Court File and Parties

CITATION: Di Giulio v. Aviva General Insurance Company, 2023 ONSC 2426 DIVISIONAL COURT FILE NO.: 162/23 DATE: 2023-04-26

SUPERIOR COURT OF JUSTICE – ONTARIO DIVISIONAL COURT

RE: FRANCESCO DI GIULIO, Appellant AND: aviva general insurance company, Respondent

BEFORE: Matheson J.

COUNSEL: Kaitlyn MacDonell, for the Appellant/Moving Party Michael Chadwick, for the Respondent

HEARD: In writing.

Endorsement

[1] The appellant moves for a stay pending the determination of his application for judicial review. More specifically, he seeks to stay an ongoing matter that is currently before the Licence Appeal Tribunal (“LAT”) regarding his claim for statutory accident benefits.

[2] The underlying application for judicial review challenges the interlocutory decision of Adjudicator Jarda dated February 21, 2023 (the “Decision”), in which the appellant’s request to convert a written hearing into an oral hearing was denied. This was the second attempt to convert the form of the hearing. In August 2022, the appellant unsuccessfully sought a virtual hearing rather than a written hearing. At that time, the LAT concluded that given the issues, the in-writing hearing was the most expeditious, fair, cost-effective and proportional process. The LAT noted that the medical documents could be challenged in written submissions.

[3] In the Decision, the Adjudicator noted that the appellant was making essentially the same submissions as were made the first time, and that there had been no change of circumstances.

[4] The in-writing hearing is scheduled for May 12, 2023.

[5] The test for a stay is well-established. In summary, the overall consideration is whether it is in the interests of justice to grant a stay. In making that determination, the court is to consider the following three factors:

a. Whether the application raises a serious issue;

b. Whether there will be irreparable harm if the stay is not granted; and

c. Whether the balance of convenience favours granting the stay.

[6] While the threshold for the first factor – serious issue – is low, it is significant in this case. This is a challenge to an interlocutory order of the LAT. Not surprisingly, the respondent submits that the stay should be denied because the application for judicial review is premature. There is no question that it is premature. The proceedings before the LAT have not yet concluded. There is no LAT decision on the appellant’s statutory accident benefits claim.

[7] “It is a fundamental principle of our legal system as it relates to both litigation before the LAT and similar tribunals, as well as trials in our court system, that decisions made during the course of a proceeding are not subject to judicial review or an appeal until such time as the process itself is complete”: Cura v. Aviva Insurance Canada, 2021 ONSC 2290 (Div. Ct.) at para. 30, citing Volochay v. College of Massage Therapists of Ontario, 2012 ONCA 541. In turn, this court will only hear a premature application for judicial review in exceptional circumstances.

[8] The appellant submits that there are exceptional circumstances because the issues are relevant to the conduct of the LAT proceedings in general and because issues of procedural fairness are important issues. These very general submissions are unlikely to be found to be exceptional circumstances. Further, process issues are often raised in applications for judicial review. They do not necessarily rise to the level of exceptional circumstances. And it remains to be seen whether the process issues raised will have any impact on the outcome.

[9] The appellant further submits that statutory accident benefits are important to a claimant and the decision of whether or not the appellant has access to funding for health care is a serious issue. That may well be so, but that issue has not yet been decided at the LAT. Once the LAT makes its decision about the claimed statutory accident benefits, the appellant will have the opportunity to challenge that decision if he is dissatisfied. The issues raised here may be raised at that time.

[10] While I do not go so far as to say the application is frivolous and vexatious, there is no doubt that the prematurity issue is a major obstacle to the application even being heard on the merits at this stage.

[11] On the second factor, the appellant also submits that the asserted denial of procedural fairness means that there will be irreparable harm through the denial of benefits. However, that will not be known, one way or the other, until the LAT proceedings are complete.

[12] The appellant submits, in essence, that the prematurity rule should not apply to issues of procedural fairness. That submission fails to acknowledge the rationale for the rule, amply expanded on in the cases put forward on this motion. This court is bound by those principles.

[13] On balance of convenience, the appellant submits that it would be more efficient to decide the process issue first. This too is contrary to the principles giving rise to the prematurity rule.

[14] Lastly, the appellant puts forward the power imbalance between him and the insurance company respondent. That is so. However, I am not persuaded that the opportunity to come to the Divisional Court to challenge interlocutory LAT decisions is a positive step in that regard.

[15] Considering all submissions in relation to the interests of justice, the motion for a stay of the LAT proceedings is denied. No costs are claimed and therefore none are ordered.

Matheson J.

Released: April 26, 2023