Volume. 6 Issue. 27 – July 13, 2022

This week we examine two decisions of the Divisional Court. providing technical guidance for those contending with AB disputes. In ‘No Breach of Procedural Fairness,’ the Court confirms that the practice of adjudicators reconsidering their own decisions is common amongst all tribunals and in no way violates natural justice or procedural fairness.

Next, in ‘Court Does Not Have Jurisdiction’, the Court confirms there to be no jurisdiction to hear appeals of interlocutory matters, despite earlier cases having been decided to the contrary.

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No Breach of Procedural Fairness

No Breach of Procedural Fairness – The Court, in Warren v. Licence Appeal Tribunal, was asked on appeal whether having an adjudicator reconsider his or her own decision violates the common law rules of natural justice and procedural fairness, including the rule against bias. Warren argued “that she was denied procedural fairness when the adjudicator reconsidered his own decision. Procedural fairness requires that a decision be made free of a reasonable apprehension of bias by an impartial decision-maker.” The Court though confirmed an earlier decision in the human rights regulatory context that “it is not a breach of procedural fairness, and does not raise a reasonable apprehension of bias, where a tribunal member reconsiders his or her own decisions.”

Reference as well was made to the Landlord and Tenant Board (LTB), wherein it was noted that the LTB was “required to adopt the most expeditious method of determining the questions arising in a proceeding that affords to all parties an adequate opportunity to know and address the issues being heard.” In fact, the “practice of members reconsidering their own decisions is a familiar feature in the administrative law landscape.” Further, “having members reconsider their own decisions contributes to the goal of efficiency and expeditiousness since the adjudicators know the file and are therefore best placed to assess the issues raised in a reconsideration request.”

Reconsideration under the LAT rules “is not a hearing de novo or an appeal: it is a corrective mechanism which allows an adjudicator to correct overriding errors or fundamental evidentiary concerns.” Warren also sought to argue for the first time that that “the LAT is institutionally biased toward insurers.” While not determining this issue as it ought to have been raised earlier, nonetheless the Court found there to be no “probative evidence on the issue of institutional bias.” Warren relied upon statistics in making this argument, however it was confirmed that the Court had earlier “rejected an attempt to use statistics to show an apprehension of bias on an individual basis… Generally, without expert evidence, statistics alone cannot establish reasonable apprehension of bias.”

Court Does Not Have Jurisdiction

Court Does Not Have Jurisdiction – In Penney v Co-operators, the Court addressed an appeal of a Tribunal decision wherein Penney’s motion to remove the Respondent’s lawyer of record due to a perceived conflict of interest had been denied. Whereas this was confirmed as an interlocutory decision, Penney relied upon a prior Divisional Court decision, The Personal Insurance Company v. Jia, in which it was noted that “This court will not ordinarily hear an appeal from interlocutory decisions of LAT, unless the consequences of the decision cannot be rectified on appeal from a final decision. We would exercise our discretion to hear an appeal from the conflict decision, because it is evasive of appeal and it is potentially a matter of general practice important in proceedings before LAT.”

The Court in the within matter referenced recent decisions of the Court endorsing the finding that “while there is normally no right to appeal an interlocutory decision of the LAT, the Court has discretion to hear an interlocutory appeal.” However here, the Court found rather that “with respect to my colleagues who sat on these cases, it appears to me that they have imported principles applying in judicial review applications to the interpretation of the appeal provision in the LAT Act. I would not follow them, as I believe they erred in failing to give effect to the wording of s. 11(1) and the longstanding jurisprudence, and they have not justified their approach in departing from the language and jurisprudence.”

The Court further noted that “it is important to draw a distinction between appeals and judicial reviews. …an appeal is a creature of statute, and the appellate body’s jurisdiction is limited by the legislation. Judicial review, in contrast, is a common law remedy. Relief is discretionary, and the courts have developed a doctrine of prematurity whereby they refuse to review interlocutory decisions of administrative tribunals unless there are exceptional circumstances.” Reference was made to Security National v. Kumar, which held that “the “court does, at least on occasion, hear appeals from tribunals on specific preliminary issues that do not constitute final determination on the merits.” However it was noted that Kumar relied upon three prior cases, all of which were applications for judicial review of FSCO, not Appeals to the Divisional Court.

Ultimately the Court declined to follow Jia. It was held that “the panel in that case did not engage with the clear language of s. 11 of the Act and the longstanding jurisprudence holding that this Court does not have jurisdiction to hear an appeal of an interlocutory decision or order absent clear statutory language. In my view, Roosma, Stockfish and similar cases in other regulatory regimes remain good law. Section 11 does not confer a discretion on the Court to hear interlocutory appeals.” Therefore, “given the language of s. 11(1) and (6) of the LAT Act, read in the context of the entire statute and the objective of preventing fragmentation of and delay in administrative proceedings, I conclude that this Court has no jurisdiction to hear an appeal from an interlocutory decision of the LAT.”

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