CITATION: Robinson v. AIG Insurance, 2023 ONSC 1317
DIVISIONAL COURT FILE NO.: 22-320 and 22-494 DATE: 20230223
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
Backhouse, Lococo and Abrams JJ.
BETWEEN:
CARRIE ROBINSON
Appellant/Applicant
– and –
AIG INSURANCE
Respondent
– and –
THE LICENCE APPEAL TRIBUNAL
Respondent
COUNSEL: Ashu Ismail, for the Appellant/Applicant Jason Frost, for the Respondent AIG Insurance Valerie Crystal and Megan Peck, for the Respondent Licence Appeal Tribunal
HEARD at Toronto (by video conference): February 23, 2023
ORAL REASONS FOR JUDGMENT
R.A. Lococo J. (Orally)
[1] The appellant Carrie Robinson appeals and seeks judicial review of the decision of the Licence Appeal Tribunal dated May 4, 2022[^1] and the Tribunal’s reconsideration decision dated August 3, 2022.[^2] Those decisions relate to the appellant’s entitlement to attendant care benefits (“ACB”) under the Statutory Accident Benefits Schedule[^3] (“SABS”), following a motor vehicle accident in March 2019, in which the appellant was catastrophically injured.
[2] In the initial decision (confirmed by the same adjudicator upon reconsideration), the Tribunal found that the appellant was not entitled to ACB from May 15, 2019, beyond those amounts already paid by the respondent AIG Insurance. The Tribunal also dismissed the appellant’s motion that the adjudicator recuse herself. The appellant seeks to set aside the decisions, a rehearing before a different adjudicator, and an emergency Tribunal hearing to consider her entitlement to ACB on an interim basis.
[3] The appellant alleges that in the decisions, the adjudicator made errors on questions of law, reviewable on a correctness standard, relating to the legal test for determining entitlement to and quantum of ACB. The appellant also disputes that certain of the adjudicator’s conclusions were reasonable, the standard of review that generally applies on a judicial review application. As well, the appellant alleges a reasonable apprehension of bias, arguing that the adjudicator was unreasonable in making adverse rulings against the appellant in the decisions under review and other procedural motions. The appellant also relies on a statistical analysis of the adjudicator’s previous Tribunal decisions (prepared by another lawyer with appellant’s counsel), which the appellant argues substantiates the adjudicator’s bias in favour of insurers.
[4] Under s. 11(6) of the Licence Appeal Tribunal Act,[^4] the Divisional Court has jurisdiction to hear an appeal from a Tribunal decision, but only on a question of law.
[5] I agree with the respondent that the issues that the appellant raises relating to the Tribunal’s initial and reconsideration decisions do not relate to questions of law, or legal principles extricable from questions of mixed fact and law. The alleged errors relate to the application of the facts to the applicable legal test or are in substance challenges to the sufficiency or weight of evidence supporting findings of fact that in each case do not give rise to questions of law. In these circumstances, this court has no jurisdiction on appeal to interfere with the Tribunal’s decisions: see the Divisional Court decision in Yatar v. TD Insurance Meloche Monnex,[^5] at paras. 28-29, a decision that was subsequently affirmed by the Court of Appeal.
[6] As well, I see no sufficient basis for finding that the appellant established a reasonable apprehension of bias on the part of the adjudicator. As the case law indicates, there is a strong presumption in favour of the impartiality of an adjudicative decision maker that is not easily displaced. The fact that an adjudicator makes findings against a party’s interest is not sufficient in itself to substantiate a claim for bias. As well, a statistical analysis of previous decisions, on its own, does not establish bias: see Warren v. Licence Appeal Tribunal,[^6] a 2022 decision of this court.
[7] Accordingly, I would dismiss the appeal.
[8] This court also has the discretion to consider a judicial review application relating to a Tribunal decision that is subject to appeal to the Divisional Court.[^7] However, in the Court of Appeal decision in Yatar,[^8] at para. 42, the court indicated that this discretion would only be exercised in “rare cases”, that is, where there was “something unusual about the case” to warrant resort to the discretionary remedy of judicial review, given the legislative scheme for resolution of SABS disputes. I agree with the respondent that the Tribunal’s decisions in this case do not constitute a rare instance in which a judicial review application is warranted in addition to a statutory appeal.
[9] Accordingly, I would also dismiss the appellant’s judicial review application.
[10] As agreed by the parties, AIG’s costs are fixed at $10,000, payable by the appellant.
[11] There will be no costs awarded for or against the Licence Appeal Tribunal.
R.A. Lococo J.
I agree
Backhouse J.
I agree
Abrams J.
Date of Oral Reasons for Judgment: February 23, 2023 Date of Written Release: June 13, 2023
CITATION: Robinson v. AIG Insurance, 2023 ONSC 1317 DIVISIONAL COURT FILE NO.: 22-320 DATE: 20230223
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
Backhouse, Lococo and Abrams JJ.
BETWEEN:
CARRIE ROBINSON Appellant/Applicant
– and –
AIG INSURANCE Respondent
– and –
THE LICENCE APPEAL TRIBUNAL Respondent
ORAL REASONS FOR JUDGMENT
R.A. Lococo J.
Date of Oral Reasons for Judgment: February 23, 2023 Date of Written Release: June 13, 2023
[^1]: 2022 35796 (Ont. LAT). [^2]: 2022 70250 (Ont. LAT). [^3]: Statutory Accident Benefits Schedule – Effective September 1, 2010, O. Reg. 34/10, under the Insurance Act, R.S.O. 1990, c. 1.8. [^4]: R.S.O. 1990, c. 12, Sched. G. [^5]: 2021 ONSC 2507 (Div. Ct.); aff’d 2022 ONCA 446. [^6]: 2022 ONSC 3741 (Div. Ct.), at para. 40. [^7]: Judicial Review Procedure Act, R.S.O. 1990, c. J.1, s. 2(1). [^8]: 2022 ONCA 446, at para. 42.