Valerie Cohl Crystal

This appeal concerns the interpretation of Ontario's Statutory Accident Benefits Schedules regarding attendant care benefits (ACBs) for a catastrophically injured individual.

The key issues were whether an applicant for ACBs must demonstrate "urgency, impossibility, or impracticability" to claim retroactive benefits under s. 42(5) of the 2010 Schedule, and whether the definition of "incurred" from s. 3(7)(e) of the 2010 Schedule applies to claims arising from accidents predating its enactment (specifically, the 1996 Schedule).

The Court of Appeal found that s. 42(5) relates to the timing of payment, not eligibility, and does not impose a "urgency" test for retroactive claims.

It further held that the definition of "incurred" in the 2010 Schedule does not apply to claims governed by the 1996 Schedule, based on a careful reading of the transitional provisions.

The appeal was allowed, entitling the applicant to retroactive ACBs without substantiation under the 2010 Schedule's "incurred" definition.

The appellant contested the denial of statutory accident benefits following a 2010 automobile accident, bringing simultaneous proceedings before the Divisional Court by way of statutory appeal on questions of law and judicial review on questions of fact and mixed fact and law.

The courts below held that, where there is a limited statutory right of appeal, judicial review should only be exercised in exceptional or rare cases.

The Supreme Court of Canada held this was an error: a circumscribed statutory right of appeal on questions of law does not restrict the availability of judicial review on questions of fact or mixed fact and law, and the Strickland framework does not support imposing a heightened threshold for judicial review in such circumstances.

The Court further found that the LAT adjudicator's reconsideration decision was unreasonable because he failed to consider the effect of the reinstatement of income replacement benefits on the validity of the initial denial and failed to have regard to relevant tribunal jurisprudence on the point.

The appeal was allowed and the matter remitted to the LAT adjudicator for reconsideration.

The appellant sought judicial review and appealed a decision of the Licence Appeal Tribunal (LAT) which found her accident benefits claim statute-barred.

The Divisional Court dismissed both, stating judicial review was only available in "exceptional circumstances" given the statutory appeal right.

The Court of Appeal dismissed the further appeal, clarifying that while judicial review is always available, it is a discretionary remedy and will only be exercised in rare cases where alternative remedies (like reconsideration and statutory appeal) are inadequate.

The Court affirmed the LAT's finding on the limitation period as reasonable and provided guidance on handling concurrent appeal and judicial review proceedings.

This endorsement addresses motions for leave to intervene in an appeal concerning the scope of judicial review when a limited statutory right of appeal exists.

The Court of Appeal for Ontario granted leave to intervene to the Advocacy Centre for Tenants Ontario (ACTO) and the Income Security Advocacy Centre (ISAC), finding they offered unique perspectives on the implications of the Divisional Court's decision for other statutory schemes.

The motion for leave to intervene by the Ontario Trial Lawyers Association (OTLA) was dismissed as its submissions were largely duplicative of the appellant's and granting a third intervener would be unfair to the respondent.

The Licence Appeal Tribunal sought leave to intervene in an appeal launched by Birani Homes Limited against a decision directing Tarion Warranty Corporation to pay $300,000 for home foundation and wall replacement.

Birani opposed the intervention, citing concerns about duplication of submissions, lack of unique expertise, and potential prejudice, particularly regarding a reasonable apprehension of bias.

Tarion consented to the intervention.

The court granted the Tribunal intervenor status, limiting its participation to issues concerning the standard of review, the Tribunal's jurisdiction under the Ontario New Home Warranties Plan Act (ONHWPA) regarding year-end and major structural defect claims, and its Rules of Practice and Procedure on adding parties and disclosure.

Intervention on the issue of reasonable apprehension of bias was denied to prevent the Tribunal from appearing to defend its own decision.