Deborah Joan McPhail

Two Ontario residents injured in separate accidents outside Ontario involving an all-terrain vehicle (ATV) and a dirt bike sought statutory accident benefits (SABs) under their Ontario automobile insurance policies.

Both insurers denied coverage, arguing that the definition of "automobile" under Ontario law should be determined by the law of the jurisdiction where the accidents occurred (lex loci delicti).

The Court of Appeal held that Ontario law applies to the interpretation of Ontario contracts and statutes, and that the definition of "automobile" in the Insurance Act and Off-Road Vehicles Act applies uniformly regardless of where the accident occurs.

Both vehicles qualified as automobiles under the extended definition because they would have required insurance if operated in Ontario under the Off-Road Vehicles Act.

The court allowed the appeal of the insured and dismissed the appeal of the insurer.

The applicant requested a hearing before the Financial Services Tribunal to challenge the Superintendent's refusal to order the Ontario Pension Board to transfer his pension to the federal Public Service Pension Plan and pay him the excess commuted value.

The applicant argued he was treated unfairly compared to plan members under age 55.

The Tribunal found it lacked jurisdiction to grant the requested relief, as neither the Superintendent nor the Tribunal has authority to compel the federal government or the Federal Plan to accept a pension transfer.

The Superintendent was ordered to carry out the Notice of Intended Decision.

The applicant requested a hearing before the Financial Services Tribunal after the Superintendent proposed to issue him an insurance agent licence with conditions, based on ongoing Law Society disciplinary proceedings.

At the hearing, the applicant sought to exclude the Law Society decisions from evidence and, alternatively, to adduce evidence challenging the underlying facts of those decisions.

The Tribunal admitted the Law Society decisions as relevant evidence and held that challenging their underlying facts would constitute an impermissible collateral attack.

Consequently, the Tribunal adjourned the proceeding sine die pending the outcome of the applicant's appeal before the Law Society Tribunal Appeal Division.

The moving party insurer sought to stay a FSCO Director's Delegate decision pending judicial review.

The underlying decision denied the insurer the right to recover approximately $10,000 in overpaid income replacement benefits resulting from the insured's retroactive receipt of CPP benefits.

The court granted the stay, applying the RJR-MacDonald test.

The court found a serious issue to be tried, that the insurer would suffer irreparable harm without a stay due to the insured's limited income, and that the balance of convenience favoured the insurer because the insured was already receiving her proper ongoing benefits.

The applicant sought judicial review of a Director's Delegate decision confirming an Arbitrator's finding that he was not catastrophically impaired following a motor vehicle accident.

The applicant argued the Arbitrator erred in law by relying on surveillance evidence, the applicant's presentation at the hearing, and a psychiatrist's report.

The Divisional Court dismissed the application, finding that the issues raised were questions of fact and the weighing of evidence, not errors of law, and that the Director's Delegate's decision was reasonable.

The Superintendent of Financial Services issued a Notice of Proposal to revoke the applicant's mortgage agent licence.

The applicant requested a hearing before the Financial Services Tribunal.

Before the hearing could take place, the applicant's licence expired without renewal.

The Tribunal issued a Notice of Intention to Dismiss the proceeding without a hearing on the basis of mootness, as it lacked jurisdiction to determine whether to revoke an expired licence.

Receiving no relevant submissions from the parties, the Tribunal dismissed the request for a hearing.

The Superintendent of Financial Services proposed an administrative monetary penalty of $4,000 against the applicant, a licensed life insurance agent, for failing to facilitate an examination into whether she had errors and omissions insurance and whether she conducted business while unlicensed.

The Superintendent withdrew the second allegation and sought a $2,000 penalty.

The Financial Services Tribunal found that the applicant failed to facilitate the examination by missing deadlines, providing inconsistent responses, and failing to provide the requested proof of insurance.

The Tribunal ordered the imposition of a $2,000 administrative monetary penalty.

The Superintendent of Financial Services issued a Notice of Proposal to impose a $20,000 administrative penalty on the applicant for acting as an insurance agent without a valid licence.

The applicant requested a hearing but subsequently failed to attend a scheduled pre-hearing teleconference.

The Tribunal issued a Notice of Intention to Dismiss the proceeding unless reasonable cause was shown.

The applicant failed to provide any submissions or explanation for his non-attendance.

Consequently, the Tribunal dismissed the proceeding without a hearing pursuant to Rule 35.02 of the Rules of Practice and Procedure.

The Applicant, a paralegal facing professional misconduct allegations from the Law Society, applied for an insurance agent licence.

The Superintendent issued a Notice of Proposal to issue the licence with conditions based on the Law Society proceedings.

The Applicant brought a motion seeking particulars of the evidence the Superintendent intended to rely on and an order that the Superintendent was statute-barred by the two-year limitation period under section 449 of the Insurance Act.

The Tribunal dismissed the motion, finding that the Superintendent had been transparent in relying on the Law Society proceeding as a whole, and that the limitation period applies only to prosecutions for offences, not to the issuance of licences.

The applicant, an Ontario resident, was injured in an ATV accident in British Columbia.

He applied for statutory accident benefits in Ontario.

The insurer denied the claim on the basis that the ATV was not an 'automobile' under the Statutory Accident Benefits Schedule because it was not required to be insured in British Columbia.

The applicant sought judicial review of the FSCO Director's Delegate's decision upholding the denial.

The Divisional Court dismissed the application, finding it was reasonable to apply British Columbia legislation to determine whether the ATV required insurance, and thus the ATV did not meet the definition of an automobile.

The Superintendent of Financial Services issued a Notice of Proposal to revoke the applicant's mortgage broker licence and impose administrative monetary penalties totalling $25,000.

The applicant requested a hearing before the Financial Services Tribunal.

The Tribunal found that the applicant contravened multiple requirements of the Mortgage Brokerages, Lenders and Administrators Act, 2006, including giving false information, dealing in mortgages outside his brokerage, receiving fees from clients directly, carrying on unlicensed mortgage lending through his own company, and putting his brokerages at risk of non-compliance.

The Tribunal also found the applicant made false statements on his licence renewal applications regarding his bankruptcy and complaint history.

Concluding that the applicant was no longer suitable to be licensed and that his conduct involved an intentional scheme to defraud vulnerable borrowers, the Tribunal ordered the revocation of his licence and the imposition of $25,000 in administrative penalties.

The applicant sought judicial review of an arbitrator's decision dismissing his claim for non-earner and housekeeping benefits under the Statutory Accident Benefits Schedule following a motor vehicle accident.

The applicant argued that the insurer's failure to promptly respond to his application created a deemed entitlement to benefits, and that the arbitrator erred in applying causation principles given his multiple accidents.

The Divisional Court dismissed the application, finding the arbitrator reasonably concluded that the insurer's delay did not create a deemed entitlement where the insured failed to prove entitlement.

The court also upheld the arbitrator's factual findings that the applicant failed to prove the accident caused his impairments or a complete inability to carry on a normal life, noting his condition was essentially unchanged from pre-existing injuries.

The applicants sought judicial review of a FSCO Director's Delegate decision that upheld an arbitrator's exclusion of the applicant's documents and witnesses due to late service, and ordered costs personally against the applicant's lawyers.

The Divisional Court dismissed the application, finding no denial of procedural fairness in the refusal to allow an affidavit explaining the delay or in the exclusion of non-expert witnesses.

The court also held that the order for costs against the lawyers personally was reasonable given the blatant disregard of the procedural rules.

The Superintendent of Financial Services brought a motion to adjourn a hearing regarding a Notice of Proposal to issue a conditional insurance agent licence to the applicant.

The Superintendent argued the hearing should be adjourned sine die until a pending Law Society disciplinary proceeding against the applicant, a licensed paralegal, was finalized.

The Tribunal dismissed the motion, finding that the uncertainty of the Law Society proceeding's outcome was no different than when the Notice of Proposal was originally issued, and that the issues regarding the applicant's suitability for a licence remained live and relevant.

The applicant insurer sought judicial review of a Director's Delegate's appeal decision regarding a catastrophic impairment determination under the Statutory Accident Benefits Schedule.

The Delegate had overturned an arbitrator's finding that combining impairment ratings for a physical brain injury and a separate psychological disorder constituted impermissible 'double counting'.

The Delegate also remitted the issue of medication impairment back to arbitration and upheld a 4% rating for scarring.

The Divisional Court applied the reasonableness standard of review and dismissed the application, finding the Delegate's interpretation of the AMA Guides and the Schedule fell within the range of acceptable outcomes.

The applicant insurer sought judicial review of a Director's Delegate decision which held that the respondent insured was entitled to interest at 2% per month on overdue statutory accident benefits.

The insured's accident occurred after the New Regulation (O. Reg. 34/10) came into effect, but her policy was issued before that date.

The Divisional Court found the Delegate's decision unreasonable, holding that the clear wording of the New Regulation applied to all accidents occurring on or after September 1, 2010, rebutting any presumption against interference with vested rights.

The application for judicial review was granted and the Delegate's decision was quashed.

The applicant sought judicial review of a decision by the Financial Services Tribunal denying his request to retroactively purchase membership in his employer's pension plan.

The Divisional Court dismissed the application primarily because the applicant failed to exhaust his statutory right of appeal under the Pension Benefits Act and no special circumstances justified bypassing that route.

The Court also found that the application would fail on the merits, as the Tribunal's findings of fact were supported by evidence and its discretionary decision was reasonable.

The appellant, a licensed life insurance agent, appealed an order suspending his licence for nine months and imposing conditions for 24 months.

The order was based on a finding of unsuitability stemming from prior disciplinary proceedings by the Mutual Fund Dealers Association (MFDA) for selling unapproved financial products and borrowing money from a client.

The Financial Services Tribunal determined that the applicable standard of review for the appeal was reasonableness.

The Tribunal found that the Director's findings of unsuitability and the imposed penalty were reasonable, subject to striking one unenforceable condition regarding a discharged bankruptcy and modifying an indefinite employment restriction.

The appeal was otherwise dismissed.

The applicant, a licensed mortgage broker, filed a Request for Hearing regarding Notices of Proposal to refuse to renew his licence and impose administrative penalties.

The Superintendent raised a preliminary motion arguing the Tribunal lacked jurisdiction because the request was filed beyond the 15-day statutory deadline.

The applicant argued he had been locked out of his home and failed to update his address with the regulator.

The Tribunal held that licensees have a strict obligation to maintain an updated mailing address.

Since the notices were properly delivered by registered mail to the address on file, and the applicant failed to file within the time limit without the Superintendent's consent to waive it, the Tribunal lacked jurisdiction.

The Request for Hearing was dismissed.

The Divisional Court upheld the Tribunal's finding that the applicant was unsuitable to remain licensed as a mortgage broker but remitted the matter for reconsideration of the penalty.

The Tribunal considered fresh evidence, including an affidavit demonstrating genuine remorse and rehabilitation, and letters of support.

Noting that the applicant had already served a 14-month de facto suspension and that the revocation order severely impacted his ability to earn income from registering mortgages, the Tribunal concluded that the suspension already served was a proportional penalty.

The Tribunal directed the Superintendent to reinstate the applicant's license subject to conditions.