CITATION: Luluquisin v. Aviva Insurance Co. of Canada, 2023 ONSC 3912

DIVISIONAL COURT FILE NO.: 505/22

DATE: 20230630

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

Backhouse, Nishikawa and Krawchenko JJ.

BETWEEN:

Rell Nowell Luluquisin

Applicant

– and –

Aviva Insurance Company of Canada and Intact Insurance Company of Canada

Respondents

Mireille Dahab and Avneet Kaur, for the Applicant

Jason Goodman and Faiza Ikram, for Intact Insurance Co.

Kevin So, for the Respondent, Aviva Insurance Co.

HEARD at Toronto: June 19, 2023 (by videoconference)

REASONS FOR DECISION

NISHIKAWA J.

Overview

[1] The Applicant, Rell Nowell Luluquisin, brings an application for judicial review of the reconsideration decision of Vice-Chair Farlam of the Licence Appeal Tribunal (the “Tribunal”) dated August 8, 2022 (the “Reconsideration Decision”) which affirmed the Vice-Chair’s decision dated March 2, 2022 (the “Decision”). The Applicant seeks an order quashing both decisions and an order for a new hearing before the Tribunal.

[2] The Applicant seeks judicial review on the following grounds: (i) the Tribunal failed to apply, or incorrectly applied, the legal test to determine the Applicant’s entitlement to benefits; (ii) the Decision failed to reveal a rational chain of analysis, rendering it unreasonable; and (iii) the Tribunal violated the Applicant’s right to procedural fairness by giving inadequate reasons and failing to provide a fair and unbiased assessment of his application.

[3] For the following reasons, the application for judicial review is dismissed.

Issues

[4] The application for judicial review raises the following issues:

(a) Should this court exercise its discretion to hear the application for judicial review?

(b) If so, are the Decision and the Reconsideration Decision reasonable?

Background

[5] On March 17, 2017, the Applicant was involved in a car accident. He suffered injuries from the accident that were determined to be catastrophic by the first insurer, Aviva Insurance Company of Canada (“Aviva”), in February 2020.

[6] The Applicant sought certain benefits from Aviva pursuant to the Statutory Accident Benefits Schedule, O. Reg. 34/10 (the “SABS”). Aviva denied the Applicant certain benefits. The Applicant brought an application to the Tribunal for dispute resolution in September 2020.

[7] In August 2021, Intact Insurance Company of Canada (“Intact”) assumed priority for the Applicant’s claim from Aviva. Intact was not handling the Applicant’s claim at the time any benefits were denied by Aviva. Intact was added by the Tribunal as an additional respondent.

The Decision

[8] In the Decision, the Tribunal determined that the Applicant was entitled to:

• $1,029.42 per month for attendant care benefits (“ACB”) for the period claimed;

• $9,426.16 for case management services; and

• $2,014.24 for chiropractic treatment if incurred, and if not already paid.

• Interest, if applicable, payable in accordance with s. 51 of the SABS on these amounts.

[9] The Tribunal determined that the Applicant was not entitled to the remaining claims including, but not limited to, a neurological assessment, a chronic pain assessment, a home renovation assessment and social work counselling.

[10] Pursuant to r. 18.2(a) and (b) of the Tribunal’s Rules of Practice and Procedure (the “Rules”), the Applicant requested reconsideration of the Decision, arguing the Tribunal acted outside its jurisdiction or violated the rules of procedural fairness and that it made an error of law or fact such that the Tribunal would likely have reached a different result had the error not been made.

[11] In the Reconsideration Decision, the Tribunal dismissed the Applicant’s request for reconsideration. The Tribunal found that the Applicant had made no specific submissions regarding jurisdiction; the Decision was supported by the evidentiary record and by full and fair reasons; all evidence and documents were considered and properly weighed; and discretion with respect to the award was properly exercised. The Tribunal further found that s. 19 of the SABS was properly applied and the conclusion on entitlement was appropriate because the Applicant failed to provide additional invoices to support a greater ACB entitlement.

Analysis

Should This Court Exercise its Discretion to Hear this Application for Judicial Review?

[12] The Applicant relies on the Court of Appeal’s decision in Yatar v. TD Insurance Meloche Monnex, 2022 ONCA 446,[^1] to argue that he is entitled to seek judicial review of the decisions, notwithstanding the existence of a statutory appeal. The Applicant’s rationale is that it is appropriate to proceed by way of an application for judicial review because the errors that he relies on are errors of mixed fact and law. The Applicant submits that he would not be able to pursue a statutory appeal under s. 11(6) of the Licence Appeal Tribunal Act, 1999, S.O. 1999, c. 12, Sched. G (the “LAT Act”), which limits appeals to questions of law.

[13] The Respondent submits that the Applicant ought to have been brought a statutory appeal, as provided under s. 11(6) of the LAT Act. The Respondent responded to the Applicant’s judicial review application as if it were a statutory appeal.

[14] Under s. 11(6) of the LAT Act, an appeal from a decision of the Tribunal relating to a matter under the Insurance Act is limited to questions of law. In Yatar, the Court of Appeal addressed the availability of judicial review in circumstances where the legislative scheme has provided a statutory appeal on questions of law. The Court of Appeal held that by restricting appeals to questions of law, the legislator has indicated an intent to leave issues of fact or mixed fact and law to the Tribunal to determine, subject to the right to request reconsideration: Yatar, at para. 38. On the availability of judicial review, Nordheimer J.A. stated as follows (at para. 47):

Removing the requirement for exceptional circumstances does not change the rationale or result of the Divisional Court’s decision. It remains true that it will only be a rare case where the remedy of judicial review will be properly resorted to, given the alternative remedies that are available to an unsuccessful party. Those alternative remedies will be, in the vast majority of cases, “adequate in all the circumstances to address the applicant’s grievance”: Strickland, at para. 42.

[15] The existence of an adequate alternative remedy is a valid reason not to exercise the court’s jurisdiction to hear and determine a judicial review application: Yatar, at para. 37.

[16] In my view, in the circumstances of this case, this court should not exercise its discretion to hear the application for judicial review. Given the possibility of bringing a statutory appeal, the Applicant has failed to exhaust the available remedies. Unlike the situation in Yatar, where the applicant brought both a statutory appeal and an application for judicial review, in this case, the Applicant brought only an application for judicial review.

[17] It is unclear why the Applicant chose not to pursue a statutory appeal. At the hearing, counsel submitted that a statutory appeal was not pursued because all the alleged errors are errors of mixed fact and law and, as a result, the appeal would not be as to a question of law only, as required under s. 11(6) of the LAT Act. However, the notice of application for judicial review pleads a number of errors of law. Having alleged errors of law on the part of the Tribunal, the Applicant ought to have pursued a statutory appeal.

[18] Moreover, I find that the allegations raised in the notice of application for judicial review do not support a finding that this is one of the rare circumstances in which this court should exercise its discretion to hear the application for judicial review over the clear legislative direction limiting appeals to questions of law. There is nothing “unusual” about this case to warrant resort to the discretionary remedy of judicial review: Yatar, at para. 42. The import of the Court of Appeal’s decision in Yatar was not to give parties an option of pursuing an application for judicial review in every case where the alleged errors are errors of mixed fact and law.

[19] In addition, the notice of application for judicial review is in respect of the Reconsideration Decision. However, the Applicant seeks to have both the original Decision and the Reconsideration Decision quashed. In respect of the Decision, the application for judicial review was not filed in time: Judicial Review Procedures Act, R.S.O. 1990, c. J.1. While this court has discretion to extend the time to seek judicial review, no motion for an extension of time was brought.

[20] At the hearing, the panel inquired whether the parties agreed to have the matter proceed as a statutory appeal. The Applicant, despite initially taking the position that the matter should be heard as a judicial review application, requested that the panel exercise its discretion to decide the matter as a statutory appeal. Despite having responded to the application for judicial review as if it was a statutory appeal, Intact took the position that the application should not be converted into a statutory appeal.

[21] Leaving aside the issue of the court’s jurisdiction to convert an application for judicial review into a statutory appeal at the hearing stage, in any event, this is not an appropriate case to convert the application for judicial review into a statutory appeal.

[22] In Peel Standard Condominium Corporation No. 779 v. Rahman, 2021 ONSC 7113 (Div. Ct.) para. 42, this court dismissed a judicial review application without prejudice to any motion to extend time for appeal. The court expressly denied the applicant’s request to have the matter proceed as an appeal on the basis that the notice of application referred to the availability of statutory appeal. On this point, Kristjanson J. stated as follows, at para. 22:

Referring to an available statutory appeal does not mean that it is a statutory appeal. This represents a misunderstanding of the importance of the failure to pursue the appropriate remedy. There are different requirements governing appeals and judicial reviews under the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. The powers of the court differ. The role of the CAT differs. I have determined that it would not be fair to the parties to proceed as if this were a properly constituted appeal, given the importance of the requirement that the statutory appeal be limited to (and properly framed as) questions of law. I also place weight on the significant difference that standard of review makes to the arguments, given that statutory appeals are subject to appellate standards of review.

[23] At no time before the hearing did either party raise with the court the issue of whether the matter could properly proceed as an application for judicial review. As found in Peel Standard, the parties ought to have discussed whether the matter should proceed as a statutory appeal or an application for judicial review and raised the issue at a case conference. At a time when all matters before the Divisional Court are being case managed, there is simply no justification for failing to bring the issue to the court’s attention. Kristjanson J.’s comments in Peel Standard, at para. 13, would apply equally here:

In a timely manner counsel could have discussed productive means of resolving concerns, which may have included a consent to abandon the judicial review, extend time for filing of the Notice of Appeal, and proceeding by way of appeal. The Condominium Corporation did not respond to the issue prior to the appearance in court today. It filed no materials and did not seek a Case Management attendance to file a reply factum, or to discuss whether, prior to attending before the panel, the application could be converted to an appeal. Any of these steps might have prevented what happened today and would have avoided a misuse of the resources of the clients and the court.

[24] As a result, I decline to convert the application for judicial review into a statutory appeal.

Conclusion

[25] Accordingly, the application for judicial review is dismissed without prejudice to the Applicant’s ability to seek an extension of time to pursue a statutory appeal.

[26] Pursuant to the parties’ agreement on costs, the Applicant shall pay the respondents’ costs in the amount of $5,000 within 30 days of today’s date.

“Nishikawa J.”

“I agree: Backhouse J.”

“I agree: Krawchenko J.”

Released: June 30, 2023

CITATION: Luluquisin v. Aviva Insurance Co. of Canada, 2023 ONSC 3912

DIVISIONAL COURT FILE NO.: 505/22

DATE: 20230630

Rell Nowell Luluquisin

Applicant

– and –

Aviva Insurance Company of Canada and Intact Insurance Company of Canada

Respondent

REASONS FOR DECISION

Nishikawa J.

Released: June 30, 2023

[^1]: On March 9, 2023, leave to appeal was granted by the Supreme Court of Canada: 2023 17178 (SCC).