Court File and Parties
CITATION: Penney v. The Co-operators General Insurance Company, 2022 ONSC 3874
DIVISIONAL COURT FILE NO.: DC-21-440 DATE: 20220706
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
Swinton, Varpio and Trimble JJ.
BETWEEN:
SARAH PENNEY
Appellant
– and –
THE CO-OPERATORS GENERAL INSURANCE COMPANY and THE LICENCE APPEAL TRIBUNAL
Respondents
Counsel: Ashu Ismail for the Appellant Daniel Himelfarb for The Co-operators General Insurance Company, Respondent Valerie Crystal for The Licence Appeal Tribunal, Respondent
HEARD at Toronto (by videoconference): June 28, 2022
Reasons for Decision
Swinton J.
Overview
[1] The appellant Sarah Penney appeals the decision of Vice Chair Terry Hunter of the Licence Appeal Tribunal (the “Tribunal” or “LAT”) dated May 6, 2021, denying her motion to remove the lawyer of the respondent, The Co-operators General Insurance Company, because of a conflict of interest.
[2] At the end of the oral argument, the Court announced that the appeal was dismissed for want of jurisdiction, with reasons to follow. These are the reasons.
Factual Background
[3] The motion was brought in proceedings before the Tribunal respecting the appellant’s eligibility for benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010, O. Reg. 34/10 (the “Schedule”). She alleged that the respondent’s lawyer was in a conflict of interest because he was representing the respondent both in her accident benefits application before the Tribunal and in a priorities dispute with another insurer before an arbitrator. The lawyer had produced medical and employment records to the other insurer and the arbitrator in the priorities dispute, relying on a consent to share information with other insurers in her OCF-1forms and an order of the arbitrator.
[4] The Tribunal ruled that there was no conflict of interest on the facts of the case and dismissed the appellant’s motion. She then appealed to the Divisional Court.
The jurisdiction to hear an appeal from the Tribunal
[5] Section 11 of the Licence Appeal Tribunal Act, 1999, S.O. 1999, c. 12, Sched. G (“LAT Act”) deals with appeals. Subsection 11(1) sets out a party’s right to appeal to the Divisional Court from a “decision or order” under a number of Acts, including the Insurance Act, in the following terms:
Subject to subsections (2) to (6), a party to a proceeding before the Tribunal relating to a matter under any of the following Acts may appeal from its decision or order to the Divisional Court in accordance with the rules of court:
Insurance Act
However, pursuant to s. 11(6), “[a]n appeal from a decision of the Tribunal relating to a matter under the Insurance Act may be made on a question of law only”.
The issue of jurisdiction
[6] The decision under appeal is interlocutory, as it does not finally dispose of the appellant’s accident benefits application, nor does it dispose of any substantive issue or claim in that proceeding. The Co-operators and the Tribunal took the position that there is no right to appeal an interlocutory decision, relying on a large number of cases that have held that the language in s. 11 of the LAT Act and similar language in other Acts permit an appeal only from a final decision or order.
[7] The appellant relied on the decision of the Divisional Court in The Personal Insurance Company v. Jia, 2020 ONSC 6361, where the Court dealt with jurisdiction to hear an appeal of an interlocutory decision as follows (at para. 15):
This court will not ordinarily hear an appeal from interlocutory decisions of LAT, unless the consequences of the decision cannot be rectified on appeal from a final decision. We would exercise our discretion to hear an appeal from the conflict decision, because it is evasive of appeal and it is potentially a matter of general practice important in proceedings before LAT.
No legal authority is cited in support of this statement. However, the appellant argued that this panel is bound by the decision, and it should exercise its discretion to hear the appeal, as the panel did in Jia.
Analysis
[8] It is important to emphasize that the Court, in this case, is dealing with an appeal, not a judicial review. The authority to hear an appeal is found in the governing legislation. Determining the scope of the right to appeal requires the Court to engage in an exercise of statutory interpretation in accordance with the modern principle of statutory interpretation, considering the text of the statute, the context, and the purpose and policy behind the statute.
[9] The appellant argues that the wording of s. 11 permits an appeal from an interlocutory decision, because the Legislature has not specified that the appeal is only from a final decision. She relies on an 1879 decision of the Supreme Court of Canada in which that Court interpreted the provisions then governing appeals to the Supreme Court (Danjou v. Marquis, 1879 25). This decision is of no assistance, as it deals with the particular language and structure of another Act. Needless to say, it did not apply the modern approach to statutory interpretation, nor does it address any principles of administrative law.
[10] More recent jurisprudence in Ontario has generally interpreted legislation conferring a right to appeal a decision of an administrative tribunal as conferring a right to appeal only a final decision, absent clear language indicating that there is a right to appeal an interlocutory decision. The leading case remains Roosma v. Ford Motor Co. of Canada Ltd., 1988 5633 (Div. Ct.). At the time that case was decided, the Ontario Human Rights Code provided a right of appeal from a decision of a board of inquiry. The language was similar to that found in s. 11(1) of the LAT Act: “Any party to a proceeding before a board of inquiry may appeal from a decision or order of the board to the Divisional Court in accordance with the rules of court.”
[11] The Court in Roosma considered the text of the appeal provision, its context in the Code, and the policy implications of interpreting the provision to allow appeals of interlocutory orders. Then, as now, an appeal of a decision of an administrative tribunal results in an automatic stay of the proceeding, unless legislation provides otherwise or the appellate body lifts the stay (see s. 25(1) of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22). The Court in Roosma was concerned about the consequent delay in the administrative proceedings if interlocutory decisions could be appealed. Such appeals would undermine the policy objective of expeditious resolution of disputes through administrative tribunals. At para. 30, Reid J. concluded:
In my opinion, the reasonable inference based on general premises, on explicit provisions of the Code setting time-limits, and investing the term “orders” with a necessity of finality, is that the legislature did not intend the proceedings of boards of inquiry to be unduly impeded, which would be the inevitable result of the interpretation proposed by the union. Thus, the only reasonable interpretation of s. 41(1) is, in my opinion, that only final decisions and orders may be appealed.
The Court observed, however, that judicial review might be available to review an interlocutory decision in an appropriate case.
[12] The appellant suggests that Roosma is an old case and deals with a different tribunal and context from the LAT when it is determining accident benefits disputes. However, the weight of the case law in Ontario has been to adopt Roosma in a variety of regulatory settings. For example, in 2008, the Divisional Court followed Roosma in Stockfish v. Ontario (Motor Vehicle Dealers Act, Registrar), 2008 25725. There the Court was dealing with an appeal of an interlocutory decision of the Licence Appeal Tribunal pursuant to s. 11 of the LAT Act. The Court followed Roosma because of the similarity in the appeal provisions of the two statutes, as well as s. 10 of the LAT Act that suggested an appeal was from a final decision.
[13] There have been numerous cases in Ontario which have reached a similar result with respect to the appeal provisions in other statutes governing a wide range of administrative tribunals, including the Landlord and Tenant Board, the Criminal Injuries Compensation Board, the Social Benefits Tribunal and professional disciplinary bodies. The Divisional Court summarized that jurisprudence in a recent case dealing with appeals from the Landlord and Tenant Board, Delic v. Enrietti-Zoppo, 2022 ONSC 1627 at para. 11, citing the case law in a footnote:
Jurisprudence in this court with respect to similar provisions for statutory appeals from other tribunals has consistently held that in the absence of an explicit right of appeal from an interlocutory decision, only a final order of a tribunal can be appealed. [^1]
[^1]: Roosma v. Ford Motor Co. of Canada Ltd. (1988), 1988 5633 (ON SCDC), 66 OR (2d) 18 (Div. Ct.); Sazant v. R.M. and C.I.C.B., 2010 ONSC 4273 (Div. Ct.), Stockfish v. Ontario (Motor Vehicle Dealers Act, Registrar), [2008] O.J. No. 2052 (Div. Ct.), Canadian Union of Public Employees (CUPE) v. Ontario Hospital Assn., 1991 CarswellOnt 914 (Div. Ct.), McCann v. Ontario (Police Services Act Board of Inquiry), 1994 CarswellOnt 894 (Div. Ct.), Butterworth v. College of Veterinarians of Ontario, [2001] O.J. No. 5265 (Div. Ct.), Rudinskas v. College of Physicians and Surgeons of Ontario, 2011 ONSC 4819 (Div. Ct.), Ibrahim v. Ontario College of Pharmacists, 2010 ONSC 5293, rev’d on other grounds 2011 ONSC 99 at para. 4 (Div. Ct.), Blew v. Ontario College of Teachers, 2016 ONSC 8053 at paras. 6-11 (Div. Ct.), Free v. County of Norfolk and Dietrich Engineering Limited, 2017 ONSC 909 at para. 3 (Div. Ct.), Coughlin v. Director, Ontario Disability Support Program, 2021 ONSC 1236 (Div. Ct.).
[14] I note that s. 11(1) refers to an appeal of “its” decision to the LAT. This suggests that an appeal may be brought with respect to a final decision. However, it is noteworthy that in Sazant, the Divisional Court held that the wording “any decision” in appeals from the Criminal Injuries Compensation Board should be interpreted as meaning a final decision (Sazant v. R.M. and C.I.C.B., 2010 ONSC 4273 at para. 37).
[15] That brings me to some recent cases in the Divisional Court where the Court has stated that while there is normally no right to appeal an interlocutory decision of the LAT, the Court has discretion to hear an interlocutory appeal. None of these cases refers to Stockfish, or to the limits of the Court’s jurisdiction pursuant to s. 11(1) because of the express language of the provision. With respect to my colleagues who sat on these cases, it appears to me that they have imported principles applying in judicial review applications to the interpretation of the appeal provision in the LAT Act. I would not follow them, as I believe they erred in failing to give effect to the wording of s. 11(1) and the longstanding jurisprudence, and they have not justified their approach in departing from the language and jurisprudence.
[16] Before I review these cases, it is important to draw a distinction between appeals and judicial reviews. As I said earlier, an appeal is a creature of statute, and the appellate body’s jurisdiction is limited by the legislation. Judicial review, in contrast, is a common law remedy. Relief is discretionary, and the courts have developed a doctrine of prematurity whereby they refuse to review interlocutory decisions of administrative tribunals unless there are exceptional circumstances (see, for example, Sazant at paras. 40-42).
[17] I now turn to the recent cases involving LAT appeals. In Security National Insurance Company v. Kumar, 2018 ONSC 3556, this Court heard an appeal of an interlocutory order where both parties agreed that the appeal was not premature, because the preliminary issue was essentially the only issue in dispute between the parties. In finding that the “court does, at least on occasion, hear appeals from tribunals on specific preliminary issues that do not constitute final determination on the merits”, the Court relied on the following cases (at para. 8): Certas Direct Insurance Company v. Gonsalves, 2011 ONSC 3986; Security National Insurance Company v. Hodges, 2014 ONSC 3627 and Guarantee Company of North America v. Dong Do, 2015 ONSC 1891.
[18] It is important to note that these three cases were applications for judicial review from decisions of the Financial Services Commission of Ontario (“FSCO”), not appeals to the Divisional Court. Prior to April 1, 2016, automobile accident benefit disputes were adjudicated at FSCO, where there was no statutory right of appeal, only judicial review. These judicial reviews of FSCO decisions do not address or assist in determining whether an interlocutory decision may be appealed under s. 11(1) of the LAT Act. Only Certas discusses the doctrine of prematurity, doing so in the context of judicial review of an interlocutory decision.
[19] The next case to consider is Taylor v. Aviva Insurance Canada Inc., 2018 ONSC 4472. In that case, the Divisional Court considered whether an appeal and a request for reconsideration before the LAT could proceed at the same time. The Court was not asked to determine whether it had the jurisdiction to hear an interlocutory appeal pursuant to s. 11(1). However, the Court stated at para. 19:
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 4851 (ON SC), 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] It is important to note that the Court refers to Deutsche Bank as an example of a challenge to an interlocutory decision where prematurity was an issue. Deutsche Bank was an application for judicial review, not an appeal, and it does not address the authority of the Court to hear an interlocutory appeal.
[21] That brings me to Traders General Insurance Company v. Rumball, 2019 ONSC 1412, where the Court held that an appeal of an interlocutory LAT decision was premature. However, the Court relied on Taylor, above, for the following proposition: “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” (at para. 19). Again, the cases relied on in Rumball do not address whether the language of s. 11(1) permits an appeal of an interlocutory decision.
[22] I return now to the 2020 decision in Jia, where the Divisional Court again stated that the Court has a discretion to hear an appeal of an interlocutory decision. As I stated earlier, no authority was cited for this proposition.
[23] In Blew v. Ontario College of Teachers, 2016 ONSC 8053, Dambrot J. refused to follow an earlier Divisional Court decision that dealt with an interlocutory appeal of a decision of a discipline committee of the College. He noted that the Court had not considered its jurisdiction and its decision was inconsistent with other cases and “clearly per incuriam” (at para. 11). For similar reasons, I decline to follow Jia. The panel in that case did not engage with the clear language of s. 11 of the Act and the longstanding jurisprudence holding that this Court does not have jurisdiction to hear an appeal of an interlocutory decision or order absent clear statutory language. In my view, Roosma, Stockfish and similar cases in other regulatory regimes remain good law. Section 11 does not confer a discretion on the Court to hear interlocutory appeals.
[24] The appellant also refers to Micanovic v. Intact Insurance, 2022 ONSC 1566, where the Divisional Court again held that it had the discretion to hear an appeal of an interlocutory decision in exceptional circumstances. The Court relied on Cura v. Aviva Insurance Canada, 2021 ONSC 2290 at para. 30 for this proposition (see para. 30 of Micanovic). However, once again, Cura was an application for judicial review, not an appeal, and the case said nothing about the interpretation of s. 11 of the LAT Act. Micanovic also referred to Taylor (at para. 33), which, as I have noted, did not directly address the interpretation of s. 11.
[25] The result reached in the present appeal, which focuses on the words used by the Legislature, makes good sense in the administrative law context, where the objective is to provide efficient and timely adjudication through administrative tribunals. As Robert W. Macaulay, James L.H. Sprague, Lorne Sossin, have noted in Practice and Procedure Before Administrative Tribunals, (at § 37:12 (accessed on ProView)):
A right of appeal exists only to the extent that a legislature creates it. Unlike the right of judicial review there is no constitutional right to appeal nor an authority in a court to create such a process. Approaching a statutory right of appeal as if the Court had the discretion to hear the appeal or not depending on its view of the prematurity of the review appears to read such rights as implicitly being only a conditional [sic] and requiring the leave of the court. When legislatures wish to make a right of appeal conditional the standard approach is to say so explicitly. Otherwise, a court does not have the discretion to refuse to entertain an appeal depending on its judgment of the value of proceeding with it at that time. Treating a simple right of appeal from “decisions” as precluding appeals from interim or interlocutory decisions except in exceptional cases appears, problematically, to treat a statutory right of appeal as being discretionary and resting in the judgment of the court to hear.
[26] Given the language of s. 11(1) and (6) of the LAT Act, read in the context of the entire statute and the objective of preventing fragmentation of and delay in administrative proceedings, I conclude that this Court has no jurisdiction to hear an appeal from an interlocutory decision of the LAT. In my view, this conclusion is consistent with the instruction from the Supreme Court of Canada in Vavilov v. Canada (Minister of Citizenship and Immigration), 2019 SCC 65 that the courts should respect the Legislature’s decisions with respect to institutional design (at paras. 24, 36). Here, the Legislature chose not to confer a right to appeal interlocutory decisions of the LAT to the Divisional Court.
[27] I note, before closing, that a party may have the option of seeking judicial review of an interlocutory decision in an appropriate case, as the judges in Blew and Sazant, above, discussed. The applicant will likely have to meet an argument of prematurity and show exceptional circumstances if it wishes to be heard. However, in this case, there was no request to turn this appeal into an application for judicial review.
Conclusion
[28] Accordingly, the appeal is dismissed for want of jurisdiction.
[29] The Tribunal does not seek costs.
[30] The parties agreed that $6,900 all inclusive would be an appropriate quantum of costs as between the appellant and The Co-operators. However, the appellant submitted that there should be no costs awarded against her, or the quantum should be reduced because she reasonably relied on Jia.
[31] The appellant did not have an automatic right to appeal this interlocutory decision according to Jia, and she would have had to demonstrate exceptional circumstances in order to have her appeal heard. In my view, this was not a case where there are exceptional circumstances. The Tribunal found that the factual basis to show a conflict of interest had not been made out. This is not a situation where there is a fatally flawed proceeding and where the alleged deficiencies cannot be cured on an ultimate appeal. Accordingly, given that the appeal fails, I would order the appellant to pay costs to The Co-operators in the agreed amount of $6,900.00.
Swinton J.
I agree
Varpio J.
I agree
Trimble J.
Date of Release: July 6, 2022
CITATION: Penney v. The Co-operators General Insurance Company, 2022 ONSC 3874
DIVISIONAL COURT FILE NO.: DC-21-440 DATE: 20220706
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
Swinton, Varpio and Trimble JJ.
BETWEEN:
SARAH PENNEY
Appellant
– and –
THE CO-OPERATORS GENERAL INSURANCE COMPANY and THE LICENCE APPEAL TRIBUNAL
Respondents
REASONS FOR JUDGMENT
Swinton J.
Date of Release: July 6, 2022