Court File and Parties
CITATION: Pafco Insurance Company v. Sahadeo, 2022 ONSC 328
DIVISIONAL COURT FILE NO.: 008/22
DATE: 2022-01-13
SUPERIOR COURT OF JUSTICE – ONTARIO
DIVISIONAL COURT
RE: PAFCO INSURANCE COMPANY v. SAHADEO
BEFORE: D.L. Corbett J.
COUNSEL: Jonathan Schrieder, for the Appellant / Applicant Pafco
HEARD: In Chambers, In Writing
Endorsement
[1] By decision dated December 15, 2021, Vice Chair Hunter of the LAT ruled that a surveillance video taken of Mr Sahadeo was inadmissible in the ongoing LAT proceedings. Those proceedings are now scheduled for a hearing starting January 17, 2021.
[2] The appellant, Pafco, has commenced both an appeal and an application for judicial review of the evidentiary ruling of the Vice Chair and has asked for an order staying the proceedings below until the appeal is decided.
[3] In these brief reasons I explain why I am dismissing the appeal and the application for judicial review as premature and an abuse of process. The proceedings before the LAT have not been stayed and should proceed as scheduled. If, after a final decision is rendered in the proceedings below, Pafco seeks to appeal or review the result, it will be open to Pafco to raise the impugned evidentiary ruling as one of its bases of appeal or review.
[4] The impugned decision was released on December 15, 2021.
[5] Pafco initiated its appeal by email to Divisional Court on January 5, 2022.
[6] On January 6, 2022, the Registrar advised the parties as follows:
Justice Corbett directs me to advise you as follows:
The impugned order and the proceedings below are not stayed unless and until the court orders otherwise.
The appellant is asked to explain why this appeal of an interlocutory mid-hearing ruling is not premature or alternatively, why there are "special circumstances" warranting this court hearing this appeal even though it is premature: see Awada v. Allstate, 2021 ONSC 8108, Isaac v. Law Society of Ontario, 2021 ONSC 8265.
If the appellant seeks a stay prior to resumption of the hearing before the LAT, the appellant should serve and provide to the court by email motion materials seeking a stay, in which the appellant should (among other things) explain why this motion was not brought much more promptly given that the LAT hearing is scheduled to resume on January 17, 2022.
The court wishes to be clear that an ongoing proceeding before the LAT may not be interrupted simply by filing a Notice of Appeal of an interlocutory ruling. It is a rare case when this court will entertain an appeal on an interlocutory ruling such as the one impugned in this case, and an even rarer case where the court would entertain the appeal if doing so would require interruption in the orderly proceedings below.
A copy of this direction shall be sent to counsel for LAT so that the Tribunal hears directly from this court that it should not adjourn or interrupt its proceedings solely on the basis of the Notice of Appeal.
[7] The appellant provided a response to the court’s concerns on January 10, 2022. To summarize, the appellant argued that the hearing has not yet started, and so the impugned decision is not a hid-hearing ruling. Thus, the appellant argued, the principle of prematurity does not apply. Alternatively, the appellant argues that the Vice Chair erred in his application of the deemed undertaking principle, erred in relying on a technical rule to exclude evidence on the motion that would have been dispositive of the motion in favour of Pafco, and unfairly failed to permit Pafco to rectify a minor technical problem with its evidence resulting in an “unbalanced advantage the Respondent will have at the hearing”. In sum, Pafco argue that the ruling was wrong in law and unfair and that it may have a material prejudicial effect at the hearing. All of which is to say that the appellant argues that there are good grounds for its appeal.
[8] The Registrar advised the parties as follows, once the court had reviewed Pafco’s response to the court’s initial concerns:
Justice Corbett directs me to advise you as follows:
The Registrar is directed to give the appellant notice that the court is considering dismissing the appeal as frivolous, vexatious and an abuse of process on the basis that (a) it is premature, (b) there are no special circumstances that should lead the court to hear an appeal from an interlocutory ruling, (c) although the appellant says it will move for a stay, it has not yet done so and the scheduled hearing is now less than a week away, and (d) the appellant will be able to raise the issue of which it now complains on an appeal from the final disposition of the LAT.
The appellant need not repeat the submissions made in response to the court's initial expression of concern, but may make additional submissions respecting the R.2.1.01 notice within fifteen days.
As the court advised previously, the impugned order is not currently stayed, and the LAT should not adjourn its hearing because of the proceedings underway in this court.
[9] On January 11, 2022, Pafco served motion materials seeking an urgent stay of the Vice Chair’s ruling and the proceedings below. The following day the court issued the following direction:
Justice Corbett directs me to advise you as follows:
The urgent stay motion will not be scheduled until this court has disposed of the R.2.1.01 issue. The court will give that issue urgent attention once it receives the appellant's response to the R.2.1.01 notice.
In the meantime, the court declines to issue an interim stay as it appears to the court that the appeal is premature and that it would be an abuse of process to interrupt the proceedings below in all of the circumstances. If the appeal survives the R.2.1.01 process, the court will schedule the motion for an interlocutory stay before a different judge.
[10] On January 12, 2022, Pafco served submissions respecting the R.2.1.01 notice. On January 13, 2022, it served an application for judicial review of the decision of Vice Chair Hunter.
[11] The appeal and the application for judicial review are dismissed pursuant to R.2.1.01 as frivolous, vexatious and an abuse of process. Both proceedings are premature. Both would have the effect of derailing the proceedings below or, if proceedings below are not stayed, would be rendered moot by the time they can be heard in this court. Both raise issues that may be raised on an appeal or review from the final decision of LAT. Neither fall within the category of “exceptional circumstances” justifying intervention by this court in respect to an interlocutory ruling of the LAT.
[12] The appellant has misconceived the principle of prematurity and the limited “exceptional circumstances” that could lead this court to intervene in respect to an interlocutory evidentiary ruling made in the course of administrative proceedings. Administrative proceedings, like court proceedings, are not supposed to be reiterative processes. It is corrosive of a timely and cost-effective administrative process to permit appeals or reviews of interlocutory rulings. This case illustrates the point. If this appeal is permitted to proceed, the underlying proceeding will be delayed a long time – many months at least, and likely more than a year. And that presumes that the parties are content with the appeal disposition made by this court. The very same arguments would be available to the losing party in this court in proceedings at the Court of Appeal – which could entail a further delay in the underlying hearing of many months or more. The Supreme Court of Canada is not a court of error, and the prospect of leave to appeal being granted from a disposition of this evidentiary issue by the Court of Appeal are remote – but they are not nil. That could entail further substantial delay – and the underlying hearing would still not have taken place.
[13] The analysis does not stop with an assessment of the potential affect on the administrative proceedings if this appeal is allowed to proceed and the proceedings below are stayed in the meantime. Administrative tribunals make evidentiary rulings in the ordinary course of their work. The impact of those rulings is often potentially material. If this case does not offend the principle of prematurity, then appeals would be permitted in the ordinary course from interlocutory rulings – all a party would have to establish to interrupt the proceedings below is that the effect of the impugned ruling could matter to it in the final result, and that there is an arguable basis for the appeal. Permitting interlocutory appeals in this manner could render the underlying proceedings interminable.
[14] The appellant’s submissions focus on the merits of its appeal. They do not address the jurisprudence as to what constitutes “exceptional circumstances” to overcome the prematurity principle. Having an arguable, even a strong, appeal is not sufficient to establish exceptional circumstances. There is nothing about the circumstances of this case to lead this court to conclude that the issues now raised by the appellant cannot be addressed appropriately in an appeal from LAT’s final disposition of the case. There is nothing about the circumstances to suggest that some collateral injustice will result from the operation of the impugned order. There are no exceptional circumstances here.
[15] R.2.1.01 should be invoked to dismiss a proceeding only in the clearest of cases. This is such a case: it is not a close call. Pafco has received an evidentiary ruling with which it disagrees. It will have to live with that ruling for the purpose of the proceedings below, and it may raise that ruling as a ground of appeal or review, if it is dissatisfied with the final result below.
[16] In respect to the application for judicial review: the prematurity principle applies equally to it. There is no point in engaging in a further round of R.2.1.01 submissions in respect to it, and the hearing below should be well underway by the time even that could take place.
[17] The appeal and the application for judicial review of the ruling of Vice Chair Hunter are both dismissed pursuant to R.2.1.01 without costs.
“D.L. Corbett J.”
January 13, 2022