Court File and Parties

CITATION: Rao v. Wawanesa Mutual Insurance Company, 2024 ONSC 39

DIVISIONAL COURT FILE NO.: 618/22

DATE: 2024-01-04

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: MIRELLA RAO, Moving Party

AND:

WAWANESA MUTUAL INSURANCE COMPANY, Respondent

BEFORE: Matheson J.

COUNSEL: Sandi J. Smith, as agent for counsel for Moving Party

Paul Omeziri, for the Respondent

HEARD at Toronto: December 6, 2023 (by videoconference) followed by written submissions

Endorsement

[1] The moving party Mirella Rao seeks an extension of time to bring an appeal from the Licence Appeal Tribunal (“LAT”). The underlying dispute relates to a LAT decision dated May 12, 2022 (the “Merits Decision”), finding that Ms. Rao was not catastrophically impaired and denying certain benefits under the Statutory Accident Benefits Schedule (“SABS”). There was then a course of events through which Ms. Rao sought to challenge the Merits Decision through the reconsideration process at the LAT, ultimately giving rise to a notice of appeal in this Court.

[2] There is no issue that there was a right to appeal the Merits Decision. However, no appeal was brought within 30 days of that decision and the notice of appeal submitted about four and a half months later refers to later LAT decisions. Those later LAT decisions arose from attempts to have the Merits Decision reconsidered, as discussed below.

[3] As of the submissions on this motion, counsel to the moving party seeks to expressly include the Merits Decision in the notice of appeal and seeks an extension of time to appeal the Merits Decision.

[4] Both the moving party and moving party’s counsel before the LAT provided affidavits on this motion. There were no cross-examinations. Wawanesa Mutual put forward an affidavit in response to the motion. Although Wawanesa Mutual submits that prejudice should be implied, there is no evidence of actual prejudice before me.

Brief Background

[5] I summarize the key events in this case as follows.

[6] The Merits Decision arose from an eight day hearing before Adjudicator Shapiro. The Merits Decision was released on May 12, 2022.

[7] The next day, Ms. Rao instructed her counsel to dispute the Merits Decision and seek a reconsideration. The rest of her affidavit focuses on the reconsideration. Ms. Rao’s counsel’s affidavit also focuses on seeking a reconsideration of the Merits Decision.

[8] In turn, on May 13, 2022, counsel to Ms. Rao ordered the transcripts from the hearing and emailed all concerned saying that it was their intention to seek a reconsideration. In that email, counsel sought an extended timetable for the reconsideration that permitted time to get the transcripts. Counsel to Ms. Rao was told to bring a motion for an extension of time and did so. Wawanesa Mutual resisted the motion.

[9] By decision dated August 11, 2022, the LAT denied the motion (“LAT Decision denying an extension of time”). Among other reasons, Adjudicator Jarda emphasized that the transcripts could have been ordered on an expedited basis and received within the normal 21-day time period to seek a reconsideration. He found the length of delay unreasonable. On the merits of the proposed reconsideration (which the Adjudicator called an appeal), the Adjudicator noted the narrow grounds for a reconsideration under Rule 18.2 of the LAT Common Rules of Practice and Procedure and concluded that the proposed reconsideration did not have a reasonable chance of success.

[10] Ms. Rao attests that as a person reliant on CPP Disability Benefits for income, the cost of ordering the transcripts on an expedited basis would have made the reconsideration process cost prohibitive.

[11] Given the LAT Decision denying an extension of time, no reconsideration of the Merits Decision took place.

[12] Ms. Rao then sought a reconsideration of the LAT Decision denying an extension of time. On the motion before me, Wawanesa Mutual misdescribed this step as a reconsideration of a reconsideration. The first reconsideration was not permitted to proceed. In any event, this request for a reconsideration was also denied. On September 27, 2023, the LAT released the decision (the “LAT Decision denying a reconsideration of the denial of an extension of time”). The reasons given indicated that the request was denied because a reconsideration is only available from a final decision of LAT and the denial of an extension of time was not a final LAT decision.

[13] Counsel to Ms. Rao attests that she erred in law in advising her client to seek what she called an appeal from the LAT Decision denying an extension of time because it was a final order. It appears from the record that reconsiderations were also called appeals at the LAT.

[14] On October 27, 2023, an application for judicial review was commenced on behalf of Ms. Rao, alleging a denial of procedural fairness. The notice of application sought to quash the LAT Decision denying a reconsideration of the denial of an extension of time and sought a mandatory order granting an extension of time for a reconsideration of the Merits Decision. In response, LAT indicated that a notice of appeal should be considered.

[15] A notice of appeal to the Divisional Court was delivered on November 1, 2022. The notice of appeal also sought an extension of time for a reconsideration of the Merits Decision. The notice of appeal was delivered thirty four days after the LAT Decision denying a reconsideration of the denial of an extension of time. The moving party then brought this motion to extend the time to appeal to the Divisional Court.

Length of delay/appeal rights

[16] Looking at a four day delay understates the issues on this motion. Among other arguments raised on the motion, Wawanesa Mutual submits that there is no right of appeal from either the LAT Decision denying an extension of time or the LAT Decision refusing a reconsideration of the denial of an extension of time. Wawanesa Mutual submits that there is only a right of appeal from the Merits Decision. Further, the notice of appeal did not expressly challenge the Merits Decision. The respondent therefore submits that the recent request to appeal the Merits Decision should determine the length of the delay.

[17] As a result, I have heard submissions based on a delay of four days (from the LAT Decision denying reconsideration of the denial of an extension of time to the notice of appeal), four and a half months (from the Merits Decision to the notice of appeal) and about eighteen months (from the Merits Decision until now).

[18] Counsel for both parties on this motion made submissions about the practice in the personal injury bar regarding when to serve a notice of appeal to the Divisional Court when a reconsideration is also sought at the LAT. There was reference to a practice of serving the notice of appeal within thirty days of the decision that is the subject of a reconsideration request, and, in parallel, seeking reconsideration from the LAT. There was also reference to waiting until after the reconsideration decision was released and then serving the notice of appeal challenging both decisions. As I said at the hearing, while I accept that counsel were trying to be helpful to the Court, these ad hoc submissions are of limited assistance. They are not evidence and at most show an inconsistent practice. In addition, in this case, an extension of time was needed from the LAT before there would be a reconsideration. This is not the more straightforward case of a final merits decision followed by a reconsideration decision.

[19] I proceed on the basis that there is only a right of appeal from the Merits Decision. The right of appeal to this Court is limited to final LAT orders only. There is no right of appeal from interlocutory decisions of LAT: Penney v. The Co-operators General Insurance Company, 2022 ONSC 3874 (Div. Ct.), at para. 26.

[20] The LAT Decision denying an extension of time is not a final order giving rise to a right of appeal. That LAT Decision did not decide the merits. It declined to grant an extension of time to pursue an internal LAT route to have the merits reconsidered by the LAT.

[21] The moving party relies on the comment at the end of the reasons for decision on the motion to extend time, where the Adjudicator said that the “Tribunal shall close the applicant’s file.” This reference to an administrative step does not determine the question of appeal rights. The LAT Decision denying an extension of time was interlocutory and did not give rise to a right of appeal to this Court.

[22] The LAT Decision denying reconsideration of the denial of an extension of time is also not a final decision giving rise to a right of appeal. It cannot be that simply requesting a reconsideration would give rise to a right of appeal where the underlying decision has no such right. If that were so, there could be an appeal to this Court from every interlocutory decision, indirectly, by seeking a reconsideration. On the contrary, the statute grants a right of appeal from final decisions only.

[23] The moving party relies on the decision of this Court in Hordo v. CAA Insurance Company, 2023 ONSC 6774, also arising from a motion for an extension of time to appeal to this Court. It appears that Hordo proceeded on the assumption that the time to appeal began when the LAT released its reconsideration decision. That position was not challenged and there was no discussion about whether or not there was a right of appeal from the reconsideration decision. Further, Hordo did not involve a motion for an extension of time to have a reconsideration at the LAT. This case is therefore of limited assistance.

[24] There is also the decision of this Court in Grewal v. Peel Mutual Insurance Company, 2022 ONSC 4082. In Grewal, an appeal was quashed because the LAT decision at issue was not final. The LAT decision denied a request to add a punitive damages claim to a SABS application at an early stage of the LAT process. A reconsideration of that LAT decision had already been denied. Although the facts in Grewal are different, it supports the conclusion that LAT decisions denying a reconsideration do not automatically give rise to a right of appeal to this Court. The LAT Decision denying reconsideration of the denial of an extension of time was interlocutory and did not give rise to a right of appeal to this Court. I do not have to decide whether a reconsideration decision can ever be final – that case is not before me.

[25] I conclude that only the Merits Decision gives rise to a right of appeal in this case.

[26] Wawanesa Mutual then submits that this Court has no jurisdiction because the Merits Decision was not specifically challenged in the original notice of appeal or a later proposed amended version. However, this motion now includes a request to extend the time to appeal the Merits Decision. Such a motion can be the first step in our Court, brought and decided before the resulting notice of appeal is delivered.

[27] I conclude that the time period for the potential appeal began to run in May 2022. Even if I use the longest period of delay, eighteen months, the length of time would not change the outcome of the motion in the particular circumstances of this case.

Extension of time

[28] The test for an extension of time is well-settled. On a motion for an extension of time, the overarching question is whether the justice of the case requires that an extension be given. The court should take into account all relevant considerations, which include: (a) whether the moving party formed a bona fide intention to appeal within the relevant time period; (b) the length of, and explanation for, the delay; (c) any prejudice to the responding parties; and (d) the merits of the proposed appeal: Enbridge Gas Distribution Inc. v. Froese, 2013 ONCA 131, 114 O.R. (3d) 636, at para. 15.

[29] Leave may be denied where the lack of merit of an appeal is so clear-cut that on its own, or in combination with other factors, the motion judge determines that leave should not be granted: Sabatino v. Posta Ital Bar Inc., 2022 ONCA 208, at para. 21. However, “[e]ven where it is difficult to see the merits of a proposed appeal, a party should not be deprived of the right to appeal where there is no real prejudice to the other side”: Sabatino, at para. 20.

[30] On the intention to appeal, Wawanesa Mutual submits that the evidence is entirely focused on an intention to seek a reconsideration. There is no doubt that Ms. Rao’s counsel before the LAT saw that as the appropriate way forward. In turn, there was a lengthy course of events commencing immediately after the Merits Decision, showing many steps taken to challenge the Merits Decision leading up to the commencement of proceedings in this Court about four and a half months later.

[31] It is apparent from the record that Ms. Rao’s counsel before the LAT was proceeding based on wrong assumptions about appeal rights. Even at the time the supporting affidavit was sworn, counsel attested that the reconsideration decision on which the appeal was founded was a final order.

[32] In fairness to that counsel, there is a decision of this Court, Hordo, in which the time to appeal was counted from a reconsideration decision. There also does not appear to be a case that expressly addresses appeal rights in a case like this one.

[33] On the first factor, the evidence strongly supports a conclusion that Ms. Rao intended to challenge the Merits Decision within the relevant time period using the reconsideration process as the first step.

[34] Moving to the second factor, there is an ample explanation for the delay. Before the LAT, Ms. Rao’s efforts, while flawed, persisted through the four and a half months leading up to the commencement of proceedings in this Court. Based on Ms. Rao’s evidence about her financial means, I do not conclude that her failure to order expedited transcripts is fatal to this motion. Once proceedings were commenced in this Court, there was some delay due the prudent (if not also necessary) choice to retain new counsel to argue this motion. There were also ordinary course delays to reach the hearing of the motion in this Court, but nothing that would defeat the motion, taken in isolation.

[35] There is then the question of prejudice. While there is no actual prejudice, Wawanesa Mutual submits that prejudice should be implied.

[36] Wawanesa Mutual submits that the proposed issues for the appeal, apart from causation, were not raised in the reconsideration process and have continued to change and develop over the course of this motion. Counsel submits that the moving party would be getting a very long period of time to formulate the grounds for appeal. Before me, the moving party relied on the motion factum, which referred to grounds for appeal in all of the LAT decisions. The challenge to the Merits Decision was focused on causation. The supplementary submissions on this motion did put forward additional detail in the grounds although the main focus was still causation.

[37] Wawanesa Mutual distinguishes Hordo on a number of grounds, noting that it asserted a breach of procedural fairness and that the moving party was unsophisticated and did not have counsel. Here, the proposed appeal does not allege such a breach and Ms. Rao has been represented by counsel throughout.

[38] I note that the right of appeal is on questions of law only. It is difficult to see, in the absence of evidence of prejudice, how a legal argument could be prejudiced because all the grounds for appeal were not raised in the early stages.

[39] Wawanesa Mutual further submits that there is prejudice due to the lack of finality for what is now a lengthy period of time. And if the appeal is successful, the matter would likely be sent back for further consideration at the LAT, resulting in another period of uncertainty.

[40] On the merits of the proposed appeal, I am not persuaded that there is a clear-cut lack of merit such that Ms. Rao should be deprived of the right to appeal where there is no real prejudice to Wawanesa Mutual. Similarly, I am not persuaded that Ms. Rao’s counsel’s fumbling before the LAT and resulting delays should deprive Ms. Rao of her right of appeal in the absence of real prejudice.

[41] No case has been put forward that expressly addresses the appropriate course of action when there is a right of appeal to this Court from the LAT and also a right of reconsideration at the LAT. The parties have noted that the LAT reconsideration rule is arguably broader than the right of appeal to this Court and may provide broader relief. However, parties should not assume that there will be an extension of time to appeal to this Court because of a reconsideration. A party seeking to appeal should deliver the notice of appeal of a final LAT decision within the 30-day time period and pursue the reconsideration in parallel. An ongoing reconsideration may be raised with the Court when setting the schedule for the appeal.

[42] Moving to the overall justice of this case, I have considered all the evidence, submissions and authorities. I exercise my discretion to grant an extension of time in the particular circumstances of this case, on the following terms:

(i) an extension of time is granted to appeal the Merits Decision only;

(ii) the grounds of appeal shall be limited to questions of law arising from the Merits Decision and shall not extend beyond the issues listed in para. 12 of the supplementary submissions of the moving party;

(iii) the above para. (ii) is without prejudice to Wawanesa Mutual challenging any issue on the appeal on the basis that it is not a question of law;

(iv) a notice of appeal in accordance with this decision shall be delivered within two weeks from today;

(v) the appeal shall be expedited; and,

(vi) upon delivery of the notice of appeal the parties shall request an urgent case conference at which the schedule shall be set for the appeal.

[43] With respect to the application for judicial review, which challenges a different LAT decision, the moving party shall notify the Court and Wawanesa Mutual of its intentions for that application within the same two-week time period. It shall then be discussed, as needed, at the above urgent case conference.

[44] Given the divided success on this motion, there shall be no order as to costs.

Matheson J.

Date: January 4, 2024