RECONSIDERATION DECISION
Before: D. Gregory Flude, Vice-Chair
Tribunal File Number: 19-003485/AABS
Case Name: [LM] vs. The Co-operators General Insurance Company
Written Submissions by:
For the Applicant: Peira A. Segreto, Counsel
For the Respondent: Laura Emmett and Julianne Brimfield, Counsel
OVERVIEW
1The Respondent, the Co-operators General Insurance Company (the “Co-operators”), filed a request for reconsideration of a preliminary issue decision dated April 30, 2020 in which the Tribunal found that the applicant, [LM], was a dependent of his mother and, therefore, an insured under her policy of insurance. As a result of that fining, he was entitled to no-fault insurance benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 O. Reg 34/10 (the “Schedule”) as a result of an accident in which his brother was killed.
2The Co-operators submits that, in holding that Mr. [LM] was an insured as defined in the Schedule, Tribunal made material errors of law and fact. The Respondent is seeking an order:
a. Cancelling the Tribunal’s decision;
b. Varying the Tribunal’s decision to find that Mr. [LM] was not an insured; or,
c. Ordering a rehearing of the preliminary issue.
3Mr. [LM] submits that the s. 18 of the Licence Appeal Tribunal, Animal Care Review Board, and Fire Safety Commission Common Rules of Practice and Procedure, Version I (October 2, 2017) as amended (“ Rules”) do not permit the Co-operators to seek reconsideration as the decision was a preliminary issue decision and did not finally dispose of the proceeding. In the alternative, Mr. [LM] submits that there are no errors of fact and law in the decision such that, in their absence, the Tribunal would have reached a different decision and the request for reconsideration should be dismissed on its merits. the applicable rules of the Tribunal.
RESULT
4The Co-operators request for reconsideration is dismissed. The decision appealed does not finally dispose of an appeal and, thus, does not satisfy the requirements of Rule 18.1. In light of this finding, I do not need to consider the appeal on the alleged errors of fact and law.
BACKGROUND
5The background facts are set out in the Tribunal’s decision, but I will briefly recite them here. [LM] is a young man who, at the time of the accident that killed his younger brother Eric, was in the process of transitioning from living at home with his mother to moving out on his own. A couple of months before the accident he had started a job working in construction for a family friend. This was his second full-time job since leaving school. He and his brother decided to rent an apartment together with his brother’s girlfriend. They entered into an agreement to rent the apartment effective September 1, 2018 and over the month of September moved furniture into the space. They began living there towards the end of September. On October 28, 2018, Mr. [LM]’s brother, Eric, was killed in a road accident.
6Mr. [LM] has claimed no-fault insurance benefits under the Schedule through his mother’s insurance policy. A dispute arose between Mr. [LM] and the Co-operators whether Mr. [LM] was a dependent of his mother at the time of the accident. If he met the definition of “dependent” he was an insured and entitled to claim no-fault benefits; if not, he was not an insured and not entitled to benefits. At a case conference held on November 1, 2019 the parties agreed to refer the question of Mr. [LM]’s insurance status to a written preliminary issue hearing.
7The Tribunal held that Mr. [LM] was an insured and ordered the Co-operators to process his claim under his mother’s policy. It is important to note that this wording does not entitle Mr. [LM] to any of the benefits to which he claims entitlement. It simply means that the Co-operators must consider them. In fact, the order from the November 1, 2019 case conference requires that the matter now proceed to a further case conference to schedule a hearing on Mr. [LM]’s entitlement to the benefits.
ANALYSIS
8The right to request reconsideration of a Tribunal decision is set out in Rule 18 of the Rules. Rule 18.1 limits requests for a reconsideration to “any decision of the Tribunal that finally disposes of an appeal.” In this case, the Rule is asymmetrical. Had Mr. [LM] lost the preliminary issue hearing, his right to advance a claim before the Tribunal would have been extinguished on the ground that he was not an insured. His appeal would have been finally disposed of triggering Rule 18.1. He was successful, however, and his claim at the Tribunal may proceed. The Co-operators cannot avail itself of the provisions of Rule 18.
9The Co-operators submits that the impact of the decision is to deprive of it of a major aspect of its defence to Mr. [LM]’s claim. It relies on paragraph [9] of 2441472 Ontario Inc. v. Collicutt Energy Services, 2017 ONCA 452 (“Collicut”) where the Court of Appeal defined the difference between a final order and an interlocutory order as follows:
An interlocutory order is one that does not determine the real matter in dispute between the parties. It does not determine the very subject matter of the litigation, but rather only a collateral matter: Hendrickson v. Kallio, 1932 CanLII 123 (ON CA), [1932] O.R. 675, at p. 678. The classic test is whether the order finally disposes of the rights of parties: Hendrickson, at p. 680. Furthermore, an order that disposes of an issue raised by the defence, thereby depriving the defendant of a substantive right that could be determinative of the entire action, is final: Ball v. Donais (1993), 1993 CanLII 8613 (ON CA), 13 O.R. (3d) 322 (C.A.).
10Collicut is one of a line cases in the courts addressing the nature of court orders. It is an important issue because the answer to the question whether the order is final or interlocutory defines in which court, Court of Appeal or Divisional Court, the appeal must be brought and whether the appeal is as of right or requires leave has significant impact on the rights of parties and the time limits within which to bring an appeal.
11The Co-operators also relies on WF v. Aviva Insurance Company, 2020 CanLII 12738 (ON LAT) (“WF”). The request for reconsideration in WF arose out of a finding by the adjudicator at first instance that Aviva had a duty to define the consequences of non-compliance with its request for documents. It was agreed that the applicant had never responded to the insurer’s request for documents under s. 33 of the Schedule. The insurer terminated benefits in June 20, 2018. The applicant argued that because Aviva had not set out clear and unequivocal information about the applicant’s obligations and the consequences of non-compliance in correspondence prior to terminating the benefit, it should be required to continue payment until it was clear and unequivocal. That date was agreed to be October 28, 2018. On reconsideration, the Tribunal found there was no express duty to define the applicant’s obligations and define the consequences of non-compliance. The benefit was properly terminated on June 20, 2018.
12I am of the view that Collicut is not helpful. While the courts have expended significant effort over the years on the question of the difference between a final and an interlocutory order, in doing so they have interpreted the Rules of Civil Procedure and the Courts of Justice Act. Neither of these pieces of legislation apply to the Tribunal and the Tribunal has its own rule requiring that an order or decision must finally dispose of an appeal. The wording of the Rule is clear to the point of bluntness.
13I also find that WF is not persuasive. The facts are markedly different from the present case, dealing as they do with an ongoing right to a non-earner benefit. It addresses an alleged duty of an insured to explain sections of the Schedule when denying a benefit, something that would seem to extend the existing case law defining the duty of an insurer to make a denial clear and unequivocal and provide information on how to appeal.
14I find that the courts have set out clear policy decisions dealing with appeals and applications for judicial review from Tribunal orders that are not finally dispositive of the issues before the Tribunal. The policy is set out in Taylor v. Aviva Canada Inc., 2018 ONSC 4472 (“Taylor”) where the Court states:
This court is reluctant to hear appeals from interim or interlocutory orders of administrative decision makers for the same reason that it is reluctant to hear judicial review proceedings before the administrative decision-making process has ended. Such appeals fragment the administrative proceeding and increase costs. Accordingly, courts have interpreted language that grants an appeal from a “decision or order” of a board or tribunal as limited to an appeal of a final order (see, for example, Roosma v. Ford Motor Co. of Canada Ltd. (1988), 1988 CanLII 5633 (ON SCDC), 66 O.R. (2d) 18 (Div. Ct.), at para. 26; and Rudinskas v. College of Physicians and Surgeons of Ontario, 2011 ONSC 4819, 285 O.A.C. 218 (Div. Ct.), at paras. 72-73). If a proceeding is “fatally flawed”, an interim or interlocutory decision might be challenged. However, at such a hearing, prematurity may still be raised by the opposing party, and the court may refuse to hear the matter
15Taylor was followed in Traders General Insurance Company v. Rumball, 2019 ONSC 1412 (“Rumball”) and, by extension, Allstate Insurance Company v. Billard, 2019 ONSC 6265 (“Billard”). In Billard the Court states, citing Rumball:
From a policy perspective, this court has repeatedly expressed concern that premature applications for judicial review actually increase cost and delay overall. In Traders General Insurance Company v. Rumball, 2019 ONSC 1412, at para. 23, Favreau J. wrote:
…the Court is entitled to guard against the inefficiency, extra expense and waste of judicial resources resulting from fragmented administrative proceedings. In this case, it is notable that the LAT’s decision on the preliminary issue was issued over a year ago, at which time the parties were directed to schedule a case conference to deal with the balance of the issues in the case. If the parties had complied with this direction and Traders had not chosen to pursue this appeal, the matter may well have been resolved by now.
16Rumball and Billard have a direct parallel to current case. Each deals with the expiry of a limitation period. Were the respondent’s to be successful, the appeals to the Tribunal for the benefits in dispute would be barred. In the present case, success by the Co-operators bars further action by Mr. [LM]. On each of Rumball and Billard, the Court pointed out that the question of the limitation period would still be a live issue should the insurance company appeal the final determination to the Divisional Court. That is, of course, equally the case here.
17While decisions on prematurity from the courts address when the court will choose to intervene and are not concerned specifically with Rule 18.1, Rule 18.1 mirrors that policy by requiring parties to see a file through to completion before seeking reconsideration. The rule captures the mandate of the Tribunal set out in s. 2 of the Statutory Powers Procedure Act, R.S.O. 1990, Chapter S.22 (“SPPA”) “to secure the just, most expeditious and cost-effective determination of every proceeding on its merits.” Fragmenting administrative proceedings by seeking reconsideration on decisions that do not finally dispose of an appeal does nothing to further that mandate.
CONCLUSION
18For the reasons set out above, I find that the Co-operators cannot seek reconsideration of the Tribunal’s decision holding that Mr. [LM] is an insured under his mother’s policy. The decision does not finally dispose of the appeal.
19The matter will proceed to a case conference. The parties will have 14 days from the date of the release of this decision to coordinate mutually agreeable dates to fall within 60 days of the release for a case conference. If they cannot agree, the Tribunal will set a date.
D. Gregory Flude
Vice-Chair
Tribunals Ontario - Safety, Licensing Appeals and Standards Division
Date of Issue: March 26, 2021