. The circumstances in which costs may be awarded for or against a tribunal are very limited. As noted in York Advertising v. Ontario (Human Rights Commission), 2005 43910 (ON SCDC) at para 2:
[2] We recognize that it is only in very rare circumstances that this Court should award costs against a statutory tribunal. It is not sufficient, to justify making such an award, that the tribunal be found only to have acted in error or beyond its jurisdiction. Rather, there must be some unusual quality about the conduct of the tribunal that requires us to invoke our jurisdiction to make such an award in order to achieve a result that is just.
[58] The mere fact that an administrative tribunal has made an error will not be sufficient to justify an award of costs: Barrette v. Rayonier AM Canada Industries Inc. et. al., 2025 ONCS 319 (para. 18). However, there are some circumstances where a tribunal acts as an adversary that they will be either entitled to costs or subject to an award of costs: Reynolds v. Ontario (Alcohol and Gaming Commission, Registrar), 2019 ONSC 7057 at paras. 4 and 5.
[59] I am not persuaded that this case has the unusual qualities necessary to justify an award of costs against the LAT. The LAT’s first two decisions in this case would not have attracted an award of costs against the LAT, just as the decisions in Plante did not attract an award of costs against the LAT. In both cases, the same error was made, and it is the type of error that is corrected on appeal. The September 12th, 2025, decision was an effort to try and ensure that this matter proceeded on the merits. Again, while the decision contains an error of law, there is nothing so egregious or adversarial about the decision that an award of costs should be justified.
[60] This brings me to the question of whether Economical should also pay costs. I am of the view that they should. I acknowledge that, at the hearing of the appeal, Economical took no position on whether the September 12th, 2025, decision was within the LAT’s jurisdiction. However, Economical did take the position, both before the LAT and in the materials that it originally filed with this Court, that the decision to admit Dr. Khaled’s report without requiring him to be cross-examined, was not a breach of procedural fairness. That position required the Applicant to at least begin this judicial review proceeding.
[61] Economical was one of the parties to the Plante decision. As a result, they would have known in December of 2024 that the decision to admit Dr. Khaled’s report without cross-examination was unlikely to survive judicial scrutiny. While I acknowledge that one of the problems in Plante was the LAT’s unilateral decision to reduce the amount of hearing time, admitting an expert report without permitting cross-examination was also an issue in Plante, so I reject Economical’s assertion that the Plante decision dealt with “totally distinct” issues from the issues in Ms. Atkinson’s case. A principal issue in this case had been decided against Economical in the Plante case.
[62] It was open to Economical to attempt to find a compromise, either by joining with Ms. Atkinson in asking for the decision to be quashed or in taking no position before either this Court or before the LAT during the reconsideration process. Instead, Economical attempted to preserve the finding that Dr. Khaled’s report could be admitted all the way up to when the LAT conducted its reconsideration in September of last year. It was only after the LAT cancelled the first two decisions that Economical modified its position.
[63] As a result, Ms. Atkinson was put to the expense of preparing and pursuing both her judicial review and her appeal of these decisions. Having been successful in her pursuit of those issues, she should be entitled to some of her costs as against Economical.
[64] That being said, once Economical modified its position, Ms. Atkinson and Economical should have been arguing over the payment of costs of the proceedings in this Court rather than arguing the merits of the appeal. The fact that Ms. Atkinson pursued the issue of costs against the LAT instead of getting on with the merits of her case before the LAT is a reason to reduce the quantum of costs to which Ms. Atkinson would otherwise be entitled
[65] I must now set the quantum of costs. I am of the view that, even if Ms. Atkinson was entitled to all of her costs of the appeal as against Economical, the $56,000 sought by Ms. Atkinson is excessive and I would substantially reduce it. Any amount awarded must also be reduced to take into account the fact that Ms. Atkinson was unsuccessful on some of the issues that were advanced. Therefore, I am of the view that Economical should pay costs to Ms. Atkinson in the sum of $15,000.00 all inclusive.
Issue #3- The Costs of the HRTO Application
[66] Counsel for Ms. Atkinson seeks costs of the HRTO application in the sum of $21,357.95 inclusive of HST and disbursements. The Respondents in the HRTO proceeding all oppose this request, and the HRTO also argues that it should not be the subject of a costs award given the general principles set out in the case-law.
[67] I would not award the Applicant any costs of the HRTO Application for three reasons. First, the Order quashing the HRTO decisions was granted on consent, the HRTO followed the procedure that the LAT ought to have followed in reaching that outcome. Further, as discussed above, it is rare for the Court to award costs of a proceeding either for or against an administrative tribunal. Given the approach that the HRTO adopted, there is no reason on these facts to depart from the general approach of no costs for or against an administrative tribunal.
[68] Second, costs are not normally awarded when the parties reach an agreement prior to the hearing. In this case, that is particularly important as the personal respondents, Dr. Khaled and Ms. Miazga, had no right to participate in the LAT proceedings that resulted in the proceedings before this Court. The HRTO’s ruling was driven by the outcome of the LAT proceeding, and it would be unfair to impose costs on a party who had no real control over or participation in the main hearing, especially when they have behaved reasonably in this proceeding.
[69] Finally, the only issue that was left to argue on the HRTO application was Ms. Atkinson’s request for an order requiring the HRTO to conduct a hearing on the merits of her case. Although that relief was not seriously pursued in argument before this Court, I have explained above why it was not appropriate to fetter the HRTO’s discretion in advance. The HRTO, Economical and the individual Respondents were successful on that issue. It would be an unusual outcome indeed to give a party who lost the only issue that the Court was called upon to even consider costs of the proceeding.
[70] The HRTO quite properly does not seek costs. However, the other Respondents have been put to the trouble and expense of responding to Ms. Atkinson’s arguments that the HRTO’s discretion should be fettered, as well as to addressing the costs issue. Given the normal principles that costs follow the event, they should be entitled to some award of costs. I would award each group of respondents $1,500.00 inclusive of HST and disbursements for the costs of this application. For clarity, that is one set of costs for Economical and Ms. Miazga, one set of costs for Direct IME and one set of costs for Dr. Khaled.
Disposition
[71] As indicated in the endorsement released on November 20, 2025 (2025 ONSC 6463), we made the following orders either at or shortly after the conclusion of the hearing:
(a) The HRTO decisions dated December 31, 2024, and April 24, 2025, were quashed and the matter remitted back to the HRTO.
(b) The decisions of the LAT dated October 3, 2023, January 18, 2024 and September 12, 2025 were quashed and the matter remitted back to the LAT.
[72] In addition, I would order that Economical pay Ms. Atkinson the sum of $15,000.00 in costs, all inclusive.
[73] I would order that Ms. Atkinson pay costs of $4500.00, inclusive, on account of the HRTO application, split equally between the three sets of Respondents. I would not order costs payable by or to the HRTO.
[74] I would order that all costs are to be paid within thirty (30) days.
“W.M. LeMay J.”
I agree: “D.L. Corbett J.”
I agree: “M.D. Faieta J.”
Released: May 5, 2026
DIVISIONAL COURT FILE NO.: 625/23, 083/25 and 084/25
DATE: 20260505
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
D.L. Corbett, M.D. Faieta and W.M. LeMay JJ.
BETWEEN:
PATRICIA ATKINSON
Applicant/Appellant
– and –
ECONOMICAL INSURANCE COMPANY and LICENCE APPEAL TRIBUNAL
Respondents
AND BETWEEN:
PATRICIA ATKINSON
Appellant
-and-
ECONOMICAL INSURANCE COMPANY, Dr. Mohamed Khaled, Direct IME, Sarah Miazga, HUMAN RIGHTS TRIBUNAL
Respondents
REASONS FOR DECISION
W.M. LeMAY, J.
Released: May 5, 2026