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Availability Of Judicial Review In SABS Disputes – Trials & Appeals & Compensation



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The Court of Appeal’s decision in Yatar v. TD Insurance Meloche
Monnex
, 2022 ONCA 446,

provides guidance on how judicial review should be dealt with
when a statutory right to appeal also exists. It also reinforces
the importance of limitation periods and ensuring claims are
commenced in a timely matter in the SABS context.

Background

The appellant, Ms. Yatar, was injured in a motor vehicle
accident on February 7, 2010 and brought a claim for statutory
accident benefits under the Statutory Accident Benefits
Scheme.
The insurer rejected her claim, and her benefits were
terminated.

The appellant applied for mediation at the Financial Services
Commission of Ontario (FSCO) to dispute the insurer’s
decision which took place between June 18, 2013, and January 14,
2014, following which she filed a Notice of Action and Statement of
Claim in 2016. That action was dismissed on consent in 2017.

A year later, in March 2018, the appellant commenced an
application before the Licence Appeal Tribunal. The
Tribunal’s adjudicator found that the claim was
statute-barred as it was commenced more than two years after the
insurer’s denial of benefits. The appellant requested a
reconsideration, but the adjudicator confirmed the original
decision.

Ms. Yatar both appealed the decision and brought an application
for judicial review to the Divisional Court.

Judicial History

Adjudicator’s Decision

The adjudicator found that the appellant’s claims for IRBs
and housekeeping and home maintenance were statute-barred as per
section 281.1 (1) of the Insurance Act and s. 51 of the
former SABs. The applicable limitation period had expired in April
2014.

The adjudicator found that a dispute resolution form was
attached to a letter TD Insurance sent the appellant on January 7,
2011. The appellant was required to initiate a dispute regarding
denial of benefits within two years of this date, but Ms. Yatar did
not file her application to dispute the denial of benefits until
March 2018 – more than seven years after.

Additionally, the appellant had requested and attended mediation
in 2012 which concluded with a mediator’s report in 2014 This
mediation had extended the limitation period providing the
appellant an additional 90 days from the date of the
mediator’s report to challenge the result. Therefore, the
adjudicator concluded that the appellant had missed the limitation
period.

In seeking a reconsideration of the decision, the appellant
argued that the adjudicator made errors. However, the adjudicator
dismissed the request for reconsideration relying on the letters
from TD in its assessment.  While a dispute resolution form
was not attached to two of TD’s letters, it had been attached
to one of January 7, 2011.

The adjudicator concluded that the appellant was aware of the
adjudication process satisfying the requirement for a valid denial
as per Smith v Co-operators General Insurance Co. 2002 SCC
30.  The adjudicator reiterated that mediation provided an
extension and was not utilized by the appellant.

Divisional Court Decision

With respect to the appeal, the Divisional Court concluded that
the appellant had not identified any issue of law and that only a
question of law was permitted on an appeal1. The
Divisional Court concluded that the issues the appellant attempted
to raise regarding the Tribunal’s decision were either
questions of fact or questions of mixed fact and law. Since the
appellant did not demonstrate an error of law, the appeal was
dismissed.

The Divisional Court noted that, in regards to judicial review,
it is a discretionary remedy that is only available in
“exceptional circumstances” since a statutory right of
appeal exists. In the present case, the Divisional Court found that
exceptional circumstances were not present.  

Issues on Appeal

The two questions on appeal were whether the Divisional Court
erred in limiting judicial review in cases where there has been a
statutory appeal from a Tribunal decision about 
SABS
to “exceptional circumstances”
and whether the Tribunal’s reconsideration decision was
reasonable.

Court of Appeal Decision

The Court of Appeal began by outlining the pre-2016 law.
Previously, disputes regarding an insured’s SABS entitlements
were resolved in accordance with sections 280 – 283 of the
Insurance Act and the SABS.

The FSCO was the administrative body involved in SABS dispute
resolution and mediation. After a failed mediation, parties were
able to choose between starting an action in a court to determine
the SABS or proceeding to arbitration through the FSCO or private
arbitration. The limitation period began two years from the
insurer’s refusal to pay the benefit, but if the parties
pursued mediation, the Insurance Act and SABS extended the
limitation period to 90 days after the mediator’s report.

On April 1, 2016, there was the elimination of FSCO mandatory
mediations, court actions and FSCO’s role in arbitrations.
The Insurance Act was amended to provide the Licence
Appeal Tribunal with exclusive jurisdiction at first instance over
the resolution of disputes in respect of an insured persons SABS
entitlements.

The License Appeal Tribunal Act, 1999 was also amended
to add s. 11(6) which states that “an appeal from a decision
of the Tribunal relating to a matter under the Insurance
Act”
may only be made on a question of law only”.
The Tribunal also adopted its Rules of Practice and Procedure,
which limited internal reconsideration of Tribunal decisions.

Exceptional Circumstances

The Court of Appeal did not agree with the Divisional
Court’s use of the phrase “exceptional
circumstances” in determining whether the Court should
exercise its discretion to consider a judicial review application
where there has also been a statutory appeal.

However, the Court of Appeal held that the Divisional Court was
correct in concluding that the existence of an adequate alternative
remedy was a valid reason to not exercise discretion to hear a
judicial review application and was in line with the
legislature’s amendments which restricted resort to the
courts for the determination of such disputes.

The Court of Appeal highlighted 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.”

In addition, the Court of Appeal found that the appellant did
not present evidence that the adjudicator’s decision was
unreasonable.

Procedure for Concurrent Appeal and Judicial
Review

The Court of Appeal provided guidance on how judicial review
should be dealt with when there is also a statutory right to
appeal. It stated that:

  1. First, if a party intends to utilize both their right of appeal
    and their right to seek judicial review, then those proceedings
    must be brought together. Put simply, a party cannot first exercise
    their right of appeal and then, if unsuccessful, bring a judicial
    review application. 

  2. Second, once both proceedings are commenced, a motion must be
    brought for the two proceedings to be heard together with a single
    appeal book/application record and factum covering both
    proceedings.

Conclusion

This decision shows that, in SABS disputes, an application for
judicial review will rarely be successful. There is a statutory
right of appeal on questions of law only. The legislature intended
to greatly restrict resort to the courts in SABS disputes.

Footnote

1 : 
Licence Appeal Tribunal Act, 1999

, S.O. 1999, c. 12, Sched. G, s. 11(6)

The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.



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