Simon's Legal Resources

JR - SOR - Reasonableness - Examining Legal Precedents (2)

. Mendowegan v. Definity Insurance Company

In Mendowegan v. Definity Insurance Company (Div Ct, 2026) the Divisional Court dismissed a LAT SABS appeal, this brought against a decision finding the appellant "was statute-barred [SS: this term is used to mean limitation-barred] from proceeding with an application for statutory accident benefits (“SABs”)".

The court considered a same-level administrative ruling for it's potential role in stare decisis [see esp para 30], and - in deciding this - points to tribunal policy directives as a method of ensuring consistency:

[19] In the case at bar, the adjudicator did not mention Shaver [SS: 'Shaver v. Onlia, 2023 ONLAT 22-009102'] in her decision, and accordingly she did not distinguish that authority, nor otherwise explain why an arguably analogous case produced a result contrary to the conclusion she ultimately reached. The appellant argues that the failure to consider Shaver constitutes an error of law.

[20] In his reconsideration decision, Vice-Chair Moore found that the adjudicator had applied the correct legal test, and that the manner in which she weighed the evidence did not constitute an error of fact or law. He noted that the adjudicator considered both subjective and objective factors in her analysis. He agreed with the appellant that the adjudicator “should have addressed Shaver in its decision”, but the requesting party must both show that an error occurred and that the error would likely have impacted on the outcome. He found that the appellant had not pointed him to any legal principle that was missed in the adjudicator’s decision.

....

[23] In the case at bar, it is conceded that the adjudicator applied the correct six-part legal test when determining whether the appellant had provided a reasonable explanation for failing to notify the respondent of her involvement in the accident within the requisite time period. The appellant’s complaint is that, when applying that test to the evidence before her, the adjudicator failed to approach the case in a similar manner to Shaver, in that she failed to give sufficient weight to the fact that the appellant was unsophisticated, and that she “failed to correctly balance” the prejudice to the insurer for having lost the opportunity to medically assess the appellant in a timely manner as against the hardship to the appellant in having her claim for accident benefits barred. I find that these are not questions of law, they are questions of mixed fact and law. They constitute the application of the correct legal standard to the facts of the case.

....

[25] While questions of mixed fact and law are reviewable on an application for judicial review (on a standard of reasonableness), no such application has been brought. Thus, this appeal must fail unless the appellant can demonstrate an error of law.

[26] Given that Shaver was the one and only legal authority relied upon by the appellant in her submissions, I agree that it would have been preferable had the adjudicator expressly discussed it in her reasons, and provided an explanation as to why an arguably similar fact situation there led to the opposite result arrived at by the adjudicator. However, counsel for the appellant candidly concedes that he is unable to provide any authority for the proposition that the failure to expressly discuss a particular precedent in reasons for decision amounts to an error of law.

[27] In CNH Canada Ltd. v. Chesterman Farm Equipment Ltd., 2018 ONCA 637, at para. 87, the Court of Appeal made it clear that “an alleged inconsistency with another decision of the tribunal is not reason for this court to intervene”.

[28] The appellant relies on Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 to argue that those affected by administrative decisions are entitled to expect that like cases will generally be treated alike. At para. 129, Wagner C.J.C. said the following in that regard:

Administrative decision makers are not bound by their previous decisions in the same sense that courts are bound by stare decisis. As this Court noted in Domtar, “a lack of unanimity is the price to pay for the decision-making freedom and independence” given to administrative decision makers, and the mere fact that some conflict exists among an administrative body’s decisions does not threaten the rule of law: p. 800. Nevertheless, administrative decision makers and reviewing courts alike must be concerned with the general consistency of administrative decisions. Those affected by administrative decisions are entitled to expect that like cases will generally be treated alike and that outcomes will not depend merely on the identity of the individual decision maker — expectations that do not evaporate simply because the parties are not before a judge.

[29] However, Wagner C.J.C. went on, at paras 130-131, to describe how and when any inconsistency in established internal decisions might be addressed:

Fortunately, administrative bodies generally have a range of resources at their disposal to address these types of concerns. Access to past reasons and summaries of past reasons enables multiple individual decision makers within a single organization (such as administrative tribunal members) to learn from each other’s work, and contributes to a harmonized decision-making culture. Institutions also routinely rely on standards, policy directives and internal legal opinions to encourage greater uniformity and guide the work of frontline decision makers. This Court has also held that plenary meetings of a tribunal’s members can be an effective tool to “foster coherence” and “avoid ... conflicting results”: I.W.A., Local 2-69 v. Consolidated Bathurst Packaging Ltd., 1990 CanLII 132 (SCC), [1990] 1 S.C.R. 282 (S.C.C.), at pp. 324-28. Where disagreement arises within an administrative body about how to appropriately resolve a given issue, that institution may also develop strategies to address that divergence internally and on its own initiative. Of course, consistency can also be encouraged through less formal methods, such as the development of training materials, checklists and templates for the purpose of streamlining and strengthening institutional best practices, provided that these methods do not operate to fetter decision making.

Whether a particular decision is consistent with the administrative body’s past decisions is also a constraint that the reviewing court should consider when determining whether an administrative decision is reasonable. Where a decision maker does depart from longstanding practices or established internal authority, it bears the justificatory burden of explaining that departure in its reasons. If the decision maker does not satisfy this burden, the decision will be unreasonable. In this sense, the legitimate expectations of the parties help to determine both whether reasons are required and what those reasons must explain: Baker, at para. 26. We repeat that this does not mean administrative decision makers are bound by internal precedent in the same manner as courts. Rather, it means that a decision that departs from longstanding practices or established internal decisions will be reasonable if that departure is justified, thereby reducing the risk of arbitrariness, which would undermine public confidence in administrative decision makers and in the justice system as a whole.

[30] These passages reaffirm the longstanding principle that administrative tribunals are not bound by prior tribunal decisions, in the same way that courts are bound by stare decisis. Some conflict among an administrative body’s decisions, such as that which arguably exists between the decision under review and Shaver, does not threaten the rule of law. One can conclude from this that the failure of a tribunal to follow a prior decision does not amount to an error of law. In contrast, the failure of a court of law to follow binding precedent could well amount to an error of law.

[31] Wagner C.J.C. outlines a number of strategies for encouraging coherence in administrative decision-making, such as policy directives, training, and similar measures. The only role for the courts in such an exercise is outlined in para. 131. Where a decision-maker departs from longstanding practices or established internal authority, a court may conclude that the decision is unreasonable, absent reasons from the tribunal that explain and justify that departure. This could only occur on an application for judicial review, where the decision, as a whole, is reviewable on a standard of reasonableness.

[32] The case before this court is not an application for judicial review but is, instead, an appeal on a question of law only. Nowhere does Wagner C.J.C. state that a departure from established internal authority constitutes an error of law.

[33] Furthermore, there is nothing before the court to indicate that the decision of the adjudicator constitutes a departure from longstanding internal authority, nor that Shaver is representative of any longstanding internal authority. Instead, one may well conclude that Shaver is an outlier. KH v. Northbridge General Insurance Company, 2019 CanLii 101613 (ON LAT) is a decision which concluded that the applicant had failed to provide a reasonable explanation for late notice, and was cited by the adjudicator in her decision. KH had been cited on CanLii by the LAT 126 times as of the date of the respondent’s factum. By contrast, Shaver had been cited only 6 times, and each time was distinguished.