CITATION: Traders General Insurance Company v. Rumball, 2019 ONSC 1412
DIVISIONAL COURT FILE NO.: 090/18
DATE: 20190228
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
MULLINS, MYERS, and FAVREAU JJ.
B E T W E E N :
TRADERS GENERAL INSURANCE COMPANY
Appellant
– and –
SHELLEY RUMBALL
Respondent
Eric K. Grossman and Patrick Baker, for the Appellant
Bryan Fromstein and James Armstrong, for the Respondent
HEARD at Toronto: February 27, 2019
Favreau J.
The appeal
[1] At the conclusion of the hearing on February 27, 2019, the Panel advised the parties that the appeal was dismissed as premature, with reasons to follow. These are the reasons for the dismissal.
[2] The appellant, Traders General Insurance Company (“Traders”), appeals from a decision of the Licence Appeal Tribunal (the “LAT”), dated February 5, 2018, wherein the LAT found that the application brought by the respondent, Shelly Rumball, for Income Replacement Benefits was not barred by the two year limitation period set by section 56 of the Statutory Accident Benefits Schedule, O. Reg. 34/10.
[3] The appellant seeks an order setting aside the Tribunal’s decision, and asks this Court to make a finding that Ms. Rumball’s application to the LAT is barred by the two year limitation period.
Ms. Rumball’s application for benefits
[4] Ms. Rumball was involved in a motor vehicle accident on December 28, 2014.
[5] She applied for Income Replacement Benefits from her insurer, Traders. Ms. Rumball filed her first Disability Certificate on January 21, 2015. On March 4, 2015, Traders sent Ms. Rumball a letter advising her that she was eligible for benefits from January 4, 2015 to February 25, 2015, which was the date Ms. Rumball returned to work.
[6] The letter stated:
Should you be off work again due to the injuries sustained [in the] accident, we would require an updated Disability Certificate (OCF-3) to determine your eligibility. Per Section 36(2)(3) of the SABS an applicant for a specified benefit shall submit a completed Disability Certificate (OCF-3) that indicates you meet the disability test. There is no entitlement to benefits for any period before the updated Disability Certificate is submitted.
[7] The letter also contained a warning that Ms. Rumball “has TWO YEARS from the date” of the Insurer’s “refusal to pay, or a reduction of a benefit, to arbitrate or commence a lawsuit in court”.
[8] Ms. Rumball claims that she stopped working on May 31, 2015, due to symptoms from her accident-related injuries.
[9] Ms. Rumball obtained another Disability Certificate on June 13, 2017.
Proceedings before the LAT and the LAT’s decision
[10] On July 17, 2017, Ms. Rumball commenced an application to the LAT for payment of Income Replacement Benefits as of May 31, 2015.
[11] At a case conference held on October 31, 2017, Traders requested that the LAT hold a hearing into the preliminary issue of whether Ms. Rumball’s application was statute barred by section 56 of the Statutory Accident Benefits Schedule, which provides that an application to the LAT in respect of a dispute over a benefit “shall be commenced within two years after the insurer’s refusal to pay the amount claimed”.
[12] Ms. Rumball consented to the request that the matter be decided as a preliminary question, and the Board scheduled the hearing for January 15, 2018. In the Case Conference Report, the Board stated that, if the preliminary issue hearing concluded in Ms. Rumball’s favour, he Board would schedule another case conference to deal with the substantive issues in the case.
[13] In a decision released on February 5, 2018, the LAT found that Ms. Rumball’s appeal was not precluded by the two year limitation period. In reaching this conclusion, the LAT found that the March 4, 2015 letter from the insurer did not constitute a clear and unequivocal denial of Income Replacement Benefits. The LAT based its decision on the language in the letter, including a finding that the letter informed Ms. Rumball that she remained eligible for further Income Replacement Benefits if she had to leave work in the future due to her accident injuries. The LAT also noted that the letter did not advise Ms. Rumball that such a request would only be considered if it was sent within two years of the letter.
[14] The adjudicator concluded that Ms. Rumball’s application was not statute barred, and then indicated that the Tribunal “would schedule a case conference to resume settlement discussions in this matter, and if necessary, to set the substantive issues down for a hearing”.
Issues raised by the parties
[15] Rather than proceeding with the case on the merits before the LAT, Traders has appealed the LAT’s preliminary decision to the Divisional Court. On the appeal, Traders argues that the LAT erred in finding that the letter of March 13, 2017 was not a clear denial of benefits.
[16] In response, relying on this Court’s decision in Oliver v. Brant Mutual Insurance Company, ONSC 3716, Ms. Rumball argues that this Court does not have jurisdiction over the appeal because it does not raise a question of law alone. She argues that, in any event, the LAT’s decision is reasonable.
[17] In their materials, neither party raised or addressed the issue of whether this appeal is premature. On the day before the hearing, the parties were advised that the Panel expected them to address the issue of prematurity at the beginning of the hearing.
Prematurity
[18] Pursuant to s. 11(6) of the Licence Appeal Tribunal Act, S.O. 1999, c. 12, a decision of the Tribunal relating to a matter under the Insurance Act, R.S.O. 1990, c. I.8 can be appealed to the Divisional Court on a question of law only.
[19] In Taylor v. Aviva Canada Inc., 2018 ONSC 4472, at para. 19, the Divisional Court confirmed yet again that a right of appeal from an administrative tribunal, which in that case as here was the LAT, will generally be interpreted as a right to appeal a final decision, and that this Court will rarely entertain appeals from interim or interlocutory decisions:
The fact that both an appeal and a request for reconsideration can proceed at the same time is, however, subject to the jurisprudence of this court. 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 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 (see, for example, Deutsche Bank Securities Limited v. Ontario Securities Commission, 2012 ONSC 1576, 295 O.A.C. 1 (Div. Ct.)).
[20] In our view, this is a clear case of prematurity. Once the LAT decided that the application was not barred by the two year limitation period, the next step in the proceeding was to schedule a hearing on the merits. Traders may or may not be successful in that context. If Traders is successful, the issue of the limitation period becomes irrelevant. If Traders is unsuccessful, then it can choose to appeal the matter, including the limitation period issue, to the Divisional Court, as long as the appeal raises a question of law alone.
[21] During the hearing, the appellant argued that the LAT’s decision is not an interim or interlocutory decision because it finally determined the limitation period issue, and Traders can no longer argue that Ms. Rumball’s claim is statute barred. We disagree that the LAT’s decision leaves Traders with no further recourse on the limitation period issue. First, at the time the decision was issued, the LAT’s rules of procedure allowed Traders to request a review of the decision, but Traders chose instead to pursue an appeal to the Divisional Court.[^1] Second, as mentioned above, in the event Ms. Rumball is successful on the merits before the LAT and Traders chooses to appeal the decision, the limitation period issue can be raised at that time. Requiring that all issues be decided by the LAT before an appeal is commenced except in rare circumstances guards against the unnecessary fragmentation of the case. Unlike the situation in Security National Insurance Company v. Kumar, 2018 ONSC 3556 (Div. Ct.), counsel for Traders did not concede that resolution of the limitation period issue would most likely resolve the issues between the parties. Therefore, if the appeal were decided against Traders, a further hearing on the merits before the LAT would remain necessary.
[22] This is not one of those rare exceptional cases where it would be appropriate for this Court to consider the appeal of an interim or interlocutory decision. The proceeding before the LAT is not “fatally flawed”. There is no issue of the LAT’s jurisdiction to deal with the matter. On the contrary, the issue of Ms. Rumball’s entitlement to Income Replacement Benefits falls squarely within the LAT’s jurisdiction and expertise. Similarly, unlike the decision in Certas Direct Insurance Company v. Gonsalves, 2011 ONSC 3986 (Div. Ct.), there is no fundamental issue of procedural fairness at stake.
[23] While the parties may have agreed to litigate the issues of the limitation period and entitlement in two stages before the LAT, such an agreement is not binding on this Court. Regardless of the agreement between the parties, 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.
Conclusion
[24] Accordingly, the appeal is dismissed as premature. This is without prejudice to the appellant’s ability to raise the limitation period issue in the context of an appeal of the final decision.
[25] At the conclusion of the hearing, after hearing submissions on costs from the parties, we ordered costs payable to Ms. Rumball in the amount of $8,000 inclusive of disbursements and HST within 30 days.
Favreau J.
I agree _______________________________
Mullins J.
I agree _______________________________
Myers J.
RELEASED: February 28, 2019
CITATION: Traders General Insurance Company v. Rumball, 2019 ONSC 1412
DIVISIONAL COURT FILE NO.: 090/18
DATE: 20190228
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
MULLINS, MYERS, and FAVREAU JJ.
BETWEEN:
TRADERS GENERAL INSURANCE COMPANY
Appellant
– and –
SHELLEY RUMBALL
Respondent
REASONS FOR JUDGMENT
FAVREAU J.
RELEASED: February 28, 2019
[^1]: The LAT Rules have since changed, and now provide that reconsideration is only available in the case of decisions that finally dispose of an appeal. At the conclusion of the hearing, counsel for Traders requested that we direct the LAT to allow Traders to seek a reconsideration of the decision in this case because the decision was made prior to this recent change to the Rules. We decline to make such a direction. It will be up to the LAT to decide whether it should accede to a request for reconsideration under these circumstances.