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LAT - Rules. AIG Insurance Company v. Riddell
In AIG Insurance Company v. Riddell (Ont Divisional Ct, 2025) the Divisional Court allows an insurer's JR of a denied adjournment request, here applying a prematurity doctrine exception.
Here the court considers (and grants) a stay of (and re-scheduling for) the date for a LAT hearing, this on RJR stay grounds:This Motion
[8] The general test for a stay is an application of the three-part test in RJR-MacDonald Inc. v. Canada (Attorney General, 1994 CanLII 117 (SCC), [1994] 1 SCR 311 at 334 (see also: Kitmitto et al. v. Ontario Securities Commission, 2023 ONSC 1739, para. 5):(1) whether there is a serious issue to be determined on the judicial review application;
(2) whether AIG will suffer irreparable harm if the stay is not granted; and
(3) whether the balance of convenience favours granting or denying the stay. [9] The first branch of the test is a relatively low threshold in most situations, but in the case of an application for judicial review of an interlocutory order, the moving party faces a substantial burden to satisfy the court that there are exceptional circumstances that would justify hearing a premature application. Further, as observed by Davies J. at the first return of this motion, decision on the stay motion will have the effect of deciding the application itself or rendering it practically moot. As stated by the Supreme Court of Canada in RJR Macdonald:Two exceptions apply to the general rule that a judge should not engage in an extensive review of the merits. The first arises when the result of the interlocutory motion will in effect amount to a final determination of the action. [10] In this case, a more probing inquiry of the merits is required, both as to whether there are exceptional circumstances justifying review of an interlocutory decision, and in respect to the merits of the impugned interlocutory decision. I have applied the more stringent “strong prima facie case” test to both aspects of the merits analysis.
Strong Prima Facie Case
[11] Interlocutory decisions of an administrative tribunal are not ordinarily judicially reviewed; absent exceptional circumstances, applications for judicial review should not be brought until the end of the tribunal proceedings: College of Veterinarians of Ontario v. Mitelman, 2015 ONSC 484 (Div. Ct.), at para. 5, Gill v. College of Physicians and Surgeons, 2021 ONSC 7549 at para. 31 (Div. Ct.).
[12] The threshold for establishing exceptional circumstances is high. Nonetheless, I am satisfied that the circumstances of this case are exceptional.
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[16] The LAT has the authority to control its own process: Statutory Powers Procedure Act, RSO 1990, c. S.22, s. 25.0.1. And the LAT’s procedural orders are afforded significance deference on review. Nonetheless, it is evident that the LAT denial of the adjournment was unfair and reflected an error in principle.
[17] Rule 16.3 of the Licence Appeal Tribunal Rules sets out 17 factors the LAT may consider when deciding whether to grant an adjournment request:a. The age of the file;
b. Whether any previous adjournments have been granted and, if so, whether they were granted on a peremptory basis;
c. Prejudice to the parties;
d. Whether the request is on consent;
e. The type of event the adjournment is being requested for;
f. The length of notice that the Tribunal has provided to the parties of the event;
g. The timeliness of the request;
h. Whether the parties were given the opportunity to canvass their availability;
i. The specific reasons for being unable to proceed on the scheduled date;
j. Whether the parties can proceed on an earlier date;
k. Whether the reason for the adjournment was foreseeable and avoidable, and what efforts, if any, were made to avoid the reason for the adjournment;
l. The length of the requested adjournment and whether it would unduly delay the proceedings;
m. Broader institutional and public interests;
n. Legislative requirements;
o. The principles of natural justice and fairness;
p. Operational considerations; and
q. Any other factors considered relevant in deciding the request. [18] The LAT’s reasons denying the adjournment focus on the undesirability of further delays. The reasons give little or no weight to the nature and complexity of this case, the competing obligations of counsel, or the prejudice to the parties if the adjournment was not granted.
[19] The LAT, in its decision, found that the parties had numerous alternatives available to an adjournment. These were not reasonable alternatives in the circumstances. It was not reasonable to suggest that the parties retain new counsel for this matter. While that could be a reasonable suggestion in some cases, this is a complex case involving senior experienced counsel. Replacing counsel should be a last resort in such a case. Second, it is not reasonable to suggest that a multi-day hearing with eight experts could, or should, proceed as an in-writing hearing: such a suggestion is inconsistent with both common sense and the LAT’s initial assessment that the case requires a seven-day hearing. Third, suggesting that the parties settle the matter in order to resolve a scheduling conflict is not reasonable. Fourth, the proposal that Ms. Riddell withdraw and re-file her complaint, subject to a tolling agreement, is unreasonable: this would result, in effect, in the requested adjournment, or a longer one, but would yield no other benefit other than burnishing the LAT’s “time out” statistics artificially. This suggests that LAT’s priority was not the timely adjudication of this application despite the LAT’s finding that granting an adjournment of 6 to 8 months would be unreasonable.
[20] The approach taken by the LAT in this case might be reasonable in a different case, with less at stake, simpler issues, and a shorter hearing. However, “one size does not fit all:” the goal is a fair, expeditious process for all cases, large and small, straightforward and complex. Achieving this goal requires more flexibility, and bearing in mind the interests of the parties, and not just the institutional concerns of the tribunal. I conclude that, in the circumstances of this case, the denial of an adjournment was unfair and unreasonable. Therefore, I conclude that AIG has established a strong prima facie case for exceptional circumstances to review an interlocutory decision, and a strong prima facie case that the impugned decision is wrong and unfair.
Irreparable Harm
[21] The LAT argued that the parties have not suffered irreparable harm because there is still an opportunity for them to request an adjournment at the start of the hearing. I do not accept that argument. The options available to the parties, as described by the LAT, are unreasonable, as I have explained. Those options did not include a further adjournment request at the outset of the hearing. In light of the reasons given by the Vice Chair on the adjournment request, I am not prepared to conclude that the adjudicator would have come to a different conclusion if the adjournment request had been repeated at the outset of the hearing.
Balance of Convenience
[22] I see nothing “convenient” about putting the parties to the alternatives to the November hearing dates stated by the LAT. The balance in this case heavily favours staying the impugned order.
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