CITATION: Allstate Insurance Company v. Billard, 2019 ONSC 6265
DIVISIONAL COURT FILE NO.: DC-19-31
DATE: 20191030
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
KITELEY, POMERANCE, and MYERS JJ.
BETWEEN:
ALLSTATE INSURANCE COMPANY Applicant
– and –
GINA BILLARD Respondent
Counsel: John Choe, for the applicant Sandi Smith, for the respondent Trevor Guy, for the Licence Appeal Tribunal
HEARD at Hamilton: October 10, 2019
REASONS FOR DECISION
F.L. Myers J.
The Application
[1] Allstate seeks judicial review to set aside the preliminary decision of the Licence Appeal Tribunal dated June 3, 2019, reported as 18-005114 v Allstate Insurance Company, 2018 143515 (ON LAT). In that decision, the tribunal extended the limitation period applicable to the respondent’s claim for attendant care benefits. As a result, the claim for attendant care benefits will proceed to a hearing before the tribunal.
[2] At the hearing of this application, the panel heard counsel first on the issue of whether this application for judicial review was timely. After hearing counsel and deliberating, the panel dismissed this application as premature. The panel did not hear argument on the merits of the limitation period issue.
[3] These are the reasons for the dismissal of this proceeding as premature.
Background Facts and Procedural Steps
[4] Ms. Billard was in a car accident on February 6, 2014. Allstate paid her attendant care benefits for 104 weeks under the Statutory Accident Benefits Schedule – Effective September 1, 2010.
[5] Ms. Billard applied to Allstate to extend her attendant care benefits beyond the 104-week period. On January 12, 2016, the insurer denied Ms. Billard’s request.
[6] Under s.56 of the SABS, Ms. Billard then had two years from January 12, 2016 to appeal to the tribunal from Allstate’s refusal to pay further attendant care benefits. Ms. Billard brought an application to the tribunal on May 18, 2018 - just over four months after the two-year limitation period had expired. The application was not just for additional attendant care benefits. Ms. Billard seeks a determination from the tribunal that she is “catastrophically impaired” as defined in the SABS so as to entitle her to additional or extended eligibility for a number of benefits.
[7] On October 16, 2018, at a case conference, the tribunal ordered that the question of whether Ms. Billard’s claim for attendant care benefits was commenced too late would be determined as a preliminary issue. In the preliminary decision that is the subject matter of this application, the tribunal found that Ms. Billard’s application was commenced after the expiry of the two-year limitation period. This finding is not challenged by either party in this proceeding. The tribunal also held that s.7 of the Licence Appeal Tribunal Act, 1999, SO 1999, c 12, Sch G, gave it authority to extend the limitation period in s.56 of the SABS in appropriate cases. The tribunal then decided to extend the limitation period to allow Ms. Billard’s late claim in this case to continue.
[8] Allstate brought this proceeding to challenge the ruling allowing the claim to continue. Allstate understood that it could not appeal the decision to the court under s.11(6) of the Licence Appeal Tribunal Act, 1999, because it is not the final decision resolving Ms. Billard’s entire claim for benefits. The tribunal has not heard the full claim yet. Similarly, under Rule 18.1 of the Common Rules of the Licence Appeal Tribunal, Animal Care Review Board, and Fire Safety Commission (effective October 2, 2017)[^1] no reconsideration of the preliminary decision was available to Allstate because the preliminary decision extending the limitation period is not a decision, “that finally disposes of an appeal” to the tribunal.
Analysis
[9] Claiming that it had no other avenue to contest the decision to extend the limitation period as a preliminary issue, Allstate brought this application for judicial review.
[10] In my view, Allstate has another, preferable avenue to challenge the preliminary decision extending the limitation period. It can and must go to the main hearing before the tribunal on the merits. It may succeed there and obviate any need to appeal. However, if it is unsuccessful at the main hearing, it retains its full rights to then request a reconsideration of the decision and, if unsuccessful again, to appeal to this court if so advised. Allstate can challenge the limitation period issue in the reconsideration proceeding and in the final appeal.
[11] Proceeding in that manner avoids fragmentation of the tribunal’s proceedings and minimizes cost and delay. It follows the administrative process preferred by the Legislature. It will also enable the court to hear the appeal on a full evidentiary record and to be informed by the intermediate decision of the tribunal member who conducts the reconsideration proceeding.
[12] In Volochay v. College of Massage Therapists of Ontario, 2012 ONCA 541, Laskin JA set out the oft-repeated rule that courts will not review interim decisions absent “exceptional circumstances”:
The application judge recognized the principle that unless exceptional circumstances exist, a court should not interfere in an administrative proceeding until it has run its course. The principle has particular force where adequate alternative remedies are available under the administrative scheme. Ordinarily an affected individual must pursue these remedies before seeking relief from the court.
[13] Counsel for Allstate conceded that this application is premature but submitted that there are exceptional circumstances that justify proceeding in this case. He argues that costs and time will be saved by hearing the limitation issue now because, if Allstate succeeds, the expense and inconvenience of a full-blown tribunal hearing will be avoided.
[14] The possibility of cost savings by a fragmented hearing or a bifurcated trial is routinely the basis asserted for the strategic decision to ask for a review or appeal of a preliminary decision. That does not qualify as exceptional. Moreover, the potential costs-savings rationale has been routinely rejected by courts on both policy and factual bases.
[15] 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.
[16] On the facts of this case, although the parties have arrived at this hearing within four months of the decision under review, Allstate is not correct in claiming that there will be significant costs savings if it succeeds. Regardless of the outcome on the limitation period for attendant care benefits, the hearing before the tribunal will proceed on the multitude of other benefits in issue under the SABS. Counsel for Ms. Billard concedes that one witness, an occupational therapist, may no longer be needed if attendant care benefits are no longer in issue at the hearing. But otherwise, a significant hearing with several experts will still be required in any event. On the facts of this case, there is no material saving of either time or cost to be had by hearing the limitation period issue now.
[17] Allstate’s counsel points to a very recent decision of the tribunal that interpreted the power to extend limitation periods in s.7 of the statute as being inapplicable to the limitation periods in the SABS regulation as Allstate submits. See: 18-001196 v Certas Homes and Auto Insurance Company, 18-001196/AABS. Counsel for Allstate was unable to advise the court whether that decision is being appealed to the court. Counsel did concede that he did not make the argument below that found favour with the tribunal in Certas. Neither did he mention to this court the decision of the Executive Chair of the tribunal in A.F. v. North Blenheim Mutual Insurance Company, 2017 87546 (ON LAT), in which the Executive Chair came to the opposite conclusion from that reached in Certas. An appeal from that decision is scheduled to be heard in this court in April 2020.
[18] Apart altogether from the prematurity of this case, it is not appropriate to argue that a recent decision of the tribunal ought to be applied when the argument on which the recent decision turned was not made to the tribunal in this case. Rather, after the main hearing has concluded, if Allstate is unsuccessful, it can raise both the Certas and Blenheim cases in the reconsideration proceeding. In that way, if there is an appeal after the reconsideration decision, the court will have the benefit of the tribunal’s view of the applicable principles as applied to the facts of this case.
Outcome
[19] I do not see any basis to argue that this application arises in “exceptional circumstances” to justify hearing an otherwise admittedly premature application.
[20] The application is therefore dismissed.
[21] The parties agreed that in the event that application was dismissed, Allstate would pay costs to Ms. Billard of $3,721.50 and it is so ordered.
F.L. Myers J.
I agree _______________________________
Kiteley J.
I agree _______________________________
Pomerance J.
Release Date: October 30, 2019
CITATION: Allstate Insurance Company v. Billard, 2019 ONSC 6265
DIVISIONAL COURT FILE NO.: DC-19-31
DATE: 20191030
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
KITELEY, POMERANCE, and MYERS JJ
BETWEEN:
ALLSTATE INSURANCE COMPANY Applicant
-and-
GINA BILLARD Respondent
REASONS FOR JUDGMENT
F.L. MYERS J
Released: October 30, 2019
[^1]: As amended effective February 7, 2019.