Appeal and Judicial review of tribunal’s decision denying benefits and extension of reconsideration denied by the Court

Appellant appeals a tribunal decision denying income replacements benefits and refusing to extend the time for reconsideration. The Court dismissed the appeal and judicial review holding that the tribunal did not make any reviewable errors. The tribunal was entitled to control the process with respect to the examination of witnesses and applied the proper “complete inability” test to pursue employment.

Administrative law – Decisions reviewed – Licence Appeal Tribunal – Judicial review – Bias – Procedural requirements and fairness – Standard of review – Reasonableness – Correctness

Kumar v. Aviva General Insurance Co., [2024] O.J. No. 4781, Ontario Superior Court of Justice, October 28, 2024, H.E. Sachs, J.R. McCarthy and F.L. Myers JJ.

The appellant was injured as a passenger in a transit bus and as a result of his injuries, sought income replacement benefits (“IRBs”) from his insurer pursuant to a benefits schedule. The IRBS were paid to the appellant for a period of time until examinations were conducted by the insurer under the benefits schedule. The appellant disputed the termination by applying to the Licence Appeal Tribunal (“LAT”).

The LAT determined that the appellant was not entitled to continuing IRBs (the “Decision”). The appellant filed a notice of motion requesting that the LAT extend the timeframe for him to file a reconsideration request. The motion was denied. The appellant brought a second motion seeking an extension but was denied. The appellant then filed a request for reconsideration of the Decision. The LAT denied the request stating that it was improper to seek an extension of time through a reconsideration request after his motions seeking the same relief were twice denied. The appellant appealed and sought judicial review of the Decision arguing that the LAT erred in law and that the Decision was unreasonable.

The Court held that with respect to statutory appeals, appellate standards of review apply. The standard of review on questions of law is correctness, and the standard of review for questions of procedural fairness in the context of a statutory appeal is correctness. The Court further commented that the presumptive standard of review for all questions on a judicial review application is reasonableness.

The Court denied the appeal, finding that there was no error of law on the part of the LAT; the decision was reasonable, and there was no basis for finding any reasonable apprehension of bias. The Court held the LAT adjudicator was entitled to control the process with respect to the examinations of witnesses, and the adjudicator applied the proper “complete inability” test to pursue employment in the context of the evidence presented at the hearing.

With respect to the application for judicial review, the Court held the decision was a reasonable one, and that none of the appellant’s arguments rise to the level of showing the exceptional circumstances required to set aside a tribunals’ findings of act.

This case was digested by Eric Mo of Harper Grey LLP and first published in the LexisNexis® Harper Grey Administrative Law Netletter and the Harper Grey Administrative Law Newsletter. If you would like to discuss this case further, please feel free to contact him directly at [email protected].