Superior Court of Justice – Ontario (Divisional Court)

CITATION: Awada v. Allstate, 2021 ONSC 8108

DIVISIONAL COURT FILE NO.: 628/21

DATE: 20211207

RE: TARICK AWADA v. ALLSTATE INSURANCE COMPANY

BEFORE: D.L. Corbett J.

HEARD: In Chambers, In Writing

ENDORSEMENT

[1] Allstate appeals a production order of the License Appeal Tribunal made in the course of ongoing proceedings brought by the respondent at the Tribunal.

[2] During initial triage of the appeal in this court, the court directed that the following inquiry be made of the appellant:

Justice Corbett directs me to advise you as follows:

This court will generally refuse to hear an appeal of an interlocutory ruling of the LAT on the basis of prematurity. While exceptions can be made to this principle, it does not appear that there are any bases for making an exception in this case. The appellant is asked to explain why this appeal should be permitted to proceed in light of the principle of prematurity.

[3] The court was not satisfied with the appellant’s initial response to this inquiry and directed a notice be issued pursuant to R.2.1.01. The parties then exchanged written submissions pursuant to R.2.1.01.

[4] For the following reasons the appeal is dismissed as premature pursuant to R.2.1.01.

Rule 2.1.01

[5] An appeal will be dismissed as frivolous, vexatious and/or an abuse of process pursuant to R.2.1.01 only in the “clearest of cases”.

[6] An appeal is considered frivolous, vexatious and/or an abuse of process if (among other things) it cannot possibly succeed or if it cannot possibly be of any benefit to the appellant.

Prematurity

[7] “[A]bsent exceptional circumstances, courts should not interfere with ongoing administrative processes until after they are completed, or until effective remedies are exhausted” Canada (Border Services Agency) v. C.B. Powell Limited, 2010 FCA 61, per Stratas J.A.

[8] The classic statement of the courts’ reluctance to intervene in the course of administrative proceedings is found in Ontario College of Art v. Ontario (Human Rights Commission) (1993), 1993 3430 (ON SCDC), 11 OR (3d) 798 at 800:

For some time now, the Divisional Court has … taken the position that it should not fragment proceedings before administrative tribunals. Fragmentation causes both delay and distracting interruptions in administrative proceedings. It is preferable, therefore, to allow such matters to run their full course before the tribunal and then consider all legal issues arising from the proceedings at their conclusion….

[9] The principle was stated by this court in 1993, and it had been followed “[f]or some time now” then, nearly thirty years ago. It is followed just as scrupulously today and, with active case management being instituted by more and more administrative tribunals, the practical importance of the principle has in no way diminished.

[10] The appellant argues that the order under appeal fits within the “exceptional circumstances” category because it is “fatally flawed” and is procedurally unfair. In the result, a full hearing could unfold before the Tribunal that could be avoided if the appeal is successful: Higashi v. Western Assurance Co., [2020] OJ No. 5395; Certas Direct Insurance Co, v. Gonsalves, 2011 ONSC 3986.

[11] I do not accept these submissions. This is an ordinary interlocutory production order. The appellant notes that scheduling orders, as currently structured, could lead to a situation where the appellant is unable to respond to issues raised by the respondent arising from the documents ordered disclosed. I do not agree that this is an “exceptional circumstance”. If such a situation should arise, the current orders provide that the appellant can seek leave from the Hearing Adjudicator to provide additional materials. It remains the Hearing Adjudicator’s task to ensure fairness for both sides as the case moves forward, and an appeal will be available to this court if, at the end of the process, a party argues it was not treated fairly. This case is not like Gonsalves, where the impugned order would necessarily lead to unfairness at the hearing. In the case at bar, the argument is premised on the possibility of procedural unfairness, not the inevitability of substantive unfairness found in Gonsalves. See also Ontario (Liquor Control Board) v. Lifford Wine Agencies Ltd. (2005), 2005 25179 (ON CA), 76 OR (3d) 401 (CA); Aon Inc. v. Towerhill Developments Inc., [2010] O.J. No. 2698 (Div. Ct.).

[12] Finally, the appellant argues that the appeal could result in the underlying claim being dismissed without a full hearing. This, it argues, would contribute to efficiency. That argument does not establish “exceptional circumstances” – it is available every time the Tribunal makes a decision that could lead to a full hearing rather than summary disposition of the claim. The impact of the ruling is an aspect of the prematurity analysis (there is little point interrupting proceedings below to entertain an interlocutory appeal that will have no impact on the course of the proceedings below), but is not, by itself, sufficient to establish “exceptional circumstances.”

[13] I note that this appeal, if it should proceed, will either be moot by the time it is decided or will lead to unacceptable delay in the proceedings below. If the impugned order is not stayed pending disposition of the appeal, then the appellant will be required to comply with the impugned order pending before the appeal is decided. The administrative process below will continue and may well reach a final disposition before the appeal is decided in this court. No purpose would be served by the appeal in this circumstance. If the impugned order is stayed pending disposition of the appeal, this will have the inevitable effect of delaying proceedings below. This delay would be substantial and would be an “interference” with the “administrative process” below within the meaning of the principle stated by Stratas J.A., quoted above: the prematurity principle would be defeated if premature appeals of interlocutory orders are permitted to proceed in this court at the will of the appellant, even where there are no “exceptional circumstances”, only to have the appeal panel dismiss the appeals many months later on the basis of prematurity, but still visiting substantial delay on the administrative process.

[14] Finally, I note that the prematurity issue can be addressed as (i) a defence to the proceeding before a panel; (ii) on a motion to quash the proceeding, before a single Divisional Court judge whose decision is reviewable as of right before a panel of three judges of this court; and (iii) pursuant to R.2.1.01, where the decision is final, subject only to an appeal to the Court of Appeal with leave from that court. Where it is arguable whether there are “exceptional circumstances” within the meaning of the jurisprudence, recourse to R.2.1.01 is not appropriate. It is then for the responding party to decide whether to move to quash, and if it does so, it is then for the motion judge to determine whether to dismiss for prematurity or to dismiss the motion and leave the prematurity issue for the panel.

[15] The appeal is premature. There are no “exceptional circumstances”. The appeal is dismissed pursuant to R.2.1.01.

[16] The respondent is entitled to costs of the R.2.1.01 process, which, in view of the written submissions exchanged between the parties, I fix at $2,500, inclusive, payable by the appellant to the respondent within thirty days.

“D.L. Corbett J.”

December 7, 2021