Robinson v. AIG Insurance, 2023 ONSC 1317

Full Decision

Robinson v. AIG Insurance[1] involves an appeal and judicial review before the Divisional Court, regarding a decision made by the Licence Appeal Tribunal (LAT).  The LAT’s initial decision was dated May 4, 2022, and the reconsideration decision is dated August 3, 2022. The two LAT decisions involve the appellant’s entitlement to attendant care benefits. The appellant was involved in a motor vehicle collision in March 2019, and was subsequently determined to be catastrophically impaired under the Statutory Accident Benefits Schedule (the SABS). 

The LAT initially determined that the appellant was not entitled to attendant care benefits from May 15, 2019, onwards, beyond those benefits which were already paid by the respondent insurer. This decision was confirmed by the same adjudicator on reconsideration.  The appellant sought for both decisions to be set aside, and a rehearing before a different adjudicator. The appellant also sought an emergency hearing to consider entitlement to attendant care benefits on an interim basis.

The appellant took the position that the adjudicator’s conclusions were unreasonable, and also alleged a reasonable apprehension of bias. The allegation of bias was supported by statistical analysis of the adjudicator’s previous LAT decisions, and also that the adjudicator made unreasonable adverse rulings against the appellant in the two subject decisions, and other procedural motions.

The Divisional Court notes that under the Licence Appeal Tribunal Act, the Divisional Court has jurisdiction to hear an appeal from a LAT decision, but only on a question of law.  The respondent took the position that the appellant’s challenges regarding the LAT’s decisions relate to the application of the facts to the applicable legal test, or are challenges to the sufficiency or weight of evidence supporting findings of fact which do not give rise to questions of law. The Divisional Court agreed with the respondent’s position, and notes that in these subject cases, the court has no jurisdiction to interfere with the Tribunal’s decisions.[2]

The Divisional Court further determines there is no sufficient basis to establish a reasonable apprehension of bias, on the part of the adjudicator.  The court notes there is a general presumption in favour of impartiality, regarding an adjudicative decision maker. Moreover, statistical analysis of previous decisions is not sufficient to establish bias, and an adjudicator’s findings against a party’s interest is not sufficient to substantiate bias.[3] 

The Divisional Court dismisses the applicant’s appeal.  The court additionally notes that the Divisional Court does have discretion to consider a judicial review application related to a LAT decision, which is subject to appeal before the Divisional Court.[4]  However this discretion should only be exercised in rare instances, where there is something unusual about the case to warrant use of this discretionary remedy of judicial review.[5]  The court agrees with the respondent that the LAT’s decisions, in the present case, is not one of such rare instances.

[1] Robinson v. AIG Insurance, 2023 ONSC 1317 [Robinson].

[2] Ibid, at para 5.  See Yatar v. TD Meloche Monnex, 2021 ONSC 2507 and 2022 ONCA 446.

[3] Ibid, at para 6.  See Warren v. Licence Appeal Tribunal, 2022 ONSC 3741 (Div. Ct.), at para 40.

[4] See Yatar v. TD Insurance Meloche Monnex, 2022 ONCA 446, at para 42.

[5] Supra, note 1 at para 8.

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