Court File and Parties

CITATION: Kahissay v. Intact Insurance, 2022 ONSC 6357

DIVISIONAL COURT FILE NO.: 385/22

DATE: 2022-11-14

SUPERIOR COURT OF JUSTICE – ONTARIO DIVISIONAL COURT

RE: MEKDES KAHISSAY, Appellant AND: INTACT INSURANCE, Respondent

BEFORE: D.L. Corbett J.

COUNSEL: Richard Campbell, for the Appellant Maya Krishnaratne, for the Respondent

HEARD: In Chambers, In Writing

REASONS FOR DECISION

D.L. Corbett J.

[1] The appellant appeals the decision of Arbitrator Jarda of the License Appeal Tribunal directing the appellant to attend insurer-requested medical examinations in connection with the appellant’s claim to be catastrophically impaired within the meaning of the Statutory Accident Benefits Regulation, O. Reg. 34/10. The Arbitrator also stayed the LAT proceedings pending the appellant’s compliance with the order.

[2] By my direction, the Registrar issued a notice pursuant to Rule 2.1 that the court is considering dismissing the appeal on the following basis:

It appears that the appeal concerns an interlocutory order of the LAT. As has been found recently in this court, the Divisional Court has no jurisdiction to hear an appeal from an interlocutory order of the LAT: Penney v. The Co-operators General Insurance Company, 2022 ONSC 3874 (“Penney”).

[3] The appellant’s submissions in response to the R.2.1 notice are as follows:

(a) there are two “lines of authority” in the Divisional Court. One, reflected by the decision of Marrocco ACJSCO in Taylor v. Aviva Canada Inc., 2018 ONSC 4472 (“Taylor”), holds that an appeal from an interlocutory decision of the LAT is available in the Divisional Court, and the Divisional Court may intervene in respect to an interlocutory ruling of the LAT in “exceptional circumstances”. The other, reflected in the decision of Swinton J. in Penney, holds that there is no jurisdiction in the Divisional Court to hear an interlocutory appeal from the LAT.

(b) Taylor is correct and Penney is incorrect and, in any event, where there are two competing lines of authority in this court, the issue is not fit for decision by a single judge on a R.2.1 review and it should be placed before a panel of this court.

(c) in the alternative, this case fits within the “exceptional circumstances” category and the appellant should be granted leave to convert this appeal to an application for judicial review.

[4] As is reflected in the reasons of Swinton J. in Penney, this court has long held that it has no jurisdiction to hear an appeal from an interlocutory order of the LAT. There is jurisdiction to intervene in respect to such an interlocutory decision by way of judicial review, but this jurisdiction is exercised sparingly so as not to fragment and delay administrative proceedings.

[5] The “contrary line of authority” has relied upon the “prematurity” principle used in judicial review to restrict recourse to appeals of interlocutory decisions to exceptional cases: Taylor and Micanovic v. Air Canada Ltd., 2022 ONSC 1566, at paras. 30, 32 and 33.

[6] The court in Taylor did not explain the basis of its jurisdiction and did not reference, distinguish or overrule prior jurisdictional decisions to the contrary. The authority it did rely upon was in the context of judicial review, not an appeal. Thus, Taylor can be said to have been decided per incuriam on the issue of jurisdiction. Other decisions taking a similar approach (including my own single-judge decision in The Personal Insurance Co. Ltd. v. Jia, 2020 ONSC 6361) followed the logic of Taylor without addressing the prior contrary authority on the issue of jurisdiction.

[7] Penney stands as a recent statement by a panel of this court on this issue. It is binding on me as a single judge deciding a R.2.1 issue. Further, given the history of this issue in this court, Penney can be taken as the authoritative statement of the Divisional Court on this issue: Taylor and Jia were both wrongly decided on this point – though I note that both Taylor and Jia are correct in the result – both appeals were dismissed for prematurity, though both should have been dismissed for lack of jurisdiction. Where one “line of authority” is correct on a point and another “line of authority” is incorrect and decided (on the point) per incuriam, a panel of this court may resolve the point authoritatively. No purpose would be served by sending the issue to another panel of this court: Penney has settled the issue.

[8] The appellant asks, in the alternative, that her appeal be converted to an application for judicial review. This request is granted, without prejudice to any argument that may be made by the respondent that the application is premature. The appellant addressed the “exceptional circumstances” test for seeking judicial review of an interlocutory ruling in her submissions, but that issue was not raised in the R.2.1 notice. It is open to the court to issue a fresh R.2.1 notice after reviewing the Notice of Application. If the court does not take that step, it is open to the respondent to raise prematurity as a basis for a motion to quash or as a defence to the application.

[9] The Notice of Appeal is struck out and the appellant is granted leave to deliver a Notice of Application for judicial review by November 30, 2022, with the commencement date of the application being the date on which the appeal was commenced, but otherwise without prejudice to any defence that may be raised to the application, including a defence that the application should be dismissed as premature. There shall be no costs of these R.2.1 proceedings.

D.L. Corbett J.

Released: November 14, 2022