COURT FILE NO.: 174/24 DATE: 20240925 SUPERIOR COURT OF JUSTICE – ONTARIO DIVISIONAL COURT
RE: TTC INSURANCE COMPANY LIMITED, Applicant/Appellant AND: KAYLA MACMILLAN, Respondent
BEFORE: Shore J.
COUNSEL: Chad Townsend and Nabil Mahmood, for the Appellant Gus Triantafillopoulos and Shannon Kelly, for the Respondent Michael J. Sims and Matthew Chung for the Attorney General of Ontario Jesse Boyce, for the Proposed Intervenor, Licence Appeal Tribunal
HEARD: In writing
Endorsement
1The Applicant/Appellant, TTC Insurance Company Limited (“TTCICL”), is seeking an order extending the time to commence their appeal, and if granted, an order joining the appeal with the application for judicial review of the decision of the Licence Appeal Tribunal (“LAT”), dated February 16, 2024.
2If the motion above is granted, then LAT and the Attorney General of Ontario, are seeking leave to intervene in the appeal.
3Both motions are granted.
Summary of Facts
4On January 9, 2012, then 11-year-old Kayla MacMillan (“Kayla”), the Respondent in this application/appeal, was struck by a TTC bus. She sought accident benefits from the TTCICL, pursuant to the Statutory Accident Benefits Schedule (the “Schedule”).
5Kayla sought, inter alia, a declaration that she had sustained a catastrophic impairment, as defined by the Schedule.
6Between August 21 to 30, 2023, the LAT held a hearing. On October 4, 2023, LAT released its decision, finding that Kayla had sustained a catastrophic impairment.
7TTCICL sought reconsideration of the decision. On February 16, 2024, the reconsideration decision was released, affirming the October 4, 2023, decision.
8On March 15, 2023, TTCICL issues the Application for Judicial Review, and on April 23, 2024, an Amended Notice of Application, alleging, inter alia, that the LAT erred in its reconsideration decision based on errors of law, mixed fact and law and palpable and overriding errors of fact.
9On the same day, the Supreme Court of Canada released its decision in Yatar v. TD Insurance Meloche Monnex (2024 SCC 8), which expanded the scope of judicial review available with respect to decisions from LAT. The decision also permitted the ability to exercise a right to statutory appeal, concurrent with an application for judicial review.
10On June 24, 2024, TTCICL served a notice of motion for an extension of time to file a statutory appeal.
Extension of Time
11Section 11 of the Licence Appeal Tribunal Act, 1999, provides for an automatic right of appeal of LAT decisions to the Divisional Court, provided they are commenced within 30 days after the order is released.
12TTCICL did not start its appeal within the 30-day period following the reconsideration decision. However, it did commence the application within the same 30-day period.
13The Court of Appeal sets out the factors that a court should consider when deciding whether to exercise its discretion to extend the time for bringing an appeal:
a. Did the appellant form an intention to appeal within the relevant time period; b. The length of the delay and the explanation for it; c. Any prejudice to the respondent; d. The merits of the appeal; and e. Whether the “justice of the case” requires it.
see Kefeli v. Centential College of Applied Arts and Technology, 2002).
14On April 23, 2024, TTCICL served its amended application. On June 19, 2024, the Attorney General served a notice of appearance and advised that they would be taking the position that the error of law alleged in the amended application should not be heard in the application, but instead must be brought in a parallel statutory appeal. TTCICL formed an intention to dispute the decision based on an error of law within the 30 days but used the wrong process: they filed an application for judicial review.
15TTCICL now seeks to exercise its right of statutory appeal concurrent with its application for judicial review. The grounds of appeal mimic the grounds for judicial review. In their notice of appeal TTCICL submits that the LAT applied the wrong test for insufficiency of reasons. The Respondents have had notice of this ground since the application was issued in March 2024 and therefore will not suffer prejudice.
16The length of the delay is approximately 3 months, which in this case, is not substantial or determinative of the motion. I accept that with the release of Yatar, there was some ambiguity on how to proceed. Once the mistake in procedure was highlighted to them by the Attorney General, TTCICL moved quickly in bringing their appeal.
17On the issue of the merits of the appeal, I cannot say on the record before me that there are no merits to the appeal.
18Ultimately, it is the justice of the case that favours extending the time for TTCICL to issue the appeal. The delay was not significant. The parties had notice of the issues within the 30-day time period. There is no real prejudice to the parties. There is not objection to the order being sought.
19I agree with TTCICL, the most efficient use of judicial resources would be to have the matters heard together.
Intervenor Status
20LAT issued two decisions, one dated October 4, 2023, and the other dated February 16, 2024. LAT will be participating in the application as a right. They are seeking intervenor status in the appeal.
21The Supreme Court of Canada has recognized the useful role tribunals may play on review of their own decisions. Courts determining tribunal standing are required to “balance the need for fully informed adjudication against the importance of maintaining tribunal impartiality”: Ontario Energy Board v. Ontario Power Generation Inc., 2015 SCC 44 at paras. 52-57. Courts routinely hear submissions from tribunals on the scope of the right of appeal, the applicable standard of review, and their jurisdiction to make orders.
22If granted leave to intervene on the appeal, LAT advises that they will not take a position on the merits of its decision or the outcome of the appeal, rather it will provide the court with submissions on the background of LAT and its role, the statutory framework and reconsideration process, the limitation of the appeal on questions of law, the availability and appropriateness of judicial review and the applicable standards of review.
23Given LAT’s participation in the application, adding them as intervenors to the appeal will not cause undue delay or prejudice to the parties.
24There is no objection to the order being sought.
Order
25Order to go as follows:
a. The TTCICL is granted an extension of time to appeal to the Divisional Court from the reconsideration decision, dated February 16, 2024. The appeal shall be issued, served and filed within 10 business days of release of this decision. b. The application for judicial review and the appeal shall be heard together. c. LAT and the Attorney General are granted intervenor status in the appeal. They may each serve and file a single factum on both the application and the appeal, not exceeding 20 pages, excluding scheduled, by January 20, 2025, and present oral argument for up to 15 minutes. d. LAT submissions shall be restricted to the following issues: i. Background on the LAT and its role; ii. The statutory framework and the reconsideration process; iii. The limitation of the appeal to questions of law; iv. The availability and appropriateness of judicial review; and v. The applicable standards of review. e. The LAT shall not seek costs nor shall costs be awarded against it. f. No costs of the motion.
Shore J.
Date: September 25, 2024