Tipping v. Coseco Insurance Company, 2021 ONSC 5295 (Div. Ct.)

Full Decision

Divisional Court Weighs in on Judicial Review vs Judicial Appeals of LAT Decisions

The Applicant, Tipping, sought judicial review of a Licence Appeal Tribunal decision and reconsideration barring him from proceeding with an appeal to the LAT due to his failure to attend insurer examinations for catastrophic impairment. The issue before the Divisional Court was whether the Applicant could proceed to judicial review given he had not exhausted his right to appeal.

The background of this claim resulted from a 2015 motor vehicle collision. The Applicant was a passenger in a vehicle struck at high speeds on a highway. At the time of the collision, he was a paramedic and sustained a traumatic brain injury. He went on to apply for catastrophic impairment determination. As part of the IE CAT assessments, he was required to attend a psychiatric and neuropsychological assessment. The Applicant attended the psychiatric assessment but disputed having to attend the neuropsychological assessment.

The Respondent, Coseco brought a preliminary issue before the LAT on the issue whether the Applicant was statute barred from proceeding with his CAT dispute before the LAT, due to his non-attendance at the neuropsychological assessment. The Tribunal agreed that he was statute barred given the Applicant’s reasons for non-attendance at the IE were implausible and devoid of merit.

Following the LAT’s decision, the Applicant’s lawyer requested the Adjudicator recuse himself on the basis of reasonable apprehension of bias. The letter to the LAT also stated this was not a reconsideration request. The LAT however, considered it to be a reconsideration request and denied the Applicant’s request for reconsideration through the original Adjudicator.

And so commenced the application for judicial review before the Divisional Court. The Divisional Court stated that judicial review is a discretionary remedy which is not available where there is an adequate alternative remedy. Referencing an earlier decision, Yatar v. TD Insurance, 2021 ONSC 2507, the Divisional Court stated that judicial review of a LAT decision is only available in exceptional circumstances given that statutory right of appeal exists on questions of law.

In this case, there were no exceptional circumstances that would allow for judicial review given the core issue was whether the Applicant should participate in IE CAT assessments. This was a question of mixed fact and law which was not an exceptional circumstance. The Court also referenced the Supreme Court’s decision in Vavilov which held that a reasonableness standard of review applies on applications for judicial review, which is a high bar, and this case did not lend itself to such a standard.

Ultimately, the Court noted that the procedure for following the LAT’s rules of procedure for requesting reconsideration should have been followed, and were not. There was no procedural unfairness or reasonable apprehension of bias in this case.

The takeaway from this case is that judicial review of LAT decisions is only available in exceptional circumstances given there is a statutory right of appeal under the Licence Appeal Tribunal Act.

Written by

Called to the bar in 2009 and having successfully passed the Ontario, Michigan and US multistate bar exams, Samia M. Alam is a contract lawyer for plaintiff personal injury law firms in the Hamilton and surrounding areas with a special focus on catastrophic impairment claims. She also has been teaching at Mohawk College since the inception of the paralegal program in 2014 and teaches Legal Research and Writing, Statutory Accident Benefits and Tribunals Practice and Procedure. She is received her LL.M at Osgoode Hall Law School, and she is a member of the Hamilton Law Association and Ontario Trial Lawyer's Association.