



COURT OF APPEAL FOR ONTARIO

CITATION: Tomec v. Economical Mutual Insurance Company, 2019
    ONCA 839

DATE: 20191011

DOCKET: M50782 (C66763)

Trotter J.A. (Motion
    Judge)

BETWEEN

Sotira Tomec

Responding Party (Appellant)

and

Economical Mutual Insurance Company

Responding Party (Respondent)

and

Steven Soares

Moving Party/Proposed Intervener

Cynthia Kuehl, for the moving party

Joseph Cescon, for the appellant

Lisa Armstrong and Shalini Thomas, for the responding
    party

Heard: September 16, 2019

REASONS FOR DECISION


Introduction

[1]

Sotira Tomec was seriously injured in a motor vehicle accident. She
    commenced an action against the respondent in relation to her entitlement to
    statutory accident benefits. The Divisional Court dismissed her judicial review
    application: 2018 ONSC 5664. She obtained leave to appeal to this court. Her
    appeal is scheduled to be heard on October 16, 2019.

[2]

Steven Soares was also seriously injured in a motor vehicle accident.
    His claim was also refused. He has commenced an appeal to the Divisional Court,
    which has yet to be heard.

[3]

Mr. Soares submits that the issue in his case is very similar, if not
    identical, to the issue raised in Ms. Tomecs appeal. In order to protect his litigation
    interests, he wishes to have his case heard at the same time. The problem is
    that his case is not pending before this court. Mr. Soares proposes to
    participate in one of two ways: (1) by having this court reconstitute itself as
    a panel of the Divisional Court and hear his appeal immediately after Ms. Tomecs
    appeal; or (2) by being granted leave to intervene as a party.

[4]

Ms. Tomec does not oppose the motion brought by Mr. Soares. The
    respondent, Economical Mutual Insurance Company (Economical), does.

[5]

At the end of the oral hearing, I dismissed both claims for relief, with
    reasons to follow. These are my reasons.

Factual Background

[6]

It is not necessary to go into great detail about the facts of the Tomec
    and Soares cases. Both were seriously injured in car accidents. Both received
    attendant care and
housekeeping benefits from
    their insurer, Economical:
Insurance Act
, R.S.O. 1990, c. I.8;
Statutory Accident Benefits Schedule 
    Accidents on or after November 1, 1996
, O. Reg. 403/96
. Both Ms.
    Tomec and Mr. Soares were notified in writing that 104 weeks was the maximum
    period of entitlement to
such benefits unless you have been determined
    to have sustained Catastrophic Impairment as defined by the Statutory Accident
    Benefits Schedule. An insured faces a two-year limitation period to dispute
    the refusal of SABS benefits.

[7]

In the case of Ms. Tomec, her medical condition slowly deteriorated over
    five years. A medical expert found her to be catastrophically impaired. She
    then sought attendant care and housekeeping services on an ongoing basis.
    Economical denied her claim on the basis that it was statute-barred. The
    Licence Appeal Tribunal (LAT) agreed that the limitation period had expired.
    The Divisional Court upheld the LATs decision.

[8]

Mr. Soares arguably stands in a similar position. In the aftermath of
    his accident, Mr. Soares was found not to be catastrophically impaired. However,
    his condition continued to deteriorate. Roughly five years after the accident,
    Economical advised Mr. Soares that he had been designated as catastrophically
    impaired. He began to receive benefits again. However, Economical stopped paying
    benefits to Mr. Soares on the basis that his claim was statute-barred because he
    failed to dispute the initial refusal within the two-year limitation period.
    The LAT agreed. Mr. Soares has filed an appeal of this decision to the
    Divisional Court under s. 11(6) of the
Licence Appeal Tribunal Act
,
    1999
, S.O. 1990, c. 12, Sched. G, which provides a statutory route of
    appeal on a question of law. I was advised by the parties that the appeal has
    been perfected, but not yet heard.

[9]

As noted, Ms. Tomecs appeal will be heard on October 16, 2019.  On
    September 12, 2019, Hoy A.C.J.O. granted intervener status to the Ontario Trial
    Lawyers Association (OTLA) as a friend of the court, pursuant to r. 13.02 of
    the
Rules of Civil Procedure
, R.R.O. 1990, Reg. 194.

Reconstituting as the Divisional Court

[10]

The
    first part of the claim for relief is that the appeals be heard at the same
    time, or one immediately after the other. This type of consolidation may be
    ordered under r. 6.01 of the
Rules of Civil Procedure
, which provides:

6.01(1)
Where two or more proceedings are pending in the
    court
and it appears to the court that,

(a) they have a question of law or fact in common;

(b) the relief claimed in them
    arises out of the same transaction or occurrence or series of transactions or
    occurrences; or

(c) for any other reason an order
    ought to be made under this rule,

the court
may order that,

(d) the proceedings be
    consolidated, or heard at the same time or one immediately after the other.
    [Emphasis added.]

Mr. Soares also relies on s. 138 of the
Courts of
    Justice Act
, R.S.O. 1990, c. C. 43 (
CJA
), which states: As far
    as possible, multiplicity of legal proceedings shall be avoided.

[11]

The
    underscored words in r. 6.01, above, highlight the problem with this motion.
    The rule applies to proceedings that are in the same court, not in different
    courts.

[12]

Mr.
    Soaress proposed solution is to have this court reconstitute itself as a panel
    of the Divisional Court. This may be achieved through the combined operation of
    ss. 13 and 18 of the
CJA
. Section 18(2) provides that the Divisional
    Court consists of the Chief Justice of the Superior Court of Justice, who is
    president of the Divisional Court, the associate chief justice
and such
    other judges as the Chief Justice designates from time to time
. Every judge
    of the Superior Court is also a judge of the Divisional Court: s. 18(3).

[13]

Section
    13(1) of the
CJA
permits the Chief Justice of Ontario, with the
    concurrence of the Chief Justice of the Superior Court, to perform the work of
    a Superior Court judge. By virtue of his or her office, a judge of the Court of
    Appeal has all the jurisdiction, power and authority of a Superior Court
    judge: s. 13(2). Indeed, when appointed, judges of the Court of Appeal are also
    appointed judges,
ex officio
, of the Superior Court, and vice versa.

[14]

The
    combined effect of these provisions enables three judges of the Court of Appeal
    to sit as a panel of the Divisional Court with the consent of the Chief Justice
    of the Superior Court of Justice. However, this court rarely reconstitutes
    itself as the Divisional Court. It typically occurs with the consent of all
    parties: see e.g.,
Wall v. Shaw
, 2018 ONCA 929, 28 C.P.C. (8th) 351,
    at para. 3. There must also be compelling reasons to do so. In
Villa Verde
    L.M. Masonry Ltd. v. Pier One Masonry Inc
.
(2001), 54 O.R. (3d) 76
    (C.A.), at para. 12, Rosenberg J.A. explained the circumstances in which this
    might be done: It is an option that is generally only resorted to where the
    jurisdictional issue is noticed after the appeal has been argued and is done to
    save the parties the expense and inconvenience of having to reargue the appeal.

[15]

The
    application brought on behalf of Mr. Soares is not a reaction to a newly
    discovered jurisdictional defect. This is not a situation in which an appeal
    was erroneously brought in this court when it should have launched in the
    Divisional Court. Here, there has been no mistake; instead, Mr. Soares wishes
    to bypass a level of court in order to consolidate his appeal with Ms. Tomecs
    appeal. He argues that this process of reconstitution and consolidation will be
    more efficient and avoid inconsistent outcomes.

[16]

While
    it may be more efficient to have the appeals heard together, this alone is not
    a sufficient reason to grant the relief requested. If this court were to
    reconstitute as the Divisional Court, for all intents and purposes, it would
    involve bypassing the Divisional Court. The Divisional Court is an important pillar
    of Ontarios court structure, with a rich jurisprudence in administrative law.
    Allowing Mr. Soares to bypass the Divisional Court would deprive the Court of
    Appeal of the benefit of a considered judgment from that court. For these
    reasons, it is undesirable to bypass the Divisional Court absent compelling reasons
    for doing so. Here, there are none.

[17]

Moreover,
    there is nothing unique about multiple cases with the same or similar issues
    traveling through the system at the same time, but at different levels of court.
    This, in itself, does not beget inconsistent judgments. To the extent that the
    issues in the Tomec and Soares cases are the same, the Divisional Court would
    be bound by the legal determinations made by this court, thereby avoiding
    inconsistent findings. Moreover, as counsel for Economical submits, there are
    many, many cases in the system that involve the same or similar issues as the
    one raised in Ms. Tomecs appeal. Each will have to move through the
    established appeal/judicial review process in due course.

[18]

Consequently,
    there is no basis to have this court reconstitute itself as the Divisional
    Court in these circumstances. Even if it could be done, consolidating the
    proceedings would result in Ms. Tomecs appeal being adjourned due to the lack
    of additional court time available on October 16, 2019. Although Ms. Tomec does
    not oppose an adjournment, Economical does. An adjournment would be unwarranted
    in the circumstances.

Intervention as a Party

[19]

In
    the alternative, Mr. Soares seeks to intervene as a party in Ms. Tomecs
    appeal. The power to grant intervention status as an added party is found in r.
    13.03 of the
Rules of Civil Procedure
. Rule 13.03(2) provides that
    leave to intervene in the Court of Appeal may be granted by a panel of the
    court, the Chief Justice or Associate Chief Justice of Ontario or a judge
    designated by either of them. I have been designated by the Associate Chief
    Justice of Ontario to decide this motion.

[20]

Mr.
    Soaress arguments for this form of relief mirror those in support of his
    request that this court reconstitute itself as the Divisional Court. Again, the
    impact of such an order would be to effectively bypass the Divisional Court for
    the sake of convenience. Moreover, granting leave to intervene as a party would
    result in an expansion of the record and would derail the October 16, 2019
    hearing date.

Conclusion

[21]

The
    application is dismissed. As no party sought costs, no order will be made.

Gary Trotter
    J.A.


