CITATION: Mansuri v. Dominion of Canada General Insurance Company, 2023 ONSC 5764

DIVISIONAL COURT FILE NO.: 600/22

DATE: 2023-10-18

ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT

BEFORE: R.S.J. Edwards, Backhouse and Lococo JJ.

BETWEEN:

MURTAZA MANSURI, JAVID MANSURI and MOHAMMAD MANSURI

Applicants

– and –

THE DOMINION OF CANADA GENERAL INSURANCE COMPANY, SCHULTZ FROST LLP and THE LICENCE APPEAL TRIBUNAL

Respondents

COUNSEL:

Ryan M. Naimark, for the Applicants

Kadey B. J. Schultz and Colin MacDonald, for the Respondent The Dominion of Canada General Insurance Company

Valerie Crystal, for the Licence Appeal Tribunal

HEARD at Toronto: September 20, 2023

REASONS FOR JUDGMENT

R. A. LOCOCO J.

I. Introduction

[1] The applicants Murtaza Mansuri, Javid Mansuri and Mohammad Mansuri bring an application for judicial review, challenging the interlocutory decision of the respondent Licence Appeal Tribunal dated September 28, 2022, reported at 2022 138547 (the “Initial Decision”).

[2] The Initial Decision was made in the context of the applicants’ five applications for dispute resolution currently before the Tribunal arising from two separate motor vehicle accidents that occurred in 2018. In those applications, the applicants are challenging the denial by the respondent The Dominion of Canada General Insurance Company (“Dominion”) of certain of the applicants’ claims for accident benefits arising from the motor vehicle accidents.

[3] In the Initial Decision, the Tribunal dismissed the applicants’ interlocutory motion to disqualify Dominion’s counsel and its adjuster from handling the applicants’ accident benefits claims on the basis of conflict of interest and breach of duties of privacy and confidentiality. In the reconsideration decision dated November 2, 2022 (the “Reconsideration Decision”), the Tribunal refused the applicants’ Request for Reconsideration on the basis that the Initial Decision did not finally dispose of the applications before the Tribunal.

[4] The applicants argue that the court should exercise its jurisdiction upon judicial review and determine on the merits that the Tribunal erred in law in finding that there was no breach of privacy or confidentiality and no conflict of interest.

[5] Dominion disputes the merits of the application but, together with the Tribunal, raises the issue of prematurity. The respondents argue that unless there are exceptional circumstances, the Divisional Court should decline to consider an application for judicial review of the Tribunal’s interlocutory decision until the underlying Tribunal applications are completed. The respondents submit that there are no exceptional circumstances nor is it a “rare case” that would warrant the court’s intervention.

[6] Following oral submissions on the issue of prematurity, the parties were advised at the application hearing that the application was being dismissed, with written reasons to follow. These Reasons for Judgment explain the court’s decision to dismiss the judicial review application as premature, without deciding the merits of the applicants’ challenge to the Initial Decision.

II. Background

A. Applicants’ accident benefits claims and Tribunal applications

[7] The applicants are brothers who at all relevant times resided in a three-bedroom apartment with a common kitchen, living room, bathroom and den.

[8] In 2018, the applicant Murtaza Mansuri was involved in a motor vehicle accident. Later that year, the applicants Javid Mansuri and Mohammad Mansuri were involved in a separate motor vehicle accident.

[9] Following those accidents, the applicants made separate applications to Dominion for accident benefits under Statutory Accident Benefits Schedule – Effective September 1, 2010 (“SABS”), O. Reg. 34/10, s. 3(1), made pursuant to the Insurance Act, R.S.O. 1980, c. I.8. Dominion denied certain claims by two of the applicants for attendant care and housekeeping/ home maintenance services. Those services were provided by personal support workers from the same care provider.

[10] After the denial of benefits, the applicants made five applications to the Tribunal for dispute resolution under s. 280(2) of the Insurance Act. Those applications have not yet been heard on their merits and remain outstanding.

B. Applicants’ motion before the Tribunal

[11] On March 1, 2022, the applicants filed a Notice of Motion before the Tribunal relating to all five applications, alleging that (i) Dominion and its counsel had breached their duties of privacy and confidentiality owed to the applicants, and (ii) Dominion’s counsel and its adjustor had a conflict of interest with respect to the claim of all three applicants. Among other things, the applicants sought an order to (i) disqualify Dominion’s counsel and its adjuster from handling the applicants’ claims, and (ii) require Dominion to retain separate counsel and adjusters to handle the claims of each applicant.

[12] The “essential facts” upon which the applicants relied in support of their motion were “undisputed”: Initial Decision, at para. 29. Based on those facts, the applicants alleged the improper sharing and commingling of information with respect to their claims, as set out in the Initial Decision at paras. 29-24 (relating to the adjuster) and paras. 38-41 (relating to Dominion’s counsel).

[13] In the Initial Decision, at para. 63-64, the Tribunal adjudicator (Vice-Chair Theresa McGee) dismissed the applicants’ motion, finding that the applicants had not established a factual and legal basis for a breach of duties of privacy and confidentiality that warranted disqualification of Dominion’s adjuster and counsel. Among other things, the Tribunal found that under the terms of the Application for Accident Benefits (OCF-1) that the applicants signed when they made their claims, the applicants consented to the pooling of information relating to their claims: Initial Decision, at para. 45-47.

[14] In the Reconsideration Decision, the Tribunal adjudicator (Vice-Chair E. Louise Logan) dismissed the applicants’ Request for Reconsideration of the Initial Decision. The Tribunal relied on r. 18.1 of the Licence Appeal Tribunal, Animal Care Review Board, and Fire Safety Commission Common Rules of Practice and Procedure, Version I (October 2, 2017)[^1] (“Common Rules”), which provides that the Tribunal may, upon a party’s request, “reconsider any decision of the Tribunal that finally disposes of an appeal” (emphasis added). An “appeal” is defined as including an application or a claim: Common Rules, r. 2.1. Since the underlying proceeding remained ongoing, the Tribunal would not entertain the Request for Reconsideration: Reconsideration Decision, at paras. 3-5.

C. Application for judicial review

[15] The applicants bring an application for judicial review of the Initial Decision. In their application, the applicants submit that the Tribunal erred in law, including by finding that there was no breach of privacy or confidentiality and no conflict of interest. They seek a declaration that (i) Dominion and its counsel have breached each applicant’s privacy and confidentiality, and (ii) Dominion’s counsel is in an actual or potential conflict of interest and should be removed as Dominion’s counsel.

[16] The applicants also submit that the court should exercise its jurisdiction to hear and determine the application on its merits, rather than leaving the matter to be determined by way of challenge to the final orders of the Tribunal disposing of their accident benefit applications.

III. Legal principles

A. Jurisdiction

[17] In support of their submissions on jurisdiction, the applicants rely on the Court of Appeal decision in Yatar v. TD Insurance Meloche Monnex, 2022 ONCA 446 [“Yatar CA”], leave to appeal allowed, [2022] S.C.C.A. No. 310. In that case, the appellant brought an unsuccessful application before the Tribunal to determine whether she was statute-barred from challenging a denial of her claims for accident benefits under SABS. The appellant brought both an appeal and a judicial review application before the Divisional Court, challenging the Tribunal’s decision.

[18] In its decision (reported at 2021 ONSC 2507;157 O.R. (3d) 337 (Div. Ct.)) [“Yatar DC”], the Divisional Court dismissed both the appeal and the judicial review application. At para. 24, the court noted that it had jurisdiction to hear the appeal on a question of law only: Licence Appeal Tribunal Act, 1999, S.O. 1999, c. 112, Sched. G (“LAT Act”), s. 11(6). The court found that there was no error of law and dismissed the appeal on that basis: Yatar DC, at para. 32.

[19] With respect to the judicial review application, the Divisional Court recognized that a statutory appeal on questions of law “does not deprive this court of jurisdiction to consider other aspects of a decision in judicial review proceedings”: Yatar DC, at para. 36. However, the court decided to exercise its discretion to dismiss the judicial review application. In reaching that conclusion, the court considered the following factors:

a. The SABS statutory scheme, which included the Tribunal’s exclusive jurisdiction at first instance over disputes under SABS and a statutory appeal right restricted to questions of law: at para. 41;

b. The availability of an adequate alternative remedy, the Tribunal’s reconsideration power, that applied in that case (since the decision under review was a final decision) and provided an “internal standard of review that is akin to correctness”: at paras. 38-39, 42-43;

c. The nature of the alleged errors in that case, being alleged errors on questions of fact or mixed fact and law involving assessment of the evidence: at para. 44; and

d. Systemic difficulties associated with duplicative judicial reviews and appeals: at para. 45.

[20] Weighing those factors, the Divisional Court concluded that “judicial review of a LAT SABS decision is only available, if at all, in exceptional circumstances.” The court found that there were no exceptional circumstances and dismissed the judicial review application: at para. 46

[21] In Yatar CA, the Court of Appeal upheld the Divisional Court’s decision and dismissed the appeal. In doing so, the court considered whether the Divisional Court erred in limiting judicial review to “exceptional circumstances” in cases where there has been a statutory appeal from a Tribunal decision about SABS: Yatar CA, at para. 27. The court expressed the view that the use of the language “exceptional circumstances” was unfortunate in that context but went on to indicate that “it would only be in rare cases that the remedy of judicial review would be exercised”: Yatar CA, at para. 35. Put another way, “there would have to be something unusual about the case to warrant resort to the discretionary remedy of judicial review, given the [SABS] statutory scheme”, which includes “the right to reconsideration of the Tribunal's preliminary decision and the statutory right of appeal from decisions of the Tribunal on questions of law”: Yatar CA, at para. 42.

[22] At para. 44, the court rejected the submission that the Divisional Court erred by exercising its discretion to refuse relief without first considering the merits of the judicial review application. The Court of Appeal found that the “court's discretion with respect to judicial review applies both to its decision to undertake review and to grant relief”, relying on previous case law that included Strickland v. Canada (Attorney General), 2015 SCC 37, [2015] 2 S.C.R. 713, at para. 42.

[23] At para. 45, the Court of Appeal went on to state as follows:

I agree with the Divisional Court's approach, which essentially concluded that judicial review should be restricted to those rare cases where the adequate alternative remedies of reconsideration, together with a limited right of appeal, are insufficient to address the particular factual circumstances of a given case. What constitutes such a rare case is for the Divisional Court to determine on a case-by-case basis.

[24] At para. 47, the court also noted as follows:

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.

[25] At para. 48, the court also found that the Divisional Court’s use of the words “if at all” in exceptional circumstances was unfortunate and unnecessary, noting that in that context “judicial review is always available. The pertinent question is whether it is appropriate, in any given case, to exercise the discretion to hear and determine that judicial review.”

[26] The applicants submit that the Divisional Court has jurisdiction to hear and determine the judicial review of the Initial Decision, given that the alternative remedies of reconsideration and appeal are not available with respect to an interlocutory decision of the Tribunal: see Common Rules, r. 18.1; Penney v. The Co-operators General Insurance Company, 2022 ONSC 3874, 25 C.C.L.I. (6th) 305 (Div. Ct.), at para. 26[^2]. There is no dispute that the Initial Decision is an interlocutory order, since it does not finally dispose of the underlying proceedings before the Tribunal or a substantive issue or claim in that proceeding: see Penney, at para. 6.

[27] There is also no dispute that the Divisional Court has jurisdiction to hear and determine this judicial review application, in its discretion: see Judicial Review Procedure Act, R.S.O. 1990, c. J.1, ss. 2(1), 2(5), 6(1). The pertinent question is whether it is appropriate to exercise the discretion to hear and determine the judicial review in this case: Yatar CA, at para. 48.

B. Prematurity

[28] In support of their submission that this judicial review application should be dismissed as premature, the respondents rely on previous case law that provides that unless there are exceptional circumstances, the court will generally decline to consider an application for judicial review until the underlying tribunal proceeding has been completed. The rationale for this principle was summarized in Canada (Border Services Agency) v. C.B. Powell Limited, 2010 FCA 61, [2011] 2 F.C.R. 332, at paras. 31-32 (quoted with approval by the Court of Appeal for Ontario in Volochay v. College of Massage Therapists of Ontario, 2012 ONCA 541, 111 O.R. (3d) 561, at para. 69), as follows:

Put another way, absent exceptional circumstances, courts should not interfere with ongoing administrative processes until after they are completed, or until the available, effective remedies are exhausted.

This prevents fragmentation of the administrative process and piecemeal court proceedings, eliminates the large costs and delays associated with premature forays to court and avoids the waste associated with hearing an interlocutory judicial review when the applicant for judicial review may succeed at the end of the administrative process anyway. Further, only at the end of the administrative process will a reviewing court have all of the administrative decision-maker’s findings; these findings may be suffused with expertise, legitimate policy judgments and valuable regulatory experience. Finally, this approach is consistent with and supports the concept of judicial respect for administrative decision-makers who, like judges, have decision-making responsibilities to discharge. [Citations omitted.]

[29] The prematurity principle has been consistently applied by the Divisional Court on judicial review from interlocutory tribunal decisions and was recently summarized in Gill v. College of Physicians and Surgeons, 2021 ONSC 7549, at para. 31 (Div. Ct.), as follows:

This court has repeatedly held that absent exceptional circumstances, applications for judicial review of decisions of administrative bodies should not be brought until the end of the tribunal’s proceedings and after the party seeking review has exhausted all available effective remedies within the administrative scheme: Ontario College of Art v. Ontario (Human Rights Commission) (1993), 11 O.R. (3d) 798, 99 D.L.R. (4th) 738 (Div. Ct.). The rationale for this principle is to avoid a piecemeal approach to judicial review, to allow administrative matters to run their full course before the tribunal, and to have all legal issues arising from the proceeding considered together at their conclusion.

[30] Previous cases have also indicated that while courts may exercise their discretion to entertain a premature judicial review in “exceptional circumstances”, that is a high bar to establish. As stated in C.B. Powell, at para. 33:

Courts across Canada have enforced the general principle of non-interference with ongoing administrative processes vigorously. This is shown by the narrowness of the “exceptional circumstances” exception.... Suffice to say, the authorities show that very few circumstances qualify as “exceptional” and the threshold for exceptionality is high.... Concerns about procedural fairness or bias, the presence of an important legal or constitutional issue, or the fact that all parties have consented to early recourse to the courts are not exceptional circumstances allowing parties to bypass an administrative process, as long as that process allows the issues to be raised and an effective remedy to be granted.... [Citations omitted.]

[31] Similarly, in Kadri v. Windsor Regional Hospital, 2019 ONSC 5427 at para. 59 (Div. Ct.), the court indicated as follows:

Thus, the general rule is that resort to the courts by way of judicial review of interlocutory, procedural or evidentiary rulings will only be permitted in rare cases where “exceptional circumstances” exist. The bar is very high. Assertions of bias, procedural unfairness, breach of natural justice and lack of jurisdiction do not give rise to an automatic right to judicial review. [Emphasis added.]

[32] As well, in Lourenco v. Hegedus, 2017 ONSC 3872 (Div. Ct.), at para. 6, the court stated that early judicial review “is the rare exception, not the rule, and will only be permitted in rare cases where the potential prejudice of the risk of repeating proceedings after review outweighs the prejudice to the general orderly processing of administrative proceedings without interruption until their conclusion” (emphasis added).

[33] Previous case law also indicated that it is not an exceptional circumstance that the tribunal hearing will need to be conducted again if the court ultimately overturns the tribunal’s final decision. That possibility always exists in a premature judicial review and is generally outweighed by the benefits of allowing the tribunal proceeding to run its course. In Pafco Insurance Company v. Sahadeo, 2022 ONSC 328 (Div. Ct.), at paras. 13-14, the court emphasized that the potential for a successful appeal from the tribunal’s final decision is insufficient to establish exceptional circumstances:

Administrative tribunals make evidentiary rulings in the ordinary course of their work. The impact of those rulings is often potentially material. If this case does not offend the principle of prematurity, then appeals would be permitted in the ordinary course from interlocutory rulings – all a party would have to establish to interrupt the proceedings below is that the effect of the impugned ruling could matter to it in the final result, and that there is an arguable basis for the appeal. Permitting interlocutory appeals in this manner could render the underlying proceedings interminable.

The appellant’s submissions focus on the merits of its appeal. They do not address the jurisprudence as to what constitutes “exceptional circumstances” to overcome the prematurity principle. Having an arguable, even a strong, appeal is not sufficient to establish exceptional circumstances.

[Emphasis added.]

IV. Analysis and conclusion

[34] The applicants submit that the facts and circumstances of this matter make it one of the rare cases in which judicial review of an interlocutory decision should be permitted to proceed. They say that the absence of alternative remedies of reconsideration and appeal leave no alternative to a judicial review application that would be sufficient to address the unique circumstances of this case. They also submit that deferring review of the Initial Decision until the underlying Tribunal applications are determined may result in the need to rehear and redetermine five applications for three applicants, resulting in needless delay and inefficiency. The applicants also argue that the continuing improper commingling and sharing of information by Dominion and its counsel and the continued involvement of conflicted persons would result in irreparable prejudice to the applicants that may be averted by hearing and determining the early judicial review of the Initial Decision.

[35] I do not agree.

[36] When an applicant seeks early judicial review of an interlocutory administrative decision, the burden is on the applicant to justify departure from the usual approach of waiting until the underlying proceedings are complete. The bar to be met is a high one, whether expressed as a “rare case” or “exceptional circumstances”. I have concluded that in either case, the applicant have not met that burden.

[37] Contrary to applicants’ submission, this is not a case where the applicants have no effective alternative to early judicial review. It is true that at this stage the applicants have no access to reconsideration (Common Rules, s. 18.1) or appeal (LAT Act, s. 11(6); Penney, at para. 26), but that is part of the SABS statutory scheme, which is entitled to deference: Yatar CA, at paras. 42-45; Vavilov v. Canada (Minister of Citizenship and Immigration), 2019 SCC 65, [2019] 4 S.C.R. 653, at paras. 24, 36. Once the underlying Tribunal applications are complete, the applicants will have access to reconsideration and to an appeal (on a question of law), consistent with the statutory scheme. The applicants would also have access to judicial review, subject to the court’s discretion in a “rare case” as outlined in Yatar CA, at paras. 45, 47.

[38] I am also not persuaded that early judicial review is justified in the interest of avoiding delay and inefficiency. As noted in Pafco, at para. 13, even if the impact of an interlocutory ruling is potentially material, that fact (if established) does not necessarily outweigh the benefits of allowing the underlying proceedings to run their course. While it is possible that a successful appeal may result in three Tribunal re-hearings in this case, I am not satisfied that result would outweigh the benefits of waiting until the underlying proceedings are complete before addressing the applicants’ challenge to the Initial Decision. In fact, there may not be any need for subsequent court proceedings at all, depending on the outcome of the Tribunal applications.

[39] As well, I do not agree that the applicants would suffer irreparable prejudice if the issues of improper information sharing and conflict of interest are not determined in an early judicial review.

[40] In Penney, at para. 31, the court found that dismissal of a motion to remove insurer’s counsel in SABS proceedings did not constitute “exceptional circumstances” in that case. The court went on to note as follows: “The Tribunal found that the factual basis to show a conflict of interest had not been made out. This is not a situation where there is a fatally flawed proceeding and where the alleged deficiencies cannot be cured on an ultimate appeal.”

[41] The Divisional Court made a contrary finding in The Personal Insurance Co. Ltd. v. Jia, 2020 ONSC 6361 (Div. Ct.), where the court stated it was exercising its discretion to hear and decide an appeal from the Tribunal’s interlocutory decision that found that insurer’s counsel had a conflict of interest in acting in both a priority dispute and benefits dispute for the same accident. The court stated that it exercised its discretion to do so on the basis that the conflict decision “is evasive of appeal and it is potentially a matter of general practice important in proceedings before LAT”: Jia, at para. 15.

[42] On the issue of whether a motion to remove counsel constitutes exceptional circumstances, the foregoing cases may be reconciled on the basis that in each case, the court exercised its discretion to determine whether, in the particular circumstances of the case, early judicial intervention outweighed the benefits of following the usual practice of allowing the Tribunal proceeding to run its course.

[43] In all the circumstances, I am not persuaded that the applicants have met the high bar required to justify early judicial review. Analogous to the decision in Penney, the Tribunal found in the Initial Decision that there was no conflict of interest and no improper sharing of information. To the extent that there are “alleged deficiencies” arising from the Initial Decision, the applicants have not established that they “cannot be cured on an ultimate appeal.” Put another way, the applicants have not established that the alleged prejudice to the applicants outweighs the benefits of a single court proceeding once the underling Tribunal proceedings are complete.

V. Disposition

[44] Accordingly, I would dismiss the application for judicial review as premature.

[45] The parties have advised that they have resolved the issue of costs. Therefore, there will be no costs order.

___________________________ Lococo J.

I agree: ___________________________ R.S.J. Edwards

I agree: ___________________________ Backhouse J.

Date of Release: October 18, 2023

CITATION: Mansuri v. Dominion of Canada General Insurance Company, 2023 ONSC 5764

DIVISIONAL COURT FILE NO.: 600/22

DATE: 2023-10-18

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

R.S.J. Edwards, Backhouse and Lococo JJ.

BETWEEN:

MURTAZA MANSURI, JAVID MANSURI and MOHAMMAD MANSURI

Applicants

– and –

THE DOMINION OF CANADA GENERAL INSURANCE COMPANY, SCHULTZ FROST LLP and THE LICENCE APPEAL TRIBUNAL

Respondents

REASONS FOR JUDGMENT

R. A. LOCOCO J.

Date of Release: October 18, 2023

[^1]: The Common Rules were made pursuant to the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22, s. 25.1, and the Licence Appeal Tribunal Act, 1999, S.O. 1999, c. 112, Sched. G, s. 6. For proceedings before the Licence Appeal Tribunal, the Common Rules have been superseded by the Licence Appeal Tribunal Rules, effective August 21, 2023.

[^2]: There are other decisions that suggest (contrary to Penney) that the Divisional Court has authority to hear an appeal from an interlocutory order of the Tribunal under s. 11(6) of the LAT Act in exceptional circumstances: Taylor v. Aviva Canada Inc., 2018 ONSC 4472 (Div. Ct.), at para. 19; see also Kahissay v. Intact Insurance, 2022 ONSC 6357 (Div. Ct.); The Personal Insurance Co. Ltd. v. Jia, 2020 ONSC 6361 (Div. Ct.). It is not necessary to resolve this issue for purposes of the current application, since doing so would not affect the result.