Volume. 9 Issue. 14 – April 23, 2025
Court Reverses Tribunal’s Unreasonable Adjournment Refusal
This week the court addresses a situation in which the Tribunal refused to allow for an adjournment on a CAT case, despite neither counsel being available on the dates that the Tribunal ultimately unilaterally imposed. The court was very clear that the Tribunal had acted entirely unreasonably and ordered that a new date be secured that allowed for both parties to participate.
Virtual Training – New Sessions Added!
Secure your seat for inHEALTH’s 2025 upcoming Virtual Training session!
- SABS Expedited: May 5-9, 2025
*Eligible Participants receive 9 Substantive – CPD hours upon course completion
Course details & register here +
One Size Doesn’t Fit All – In AIG Insurance v Riddell, the court took the unusual step of reviewing an interlocutory order of an administrative tribunal, in this case, an order denying an adjournment request. The court noted that “the orderly processing of administrative decision making would be prejudiced if this court was to start micro-managing scheduling issues”. However, in the matter at hand, the court was “satisfied that there are exceptional circumstances and that this court should intervene to grant a stay of the impugned scheduling order.”
The court firstly noted that “the impugned decision appears to treat scheduling challenges on a “one size fits all” basis, even though the caseload before the tribunal varies widely in length, complexity, and materiality to the parties. This was a complex case, as discussed below. The tribunal’s reasons denying an adjournment give little or no weight to the nature and complexity of this case, the legitimate competing obligations of counsel, or the prejudice to the parties if the adjournment was not granted.” Secondly, it was found that “although the impugned decision states correct principles, it fails to identify and weigh the legitimate interests of the parties and fails to balance those interests with the institutional concerns that grounded the decision. Institutional concerns matter but they should not overwhelm the legitimate interests of the parties.” Finally, “the impugned decision is obviously wrong and unfair. These problems, together, constitute exceptional circumstances justifying judicial review of this interlocutory decision.”
It was noted that following a case conference in May 2024, the Tribunal ordered that Ms. Riddell’s application proceed to a seven day in-person hearing. In June 2024, the LAT provided the parties with a list of possible hearing dates. None were available for both sides and their witnesses (including many expert medical witnesses). Counsel asked the LAT to provide alternative possible dates. The LAT declined to provide additional dates, and instead scheduled the hearing for seven days starting on November 12, 2024, dates on which neither side was available. AIG then moved for an adjournment of the hearing and proposed mutually available dates in May 2025. The LAT denied the adjournment on August 30, 2024. AIG sought reconsideration, but this was denied by the LAT on October 2, 2024 on the basis that reconsideration is not available for an order that does not “finally dispose of an appeal.” As a result, the case remained scheduled for hearing starting November 12, 2024.”
Get Your Stats Report!
inHEALTH’s Statistical Reports provide insights and analysis on the outcomes of Licence Appeal Tribunal (LAT) and court decisions.
Customize success rate reports on any variable relating to disputed AB claims captured in LAT and court decisions!
Decisions By Top 10 Insurers
*Sample Chart
Statistical Report fees are based on the complexity of your data request
Learn More & Get a Quote Here >
Accordingly, AIG was obliged to apply for judicial review and moved for an interlocutory stay of the LAT proceedings pending hearing of the application for judicial review in this court. The stay motion came on before Davies J. on October 31, 2024. Davies J. directed that the motion be adjourned to an expedited hearing before a panel of this court: 2024 ONSC 6033. The panel hearing was held on November 7, 2024. At the conclusion of the hearing this court granted the motion, stayed the order below directing that the hearing commence on November 12, 2024, and directed the LAT to schedule the hearing for seven days in May 2025.
The court noted that for this matter, “a more probing inquiry of the merits is required, both as to whether there are exceptional circumstances justifying review of an interlocutory decision, and in respect to the merits of the impugned interlocutory decision. I have applied the more stringent “strong prima facie case” test to both aspects of the merits analysis. The threshold for establishing exceptional circumstances is high. Nonetheless, I am satisfied that the circumstances of this case are exceptional.”
The court began by noting that Riddell’s case was “among the most serious and complex of cases on the LAT’s docket: a contested claim of catastrophic impairment, which arises from the notorious van attack in Toronto in April 2018.” Secondly, the Tribunal “knew that neither counsel for Ms. Riddell nor counsel for AIG were available for all the November hearing dates before those dates were set. The correspondence shows that despite knowing that counsel were not available, the LAT went ahead and scheduled the hearing at that time.” The court found it “evident that the LAT denial of the adjournment was unfair and reflected an error in principle. The LAT’s reasons denying the adjournment focus on the undesirability of further delays. The reasons give little or no weight to the nature and complexity of this case, the competing obligations of counsel, or the prejudice to the parties if the adjournment was not granted.”
The Tribunal had suggested that the parties had numerous alternatives available to an adjournment. However, it was determined by the court that these “were not reasonable alternatives in the circumstances. It was not reasonable to suggest that the parties retain new counsel for this matter.” Further, it was “not reasonable to suggest that a multi-day hearing with eight experts could, or should, proceed as an in-writing hearing: such a suggestion is inconsistent with both common sense and the LAT’s initial assessment that the case requires a seven-day hearing. Third, suggesting that the parties settle the matter in order to resolve a scheduling conflict is not reasonable. Fourth, the proposal that Ms. Riddell withdraw and re-file her complaint, subject to a tolling agreement, is unreasonable: this would result, in effect, in the requested adjournment, or a longer one, but would yield no other benefit other than burnishing the LAT’s “time out” statistics artificially. This suggests that LAT’s priority was not the timely adjudication of this application despite the LAT’s finding that granting an adjournment of 6 to 8 months would be unreasonable.”
Noting that the goal for the Tribunal was in facilitating a fair, expeditious process for all cases, large and small, straightforward and complex, however “achieving this goal requires more flexibility, and bearing in mind the interests of the parties, and not just the institutional concerns of the tribunal.” The court concluded that “the denial of an adjournment was unfair and unreasonable. Therefore, I conclude that AIG has established a strong prima facie case for exceptional circumstances to review an interlocutory decision, and a strong prima facie case that the impugned decision is wrong and unfair.” The Tribunal suggested that “the parties have not suffered irreparable harm because there was still an opportunity for them to request an adjournment at the start of the hearing. I do not accept that argument.“ The court, however, noted that the options provided earlier by the Tribunal, while ultimately unreasonable, did not include a further adjournment request at the outset of the hearing. The court was “not prepared to conclude that the adjudicator would have come to a different conclusion if the adjournment request had been repeated at the outset of the hearing.”
Therefore, the court “set aside the November hearing dates, and direct the LAT to schedule the hearing on dates available to the parties in May 2025. The LAT confirmed during oral argument that it would be able to schedule the hearing at that time, if so directed. This is a decision on the motion for a stay. Technically, it does not decide the application. However, this decision may have the effect of rendering the underlying application moot in a practical sense. I would direct the application to a Divisional Court case management judge to canvass the parties’ position on the future of the application, and to manage any further process in this court as may be required.”
Access inHEALTH’s research resources through Live Chat and receive your OAR. Get It now!