When an Umpire renders a decision under s. 519 of the Insurance Act, RSA 2000, c I-3, his or her decision is subject to judicial review by a Justice of the Court of Queen's Bench. The grounds for judicial review for such decisions include the following:
- the Umpire declined, exceeded, or otherwise failed to properly exercise jurisdiction under the Act;
- the decision was incorrect or unreasonable;
- there were errors in law in coming to the conclusion that the Umpire reached;
- the provisions in the Act were incorrectly or unreasonably interpreted and applied;
- there was reasonable apprehension of bias on the part of the Umpire made; and/or
- there was a breach of natural justice or procedural fairness.
Either the insured or the insurer can judicially review a decision of an Umpire.
The decision appealed from should be a final decision of an Umpire. Generally, interim or procedural decisions are not judicially reviewable, although there are some exceptions, such as jurisdiction or reasonable apprehension of bias. If an applicant seeks judicial review based on a biased Umpire, he has a duty to object to the Umpire at the time that he determines that there is bias, and not take his chances on the merits before the Umpire and then later seek judicial review. Any decision over the course of the process before the Umpire that the party disagrees with, however, should be objected to at the time. While the interim or procedural decisions are not necessarily judicially reviewable, the objections can assist with a judicial review on the basis of a breach of natural justice or procedural fairness.
The rules for Judicial Review are found in Part 3: Court Actions, Subdivision 2 of the Alberta Rules of Court, Alta Reg 124/2010. Judicial review is done by way of an Originating Application.
The application for judicial review to set aside a decision of the Umpire must be filed and served within six months after the date of the decision. The court cannot extend time for the filing of a judicial review application. An application for judicial review must be served on the Umpire, the Minister of Justice and Solicitor General, and every person or body directly affected by the application.
When an application for judicial review is filed, the applicant must also serve on the Umpire a notice requiring the Umpire to send the record of proceedings, which consists of all of the records upon which the decision sought to be set aside is based, to the clerk court clerk named in the notice directly. The notice is in a standard court form, Form 8. The scope of relevance for what the decision-maker should send is very broad, and includes "anything relevant to the decision or act in the possession of the person or body". If the record the Umpire sends is deficient, the court can order the Umpire to provide further documents or a better explanation as to why the documents are missing or to take any other action that the court considers appropriate. Practically speaking, however, where a record is deficient and the Applicant has possession of the missing information, they can put it in by way of affidavit.
Judicial review is generally on the record only. Only in exceptional circumstances and at the leave of the court are there is or any discovery or oral evidence. If either the Applicant or the Respondent seeks to put forward additional evidence, it must fall within narrow restrictions, as generally there should be no facts that were not before the Umpire before the court. The case law says that the record can be supplemented by affidavits to show bias or breach of natural justice. Where the record is inadequate, affidavit evidence of what transpired is also admissible. As well, where the record filed by the Umpire is incomplete, the record can be supplemented by affidavit evidence. The affidavit evidence must be filed at least 30 days in advance of the judicial review.
An Applicant should closely review the Umpire's record of proceedings to determine whether there is anything missing or not responsive to the grounds set out in the application for judicial review. If the Umpire's record of proceedings is deficient, the Applicant should put forward an affidavit with the relevant documents attached. An Applicant alleging reasonable apprehension of bias or breach of natural justice should put forward an affidavit and evidence supporting those allegations, unless the record is clear that there were unfair procedural errors or processes or that the Umpire was biased towards the other party. Rarely would all the information required to support these allegations be clear on the record, so generally additional affidavit evidence will be required. As with all affidavits, they would be subject to cross-examination.
Originating Applications are usually set for special chambers, where the parties are required to submit briefs in advance and argue in front of a Justice for a set period of time, which can range from a half day or several days depending on the complexity of the issues.
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This article is intended to be an overview and is for informational purposes only.