



COURT OF APPEAL FOR ONTARIO

CITATION: Yatar v. TD Insurance Meloche
    Monnex, 2022 ONCA 173

DATE: 20220228

DOCKET: M53036, M53066 & M53084 (C69874)

Strathy
    C.J.O. (Motions Judge)

BETWEEN

Ummugulsum
    Yatar

Applicant (Appellant)

and

TD Insurance
    Meloche Monnex

Respondent (Respondent)

and

Licence
    Appeal Tribunal

Respondent (Respondent)

Jillian Van
    Allen, for the appellant

Derek R.
    Greenside, for the respondent TD Insurance Meloche Monnex

Valerie
    Crystal and Trevor Guy, for the respondent Licence Appeal Tribunal

Nabila F.
    Qureshi and Anu Bakshi, for the proposed intervener Income Security Advocacy
    Centre (M53036)

Fabio Longo
    and Gerry Antman, for the proposed intervener Ontario Trial Lawyers Association
    (M53066)

Ryan Hardy,
    for the proposed intervener Advocacy Centre for Tenants Ontario (M53084)

Christopher
    P. Thompson, for the intervener the Attorney General of Ontario

Heard: January 12, 2022 by video conference

ENDORSEMENT

[1]

This proceeding is an appeal, with leave of this
    court, from the decision of the Divisional Court in
Yatar v. TD Insurance
    Meloche Monnex
, 2021 ONSC 2507. The moving parties seek leave to intervene
    in the appeal.

[2]

The Attorney General of Ontario has requested,
    and I have granted, leave to intervene pursuant to s. 9(4) of the
Judicial
    Review Procedure Act
, R.S.O. 1990, c. J.1. Pursuant to that provision, the
    Attorney General is entitled to be heard as of right on an application for
    judicial review.

[3]

On January 12, 2022, I granted leave to
    intervene to Advocacy Centre for Tenants Ontario (ACTO) and dismissed a motion
    for leave to intervene by Ontario Trial Lawyers Association (OTLA). I reserved
    my decision on a motion for leave to intervene by Income Security Advocacy
    Centre (ISAC) and subsequently advised counsel that ISACs motion would be
    granted. My dispositions indicated that reasons would follow, and these are my
    reasons.

[4]

The underlying proceeding is a claim by Ms.
    Yatar for statutory accident benefits under the
Statutory Accident Benefits
    Schedule  Accidents on or After November 1, 1996
, O. Reg. 403/96 (
SABS
).
    Her claim was rejected by the insurer and her benefits were terminated. After a
    failed mediation, she brought her claim before a Licence Appeal Tribunal
    (LAT) adjudicator. The adjudicator found that Ms. Yatars claim was
    time-barred. The same adjudicator dismissed her request for reconsideration.

[5]

Ms. Yatar appealed to the Divisional Court. She
    also brought an application for judicial review. As the Divisional Court
    explained, it has jurisdiction to hear a statutory appeal on a question of law
    under s. 11(6) of the
Licence Appeal Tribunal Act, 1999,
S.O. 1999, c.
    12, Sch. G. Section 280(3) of the
Insurance Act,
R.S.O. 1990, c. I.8
    and s. 2(1) of the
Judicial Review Procedure Act
preserve the right of
    judicial review, notwithstanding any right of appeal.

[6]

The Divisional Court dismissed Ms. Yatars
    appeal, finding that there was no error of law. The Divisional Court also
    dismissed the application for judicial review. It noted that judicial review is
    a discretionary remedy and it set out certain factors that it had considered in
    deciding whether to exercise its discretion to hear a judicial review of an
    application from a LAT
SABS
decision where there is no error of law.
    Having considered those factors, and taking them into consideration, the
    Divisional Court concluded, at para. 46:

Taking all the above factors into
    consideration, I conclude that
judicial review of a LAT
    SABS decision is only available, if at all, in exceptional circumstances
.
    There are no exceptional circumstances here that would lead me to exercise my
    discretion to judicially review the questions of fact and mixed fact and law
    raised by the applicant in her judicial review application. [Emphasis added.]

[7]

The proposed interventions focus primarily on the
    Divisional Courts observation that in cases where there is a limited statutory
    right of appeal, judicial review is only available, if at all, in exceptional
    circumstances.

[8]

I will summarize the basis on which the moving
    parties propose to intervene.

[9]

ACTO is a legal clinic, devoted to advocacy in a
    number of forums concerning housing issues. It is concerned about the impact of
    the Divisional Courts decision on the ability of tenants to seek judicial review
    in the face of a limited right of appeal on a question of law under s. 210 of
    the
Residential Tenancies Act, 2006
, S.O. 2006, c. 17. It submits that
    the Divisional Courts decision is inconsistent with the Supreme Courts
    guidance in
Canada (Minister of Citizenship and Immigration) v. Vavilov
,
    2019 SCC 65, 441 D.L.R. (4th) 1, which it says created space for concurrent or
    alternative judicial reviews for matters subject to a statutory right of appeal.

[10]

ISAC, like ACTO, is a specialized legal clinic.
    It focuses on advocacy related to income security, with an emphasis on social
    assistance and other government programs aimed at addressing poverty. Unlike
    ACTO, whose clients are generally seeking to
retain
a benefit, ISACs clients are generally
seeking
a
    benefit, such as social assistance or income support. Much of ISACs work takes
    place in administrative tribunals, such as the Social Benefits Tribunal. Its
    interest in the issue on appeal is because social benefits legislation
    generally contains a limited statutory right of appeal. If granted leave to
    intervene, its submissions will focus on two issues: the interpretation of
    statutory rights of appeal in the context of remedial legislation; and the
    impact on social assistance recipients of restricting judicial review to
    exceptional circumstances in the face of limited appeal rights.

[11]

OTLA is involved in advocacy on behalf of accident
    victims, among others. It submits it has specialized knowledge and experience
    with accident benefits legislation and litigating accident benefit disputes on
    behalf of injured Ontarians. Although OTLA set out a number of proposed
    arguments in its factum, in oral argument it limited its proposed submissions
    to three: (1) the LAT adjudicator made a legal error in failing to properly
    apply the legal principles in s. 33 of the
SABS
; (2) the LATs
    decision that the appellants claim was time-barred was an error of law and
    inconsistent with this courts decision in
Tomec v. Economical Mutual
    Insurance Company
, 2019 ONCA 882, 148 O.R. (3d) 438, leave to appeal
    refused, [2020] S.C.C.A. No. 7; and (3) the impact of the LAT decision for
    motor vehicle accident victims.

[12]

In granting leave to intervene, the court looks
    at the nature of the case, the issues that arise and the likelihood that the
    proposed intervener will be able to make a useful contribution to the
    resolution of the appeal without injustice to the immediate parties. Part of that
    assessment examines the experience and perspective the proposed intervener
    would bring to the table at the hearing of the appeal. The court also looks to
    whether granting leave to intervene would cause hardship or prejudice to the
    parties to the appeal. One concern, particularly in a case like this, which at
    its core is a civil dispute, is to ensure that the intervener(s) do not
    overwhelm the appeal, or pile on one of the parties.

[13]

In this case, there can be no serious dispute
    that each of ACTO, ISAC and OTLA is qualified to act as an intervener in a case
    of this kind. They are all well-recognized organizations, with special
    expertise and an identifiable interest in the subject-matter of these
    proceedings. They each have a strong track record as interveners in important
    cases. And they would bring to the appeal a somewhat broader perspective that
    is distinct from the immediate parties.

[14]

In resisting the motions for leave to intervene,
    the respondent on the appeal submits that this is primarily a private dispute,
    involving issues that are of importance only to the parties on the appeal, and
    that leave to intervene should not be granted. I do not accept that submission.

[15]

The issue raised on the appeal  the scope of
    judicial review in the context of a statutory right of appeal  is an important
    question of law that has implications well beyond the immediate parties to the
    appeal. This case, therefore, is well along the continuum between
    constitutional litigation on the one end, and a purely private dispute at the
    other end. The implications of the decision to other statutory schemes make
    this the kind of case in which the court would benefit from the perspectives
    offered by interveners.

[16]

I was satisfied that both ACTO and ISAC would
    bring a unique perspective to the appeal  a perspective that differs from the
    appellants but is not inconsistent with it. They would be able to assist the
    court in its appreciation of the implications of the decision of the Divisional
    Court in other contexts where there is a limited statutory right of appeal.

[17]

I concluded, however, that OTLAs submissions
    were largely duplicative of the submissions of the appellant on the appeal. The
    appellant is represented by counsel experienced in personal injury and accident
    benefits litigation, who is well equipped to address the issues on the appeal.
    Moreover, OTLAs submissions go directly to the merits of the appeal, something
    that should generally be left to the parties themselves.
Finally,
    in light of my decision to grant leave to intervene to both ACTO and ISAC, I
    have concluded that granting leave to intervene to a third intervener would be
    unfair to the respondent in this case and unnecessary for the assistance of the
    court.

[18]

The motions of ACTO and ISAC were granted on the
    usual terms. OTLAs motion is dismissed, without costs.

G.R.
    Strathy C.J.O.


