Court File and Parties

CITATION: Millar v. The Cooperators General Insurance Company, 2021 ONSC 6643

DIVISIONAL COURT FILE NO.: 155/21

DATE: 2021-10-05

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: Luke Millar, Applicant/Respondent

AND:

The Cooperators General Insurance Company (Respondent/Appellant)

BEFORE: Varpio, Matheson, Leiper JJ.

COUNSEL: Piera A. Segreto, for the Applicant/Respondent Laura L. Emmett and Julianne Brimfield, for the Respondent/Appellant

HEARD at London (by videoconference): October 5, 2021

Endorsement

Leiper, J. (orally):

The Appeal

[1] The Cooperators General Insurance Company (“Cooperators”) seeks to appeal a decision in which the Licence Appeal Tribunal (“LAT”) determined what it described as a preliminary question, specifically whether the claimant, Luke Millar was a “dependant” and thus an insured under the policy in issue.

[2] The Cooperators also seeks to appeal the decision of the LAT denying the Cooperators’ request for reconsideration of the preliminary question.

[3] Mr. Millar argues that the Cooperators’ appeal is premature because the hearing on the merits has yet to be heard and is scheduled for March of 2022. In the alternative, he argues that the LAT made no error in law in deciding the preliminary question of whether he was a “dependant” and that it made no error in law in refusing to hear the Cooperators’ request for reconsideration of that issue.

[4] At the hearing of this appeal, the panel heard counsel first on the issue of whether the appeal is premature. We dismiss the appeal as premature.

[5] These are our reasons for the dismissal of the appeal.

Background Facts

[6] On January 10, 2019, Mr. Millar applied for Accident Benefits under a policy held by his mother in connection with his brother Eric’s death in a car accident. Cooperators paid certain medical benefits and income replacement benefits.

[7] In March of 2019, Mr. Millar applied to the LAT for a determination of entitlement to certain benefits. At a case conference held on November 1, 2019, the parties identified the preliminary question of whether Luke was an insured person and other substantive issues. The parties agreed that they would make submissions on the preliminary question.

[8] The hearing of the preliminary question was heard in writing. The LAT issued its reasons for decision on April 30, 2020. The LAT found that at the time of the accident, Mr. Millar was a “dependant” of his mother as defined by the Schedule and was entitled to coverage under her insurance policy.

[9] On May 20, 2020, Cooperators applied to the LAT for reconsideration of the preliminary question. Cooperators initiated this appeal prior to the LAT determination of the reconsideration appeal.

[10] On March 26, 2021, the LAT denied Cooperators’ request for reconsideration on the basis that the decision appealed from did not finally dispose of the application and did not satisfy the requirements of Rule 18.1 (Common Rules of Practice & Procedure).

Analysis

[11] Cooperators submits that the most just and efficient way of proceeding would be to hear the appeal now rather than awaiting a hearing on the merits. It argues that a hearing on the merits will be unnecessary if this appeal decides that Mr. Millar is a dependant and therefore an insured person.

[12] Cooperators relies on the decision of the Divisional Court in Porter v. Aviva Insurance Company of Canada, 2021 ONSC 3107. In Porter, the court heard an appeal from a preliminary decision on the question of whether there had been an “accident.” Cooperators argues that this is authority for the proposition that an appeal of a preliminary question such as whether there has been an “accident” is not premature.

[13] We disagree. In Porter the panel decided to hear the appeal from the preliminary question in the context of a case in which there were no other matters to be determined on the application for benefits. This is unlike the case at bar. There is a well-developed line of jurisprudence from this court that it will generally decline to hear appeals from preliminary decisions where other issues are yet to be decided by the tribunal: See Traders General Insurance Company v. Rumball, 2019 ONSC 1412; Allstate Insurance Company v. Billard, 2019 ONSC 6265; Taylor v. Aviva Canada Inc., 2018 ONSC 4472.

[14] The repeatedly stated policy reasons behind avoiding premature appeals in administrative proceedings include avoiding inefficiency, expense and allowing administrative processes to proceed to a conclusion on all issues. An appeal may not be necessary after those steps have been taken. Any appeal will have the benefit of a full procedural and evidentiary record. There will be fewer delays in arriving at a result, caused by pausing the proceedings for appeals or judicial reviews. Even where the parties may agree an appeal should be heard, as Favreau, J. noted in Rumball, “the Court is entitled to guard against the inefficiency, extra expense and waste of judicial resources resulting from fragmented administrative proceedings.”

Outcome

[15] We conclude that the appeal is premature. The appeal is dismissed.

[16] In light of the well-established line of authority described in paragraph 13 of our reasons, and in the exercise of our discretion, we are of the view that costs beyond the partial indemnity range is appropriate. We fix costs at $9,000 all inclusive.

Leiper J.

I agree Varpio J.

I agree Matheson J.

Date: October 5, 2021