CITATION: Hutchinson v. Aviva General Insurance Company, 2022 ONSC 7136

DIVISIONAL COURT FILE NO.: 273/22

DATE: 20221216

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: CAMILLE HUTCHINSON, Appellant

AND:

AVIVA GENERAL INSURANCE COMPANY, Respondent

BEFORE: Nishikawa J.

COUNSEL: Ryan Turner, for the Appellant

Marcin J. Panasewicz, for the Respondent

Douglas Lee, for the Licence Appeal Tribunal

HEARD at Toronto: December 16, 2022 (in writing)

ENDORSEMENT

Overview

[1] The proposed intervener, the Licence Appeal Tribunal (“LAT”), brings a motion for leave to intervene in the appeal of its decision brought by the Appellant, Camille Hutchinson. In the decision, the LAT dismissed the Appellant’s motion on the first day of the hearing to change the format of the hearing and her motion to adjourn. The LAT denied the Appellant’s claim to certain accident benefits under the Statutory Accident Benefits Schedule, O. Reg. 34/10 under the Insurance Act, R.S.O. 1990, c. I.8.

[2] On appeal, the Appellant raises issues of procedural fairness and reasonable apprehension of bias, among other issues.

[3] The Appellant does not consent to the LAT’s motion for leave to intervene but did not submit any materials in opposition to the motion. The Respondent, Aviva General Insurance Company, consents to the motion.

[4] For the reasons given below, the motion is granted, on the terms as detailed in this endorsement.

Analysis

The Test for Leave to Intervene

[5] Rule 13.02 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, which provides for intervention as a friend of the court, states as follows:

Any person may, with leave of a judge or at the invitation of the presiding judge or master, and without becoming a party to the proceeding, intervene as a friend of the court for the purpose of rendering assistance to the court by way of argument.

[6] The Court of Appeal has established that when deciding whether to grant leave to intervene as a friend of the court, the following considerations are relevant:

(a) The nature of the case;

(b) The issues involved;

(c) The likelihood that the proposed intervener will make a useful and distinct contribution not otherwise offered by the parties; and

(d) Whether the intervention will cause injustice to the parties or undue delay.

Peel (Regional Municipality) v. Greater Atlantic & Pacific Co. of Canada Ltd. (1990), 1990 6886 (ON CA), 74 O.R. (2d) 164 (C.A.).

[7] When considering whether the proposed intervener will make a useful contribution, the court focuses on: (i) the proposed intervener and its expertise or interest in the issues at stake and (ii) the specific contribution the intervener proposes to make. Elementary Teachers’ Federation et al v. Her Majesty, 2018 ONSC 6318 (Div. Ct.)

[8] In deciding whether to grant a tribunal leave to intervene, the court must balance the need for fully informed adjudication against the importance of maintaining tribunal impartiality: Ontario (Energy Board) v. Ontario Power Generation Inc., 2015 SCC 44, at para. 57. In that case, the Supreme Court of Canada found, at para. 563, that “because of their expertise and familiarity with the relevant administrative scheme, tribunals may in many cases be well positioned to help the reviewing court reach a just outcome.” The Court identified the following factors as relevant to informing the court’s discretion in defining the role of a tribunal on appeal:

(a) If an appeal or review were to be otherwise unopposed, a reviewing court may benefit by exercising its discretion to grant tribunal standing;

(b) If there are other parties available to oppose an appeal or review, and those parties have the necessary knowledge and expertise to fully make and respond to arguments on appeal or review, tribunal standing may be less important in ensuring just outcomes;

(c) Whether the tribunal adjudicates individual conflicts between two adversarial parties, or whether it instead serves a policy-making, regulatory or investigative role, or acts on behalf of the public interest, bears on the degree to which impartiality concerns are raised. Such concerns may weigh more heavily where the tribunal served an adjudicatory function in the proceeding that is the subject of the appeal, while a proceeding in which the tribunal adopts a more regulatory role may not raise such concerns.

The LAT’s Proposed Submissions

[9] If granted leave to intervene, the LAT does not propose to take a position on the merits of its decision or the outcome of the appeal. The LAT proposes to make submissions on the following issues:

(d) The statutory and procedural context of the proceeding at the LAT;

(e) The applicable standard of review;

(f) Procedural fairness and the tribunal’s ability to control its own process; and

(g) Reasonable apprehension of bias.

Application of the Relevant Factors

[10] In my view, the LAT would be able to make a useful and distinct contribution on the issues of the statutory and procedural context of the proceeding and on the procedural fairness issue. Although both parties are represented by counsel, as the tribunal with exclusive jurisdiction to resolve disputes regarding an insured person’s entitlement to statutory accident benefits, the LAT has a particular perspective regarding its processes, including how hearings should be conducted.

[11] I am not satisfied, however, that the LAT would be able to make a useful or distinct contribution on the standard of review or on reasonable apprehension of bias. Those are areas in which the court is well-versed and would not need assistance from the LAT. Moreover, submissions from the LAT on the issue of bias would not be appropriate because it raises the risk of the LAT venturing into the impermissible area of defending its own decision: Birani v. Tarion, 2017 ONSC 2503, at paras. 17-18.

[12] The LAT has delivered a draft factum and given notice to the parties of its proposed submissions. The LAT’s intervention would not unduly delay the proceeding, which is scheduled to be heard on February 9, 2023.

Conclusion

[13] Accordingly, I find that the LAT has met the test for leave to intervene as a friend of the court. The motion for leave to intervene is granted.

[14] The following conditions are imposed on the LAT’s intervention, subject to the discretion of the panel hearing the application for judicial review:

(h) The LAT will accept the record as prepared by the parties and not add to it, adduce further evidence or raise any new issues;

(i) The LAT will limit its submissions to the proposed issues (a) and (c) above;

(j) The LAT will make all reasonable efforts to avoid duplicating the Respondent’s submissions;

(k) The LAT will serve a factum not exceeding 15 double-spaced pages;

(l) The LAT will be permitted to make submissions not exceeding 15 minutes at the hearing of the appeal; and

(m) Unless the panel permits otherwise, the LAT will not seek costs.

[15] There will be no costs of this motion.

“Nishikawa J.”

Date: December 16, 2022