) ) AVIVA CANADA INC. Applicant – v. –, 2017 ONSC 2661

CITATION : Aviva Canada Inc. v. Taylor, 2017 ONSC 2661 DIVISIONAL COURT FILE NO.: 169/17 DATE: 20170427 ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT BETWEEN: ) ) AVIVA CANADA INC. Applicant – and – JAKE TAYLOR Respondent ) ) ) ) ) ) ) ) )) Marni E. Miller , for the Applicant R. Tally Vanounou , for the Respondent Benson Cowan and Trevor Guy for the Licence Appeal Tribunal ) ) HEARD at Toronto: April 27, 2017 KITELEY J. ( Orally ) [ 1 ] In 2016, the legislature transferred jurisdiction under the Insurance Act dealing with statutory accident benefits to the Licence Appeal Tribunal .

Counsel for the Tribunal confirms that there is another case before the Divisional Court in which an unopposed order was made that the Tribunal would participate on the issue of standard of review but this appears to be the first judicia l review application that has reached this stage since the Licence Appeal Tribunal acquired the jurisdiction . [ 2 ] In this Application for Judicial Review, counsel for the applicant has brought this motion for an immediate order of prohibition under s. 4 of the Judicial Review Procedures Act (the “ JRPA ”) staying the Licence Appeal Tribunal proceeding number 16 - 00364/AABS pending judicial review of two decisions of the Licence Appeal Tribunal in which Aviva’s requests to adjourn a hearing on the determination of a legal issue were denied .

For the reasons that follow, the motion is dismissed. [ 3 ] On July 11, 2015, Jake Taylor, a young man in his twenties, was involved in an ATV crash that left him with severe injuries. On the basis of the information contained i n the OCF-1, Aviva began paying statutory accident benefits almost immediately. [ 4 ] Aviva sent a letter dated June 16, 2016 advising that the incident of July 11, 2015 may not have been an "automobile accident'' as defined in the schedule.

Aviva indicated i t would continue to adjust the claim but that ongoing payments of statutory accident benefits did not constitute a waiver of Aviva’s rights to deny coverage. [ 5 ] By letter dated October 21 , 2016, Aviva informed the respondent that it had completed its investigation and had determined that the respondent was not entitled to receive statutory accident benefit coverage in connection with the incident and confirmed that no further accident benefits would be considered. [ 6 ] On November 1 , 2016, counsel on behalf of Mr.

Taylor initiated a dispute resolution relating to the denial of statutory accident benefits through the Licence Appeal Tribunal. [ 7 ] The Tribunal scheduled a case conference for January 30, 2017. The case conference report by the adjudicator indicated that the five issues in dispute were ordered to a written hearing on March 15, 2017 with a timetable for filing written submissions. [ 8 ] Counsel for Mr. Taylor filed his submissions on February 20, 2017 as expected and those submissions included the affidavit of Lisa Stark sworn February 7, 2017 an affidavit that was largely on information and belief.

Counsel for Aviva takes the position that it was not contemplated that any evidence would be submitted but that the legal issue would be resolved on the basis of documentation and written submissions. [ 9 ] On March 1, 2017, Aviva requested that the hearing in writing scheduled for March 15, 2017 be adjourned. In the written request, Aviva asked that the Stark affidavit be withdrawn or that the Tribunal permit cross-examination on it. Counsel for Taylor opposed the adjournment.

[10] In letter dated March 8, 2017, the Case Management Officer informed both parties that she had been "directed to inform[them] that the Tribunal has considered the request and determined that the reasons provided are insufficient to grant the adjournment.The request is denied.” [11] On March 10, 2017, counsel for Aviva made another formal request to adjourn and counsel for Taylor opposed theadjournment request. [12] In a letter dated March 10, 2017 which differed from the March 8 letter only with respect to acknowledging Aviva's March 10request to adjourn, the Case Management Officer in the same language indicated that the request to adjourn was denied. [13] On April 7, 2017, counsel for Aviva issued this Notice of Application in which it seeks an order setting aside the denials ofadjournment communicated by the Case Management Officer and seeks an immediate order of prohibition staying the Licence AppealTribunal proceeding with the in-writing hearing and seeks an order of mandamus under s.2(1)(1) of the JRPA.

Counsel immediatelylaunched this stay motion. [14] This motion is opposed by counsel for Taylor. [15] The Tribunal is not a named respondent in the application for judicial review but has filed a responding motion record, factumand book of authorities. The Tribunal takes no position on the merits of the motion to stay.

It does take the position that the motion foran urgent order offends the general rule against judicial interference with ongoing administrative processes or, in other words, ispremature. [16] As indicated during submissions, I consider that the content of the identical letters dated March 8 and March 10 is “odd”. Neither has a signature. There is no indication what is meant by “the Tribunal”. Is it the Executive Chair? Is it the adjudicator whoconducted the case conference on January 30? Is it the adjudicator assigned to the in-writing hearing on March 15? Is it someone else? Is it the Case Management Officer?

There is no indication as to why the adjournment was not granted except that the detailed reasonscontained in the two written requests were “insufficient”. By making this observation about oddness, I am mindful that the need for andsufficiency of reasons is a relative issue and I do not hold that reasons were necessarily required. [17] I deal first with the motion to stay.

Counsel argues that it is a serious issue that Aviva was denied the right to know why theadjournment was refused, and because the adjournment was refused, Aviva argues that it was denied the right to know the case it isrequired to meet in the in-writing proceeding. [18] Counsel argues that Aviva will suffer irreparable harm because if the stay is not granted until the judicial review is heard, theTribunal will not have the comprehensive record it should have in order to make the important threshold decision as to whether Mr.Taylor was involved in an “automobile accident” and is therefore entitled to accident benefits.

Without the adjournment and the cross-examination, counsel argues that the Tribunal will not be able to make an informed decision on an important coverage issue, theconsequences of which could require Aviva to pay millions of dollars. Counsel also argues that the balance of convenience favoursAviva because, if ordered to resume making significant payments, those payments will likely not be recoverable should an appeal besuccessful. [19] I do not agree that the moving party has met any of the three RJR-MacDonald Inc. v.

Canada (Attorney General), (SCC), [1994] 1 S.C.R. 311 criteria, all of which are required before an order for stay is granted. Although the two identicalletters are “odd”, I do not agree that the content and the circumstances constitute a serious issue to be tried whether Aviva was deniedprocedural fairness and natural justice. On receipt of the Tribunal order following the determination of the legal issue, Aviva has a rightto an appeal on a question of law and if Aviva pursues the procedural fairness and natural justice issues, then they will likely be engagedin the appeal as a question of law.

I understand the concern about Aviva being required to pay pursuant to an order while it is underreview but if Aviva appeals the order, it will be stayed pending the appeal. There is no identified irreparable harm to Aviva. Counsel forTaylor did not file any responding affidavit so I do not know the extent to which Mr. Taylor was receiving funding. I do know from thematerial Aviva filed that he was seriously injured. He was considered catastrophically impaired and in the 14 months during whichAviva was providing benefits, the cost totaled approximately $150,000. From that I infer that Mr.

Taylor requires a high level of careand he has had no funding and no benefits since the letter in October, 2016. The balance of convenience clearly favours him in having ahearing on the threshold issues as soon as possible as to whether he was involved in an “automobile accident” and is entitled toresumption of benefits. [20] The motion for a stay is dismissed. [21] Counsel for the Tribunal and for Mr.

Taylor also took the position that the motion was premature and they agreed that Mr.Cowan would make the thrust of those submissions. [22] I agree that this motion for a stay of the Tribunal proceedings pending the outcome of the judicial review is premature. Itoffends the general rule against judicial non-interference with ongoing administrative processes. Volochay v. College of MassageTherapists of Ontario, 2012 ONCA 541.

The legislature has signaled an intention to have disputes such as this one dealt with in atribunal where the rules and procedures are intended to provide a dispute resolution mechanism that is efficient, fair and proportional. Itis important to afford the Tribunal an opportunity to do what the legislature directed it to do. At this stage, it cannot be known whetherthe denial of an adjournment twice does have impact on the ultimate decision.

For example, it cannot be known whether, whileconsidering the in-writing motion, the Tribunal directs the parties to provide further written submissions and/or evidence that mightencompass the challenges that Aviva wants to assert by cross-examination now. The consequences of the denial of adjournment areunknown. [23] Absent exceptional circumstances, parties to an administrative proceeding cannot engage the court system until theadministrative process has run its course.

Typically, concerns about procedural fairness and natural justice do not qualify as theexceptional circumstances necessary to warrant judicial intervention. Y.M. v. Commissioner Judith Beaman 2016 ONSC 7118; Canada(Border Services Agency) v. C.B. Powell Limited 2010 FCA 61.

[ 24 ] Counsel for Aviva argues that there is an exceptional circumstance in that the Licence Appeal Tribunal has recently acquired jurisdiction in these matter and if there are deficits in its procedure, it is essential that the procedures be corrected early on by judicial review so that the parties in this case and many others do not experience persistent denial of natural justice . [ 25 ] I disagree.

In my view, it is even more important when the Tribunal has so recently been given jurisdiction that it be given an opportunity to iron out wrinkles in procedural issues without an urgent stay motion . [ 26 ] One of the factors relevant to the prematurity analysis is whether Aviva has availed itself of alternate procedures. Counsel for Aviva acknowledges that she could have made a Request for Reconsideration pursuant to r ule 18 of the Tribunal rules. She deliberately did not do so because she was confident that having received two such denials, a request for reconsideration would have been a waste of time.

I disagree. In my view, this was an appropriate circumstance in which to ask the Executive Chair to weigh in on the denial of two requests for adjournment. Accordingly, I conclude that Aviva has not availed itself of alternate procedures. [ 27 ] I need not decide whether the court should decide the prematurity issue before deciding the stay motion. In this case, the outcome is the same. [ 28 ] In her factum, counsel for Taylor asks that the court today make an order dismissing the application for judicial review on the basis of the same prematurity submission made in connection with the stay motion.

I understand the request so that the judicial review application might be dealt with soon . However , her reque st was made in a factum not in a notice of motion and counsel for Aviva needs an opportunity to consider it, which will likely happen after receipt of this endorsement . [ 29 ] In conclusion, the motion for a stay is dismissed on the basis of a failure to establish grounds as set out in the RJR-MacDonald test and dismissed on the basis of prematurity. [ 30 ] I have endorsed the Motion Record as follows: “Motion by Aviva for a temporary stay of proceedings before the Licence Appeal Tribunal is dismissed.

Aviva to pay Taylor costs of $5,500 within 15 days. No costs to or by L.A.T.” ___________________________ KITELEY J. Date of Reasons for Judgment: April 27, 2017 Date of Release: April 28, 2017 CITATION : Aviva Canada Inc. v. Taylor, 2017 ONSC 2661 DIVISIONAL COURT FILE NO.: 169/17 DATE: 20170427 ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT BETWEEN:

AVIVA CANADA INC. Applicant – and – JAKE TAYLOR Respondent ORAL REASONS FOR JUDGMENT KITELEY J . Date of Reasons for Judgment: April 27, 2017 Date of Release: April 28, 2017