CITATION: Simser v. Aviva Canada and FSCO, 2015 ONSC 2363

DIVISIONAL COURT FILE NO.: 135/14

DATE: 20150417

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

Swinton, J. Mackinnon, Lederer JJ.

BETWEEN:

Kevin Simser

Applicant

– and –

Aviva Canada Inc. and Financial Services Commission of Ontario

Respondents

David E. Preszler, Michael J. Sloniowski, for the Applicant

James M. Brown, for the Respondent Aviva Canada Inc.

Douglas Lee, for the Respondent FSCO

HEARD at Toronto: January 13, 2015

REASONS FOR JUDGMENT

J. Mackinnon J.

[1] This judicial review application presents two central issues for determination: the standard of review and the meaning of the phrase “economic loss” in s. 3(7) of the 2010 Statutory Accident Benefits Schedule, O. Reg. 34/10 (the Regulation).

Overview

[2] Mr. Simser was seriously injured in a car accident in 2010. His insurer, Aviva Canada, has refused his claim for attendant care and housekeeping expenses for the period between February and October 2011, when Mr. Simser’s former wife and their daughter returned to live with him and a local lawn company maintained his property. Aviva takes the position that these caregivers did not sustain an “economic loss” while looking after Mr. Simser and his property, and therefore he did not “incur” the claimed expenses within the meaning of the Regulation.

[3] These terms appear in section 3(7) (e) of the Regulation as limitations on the recovery for attendant care benefits and housekeeping and home maintenance benefits by an insured person. Section 3(7)(e) provides as follows:

… an expense in respect of goods or services referred to in this Regulation is not incurred by an insured person unless,

(i) the insured person has received the goods or services to which the expense relates,

(ii) the insured person has paid the expense, has promised to pay the expense or is otherwise legally obligated to pay the expense, and

(iii) the person who provided the goods or services,

(A) did so in the course of the employment, occupation or profession in which he or she would ordinarily have been engaged, but for the accident, or

(B) sustained an economic loss as a result of providing the goods or services to the insured person;

[4] The dispute here concerns whether or not the person who provided the goods or services came within s. 3(7) (e) (iii). An arbitrator with the Financial Services Commission (FSCO) found there was no evidence that Mr. Simser’s wife or daughter suffered any pecuniary loss, such as a loss of wages or overtime. The arbitrator also found that the evidence did not establish that the lawn care company provided the service in the course of its ordinary employment. This decision was upheld on appeal to a Director’s Delegate (the Delegate) brought pursuant to section 283(1) of the Insurance Act, R.S.O. 1990, c.I.8 [the Act].

[5] In the judicial review application to this court, Mr. Simser submits that both the arbitrator and the Delegate erred in law in defining “economic loss” and that the applicable standard of review on this issue is correctness. Aviva disagrees that any error was made below in the definition of the term “economic loss” but agrees that the standard of review is correctness. FSCO takes no position on the merits, but submits that reasonableness is the proper standard of review for the questions of law raised in this application.

[6] The issue with respect to the standard of review arises from section 281(1) of the Act, which reads as follows:

281. (1) Subject to subsection (2),

(a) the insured person may bring a proceeding in a court of competent jurisdiction; [or]

(b) the insured person may refer the issues in dispute to an arbitrator under section 282…

The so-called FSCO arbitration under s. 282(1) is commenced by the insured person filing an application for the appointment of an arbitrator with the Commission. This is the process Mr. Simser chose.

[7] Aviva submits that because an insured person has this unrestricted choice of forum, the same questions of law can arise either in court or at arbitration. Accordingly, Aviva submits that the standard of review for questions of law from either forum should be consistent. Applying the standard of reasonableness to the Delegate’s decision on a question of law, and correctness to the same question of law decided by a court, could produce conflicting decisions. In Aviva’s submission, this concurrent jurisdiction warrants the adoption of correctness as the standard of review for questions of law arising in both forums.

[8] FSCO relies upon the Delegate’s exercise of specialized jurisdiction under his home statute, and the privative clause contained in the Act, to argue that the standard of review for questions of law is reasonableness. When an insured person chooses to proceed by FSCO arbitration, s. 20(1) and (2) of the Act are engaged:

(1) This section applies with respect to proceedings under this Act before the Tribunal, the Superintendent and the Director and before an arbitrator.

(2) A person referred to in subsection (1) has exclusive jurisdiction to exercise the powers conferred upon him or her under this Act and to determine all questions of fact or law that arise in any proceeding before him or her and, unless an appeal is provided under this Act, his or her decision thereon is final and conclusive for all purposes.

Factual Context

[9] The applicant sustained serious injuries in a motor vehicle collision on November 10, 2010. He was found to require assistance with his personal care as well as housekeeping and home maintenance. Following his discharge from hospital on February 1, 2011 his former spouse, Julie Simser and their daughter, Kasey Simser, both of whom had been living in another town, moved into his home to care for him. They provided this assistance until October 1, 2011.

[10] The applicant also received home maintenance services provided by a lawn care company for the period of June 2011 until October 2011.

[11] Mr. Simser’s attendant care needs for this period of time had been calculated at $2,459.01 per month. His need for housekeeping and home maintenance assistance was calculated at 2.5 hours per week, plus snow removal. The applicant claimed benefits for the eight months in question according to these calculations.

[12] Julie Simser testified at the arbitration hearing. Kasey Simser did not. Nor did anyone appear from the lawn care company. The parties filed an agreed statement of facts, and each party filed an exhibit book. The exhibits included typewritten receipts on plain paper showing the name “JJ’s Lawn Care”, an address, but no business logo or letterhead, no business registration number or HST number, no telephone number or other contact information. The applicant also filed an expert opinion as to the definition of “economic loss”.

[13] Julie Simser testified that she continued to work at her normal job during the eight months in question. She testified that she lost five to ten hours of work per week in providing services to Mr. Simser, and that she worked less overtime during this period. However, she did not state that she earned less income while she was a service provider. Nor did she provide any documentation from her employer to substantiate her claims of reduced working hours and lost overtime. The arbitrator wrote that “The vagueness, lack of specificity and the lack of testimony on crucial points was lethal to her credibility.”

[14] The evidence with respect to Kasey Simser was given by her mother. She testified that Kasey had lost time from her schooling, which was adversely affected by the services she provided to her father. There was no evidence as to her academic plans, transcripts, attendance records or other scholastic documentation presented. The arbitrator drew an adverse inference from Kasey Simser’s failure to testify.

[15] The arbitrator noted the generic nature of the invoices from JJ Lawn Care. He referred to Julie Simser’s testimony that Mr. Simser had hired Joey Parkins of JJ Lawn Care to mow his lawn. He referred to the unanswered questions posed by Aviva set out in the agreed statement of facts, in which Aviva sought standard commercial information and noted that its searches had not provided any matching results for JJ Lawn Care. No one testified from JJ Lawn Care. The arbitrator found it had not provided home maintenance services in the course of the employment, occupation or profession in which it was ordinarily engaged.

[16] Aviva did reimburse Julie Simser for $797.96 in out-of-pocket expenses accompanied by receipts incurred on account of fuel charges, parking fees, and restaurant bills incurred while travelling from her home to the hospital where Mr. Simser was initially convalescing. Of these, three or four receipts, totaling about $50.00, were incurred during the time when she was providing attendant care and housekeeping services to Mr. Simser at his home.

[17] Against this factual context, the expert opinion detailed how the words “economic loss” have been defined and applied in the field of economics. The expert described various types of economic loss, such as loss of income or loss of time that can be devoted to labour or leisure. He cited, as an example, the opportunity cost of attending university: the student loses the opportunity of earning income during the time spent in school. The expert defined the loss of time as an economic loss, because time spent in providing attendant care and household services could have been spent in earning income, doing one’s own housekeeping, or enjoying valuable leisure activities. That economic loss was said to be equal to the opportunity cost of using this time in some other activity.

[18] The arbitrator concluded that the term “economic loss” as used in the Regulation is restricted to a monetary or financial loss. He rejected the “loss of time” interpretation suggested by the expert. In his view, a service provider will always expend or lose time in the provision of a service; some opportunity, chance or time will always be lost. He noted that the term was intended to serve as a threshold for entitlement to benefits, whereas under the expert’s definition every service provider would incur an economic loss, thereby depriving the term of meaning.

[19] An appeal lies to the Director on a question of law. In this case, the Delegate held that the arbitrator did not err in law by adopting a narrow construction of “economic loss”. He found no error in the rejection of mere “loss of time” as establishing economic loss. With respect to the out-of-pocket expenses incurred during the relevant time and reimbursed by Aviva, he noted that the evidence did not show they were incurred as result of providing the goods or services to the insured and therefore on their own they did not satisfy the requirement for “economic loss”.

Standard of Review

[20] In Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 [Dunsmuir], the Supreme Court of Canada concluded that there ought to be two standards for judicial review of decisions of administrative tribunals: correctness and reasonableness. Prior decisions of this court and of the Court of Appeal for Ontario have held that reasonableness is the appropriate standard of review for a Delegate’s decision on the interpretation of statutes that govern disputes in the area of entitlement to no-fault motor vehicle accident benefits in Ontario.

[21] The submission that the standard of review ought to be correctness is based on Rogers Communications Inc. v. Society of Composers, Authors and Music Publishers of Canada, 2012 SCC 35, [2012] 2 S.C.R. 283 [Rogers Communications] and the concurrent original jurisdiction between the courts and arbitration provided for in s.281(1) of the Insurance Act.

[22] At issue in Rogers Communications was the interpretation of the Copyright Act by the Copyright Board - more specifically, whether streaming of files from the Internet triggered by individual users constitutes communication “to the public” of the musical works contained therein by online music services who make the files available. The Copyright Board answered this question in the affirmative. Rogers applied to the Federal Court of Appeal for judicial review. That Court applied the standard of review of reasonableness and dismissed the application. Rogers then appealed to the Supreme Court of Canada.

[23] Writing for the majority, Rothstein J. stated at paras. 10, 11, 12, 13, 14, 15, 19 and 20:

[10] The appropriate standard for reviewing the Board’s determination on points of law was considered by Binnie J. in SOCAN v. CAIP. In concluding that the correctness standard must apply, he wrote, at para. 49:

There is neither a preclusive clause nor a statutory right of appeal from decisions of the Copyright Board. While the Chair of the Board must be a current or retired judge, the Board may hold a hearing without any legally trained member present. The Copyright Act is an act of general application which usually is dealt with before courts rather than tribunals. The questions at issue in this appeal are legal questions. [Emphasis added.]

[11] Since that decision, this Court has substantially revised the appropriate approach to judicial review. New Brunswick (Board of Management) v. Dunsmuir, 2008 SCC 9, [2008] 1 S.C.R. 190, made clear that an administrative body interpreting and applying its home statute should normally be accorded deference on judicial review. See also Canada (Attorney General) v. Mowat, 2011 SCC 53, [2011] 3 S.C.R. 471 (“Canada (CHRC)”), at para. 16, and Alliance Pipeline Ltd. v. Smith, 2011 SCC 7, [2011] 1 S.C.R. 160, at para. 26. In A.T.A. v. Alberta (Information & Privacy Commissioner), 2011 SCC 61, [2011] 3 S.C.R. 654, [A.T.A.] at para. 39, the Court held that “[w]hen considering a decision of an administrative tribunal interpreting or applying its home statute, it should be presumed that the appropriate standard of review is reasonableness.” By setting up a specialized tribunal to determine certain issues the legislature is presumed to have recognized superior expertise in that body in respect of issues arising under its home statute or a closely related statute, warranting judicial review for reasonableness.

[12] As stated by Binnie J. in SOCAN v. CAIP, the core of the Board’s mandate is “the working out of the details of an appropriate royalty tariff” (para. 49). Nevertheless, in order to carry out this mandate, the Board is routinely called upon to ascertain rights underlying any proposed tariff. In this, it is construing the Act, its home statute.

[13] However, as Binnie J. noted in SOCAN v. CAIP the Act is a statute that will also be brought before the courts for interpretation at first instance in proceedings for copyright infringement. The court will examine the same legal issues the Board may be required to address in carrying out its mandate. On appeal, questions of law decided by the courts in these proceedings would be reviewed for correctness: Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, at para. 8.

[14] It would be inconsistent for the court to review a legal question on judicial review of a decision of the Board on a deferential standard and decide exactly the same legal question de novo if it arose in an infringement action in the court at first instance. It would be equally inconsistent if on appeal from a judicial review, the appeal court were to approach a legal question decided by the Board on a deferential standard, but adopt a correctness standard on an appeal from a decision of a court at first instance on the same legal question.

[15] Because of the unusual statutory scheme under which the Board and the court may each have to consider the same legal question at first instance, it must be inferred that the legislative intent was not to recognize superior expertise of the Board relative to the court with respect to such legal questions. This concurrent jurisdiction of the Board and the court at first instance in interpreting the Copyright Act rebuts the presumption of reasonableness review of the Board’s decisions on questions of law under its home statute. This is consistent with Dunsmuir, which directed that “[a] discrete and special administrative regime in which the decision maker has special expertise” was a “facto[r that] will lead to the conclusion that the decision maker should be given deference and a reasonableness test applied” (at para. 55). Because of the jurisdiction at first instance that it shares with the courts, the Board cannot be said to operate in such a “discrete…administrative regime”. Therefore, I cannot agree with Abella J. that the fact that courts routinely carry out the same interpretive tasks as the board at first instance “does not detract from the Board’s particular familiarity and expertise with the provisions of the Copyright Act” (para. 11). In these circumstances, courts must be assumed to have the same familiarity and expertise with the statute as the board. Accordingly, I am of the opinion that in SOCAN v. CAIP, Binnie J. determined in a satisfactory manner that the standard of correctness should be the appropriate standard of review on questions of law arising on judicial review from the Copyright Board (Dunsmuir, at para. 62).

[19] I wish to be clear that the statutory scheme under which both a tribunal and a court may decide the same legal question at first instance is quite unlike the scheme under which the vast majority of judicial reviews arises. Concurrent jurisdiction at first instance seems to appear only under intellectual property statutes where Parliament has preserved dual jurisdiction between the tribunals and the courts. However, I leave the determination of the appropriate standard of review of a tribunal decision under other intellectual property statutes for a case in which it arises. Nothing in these reasons should be taken as departing from Dunsmuir and its progeny as to the presumptively deferential approach to the review of questions of law decided by tribunals involving their home statute or statutes closely connected to their function.

[24] Returning briefly to Dunsmuir, the Supreme Court outlined the two-step process of determining the standard of review at para. 62:

First, courts ascertain whether the jurisprudence has already determined in a satisfactory manner the degree of deference to be accorded with regard to a particular category of question. Second, where the first inquiry proves unfruitful, courts must proceed to an analysis of the factors making it possible to identify the proper standard of review.

[25] The factors to which the Court refers are set out in para. 64 of Dunsmuir:

The analysis must be contextual. As mentioned above, it is dependent on the application of a number of relevant factors, including: (1) the presence or absence of a privative clause; (2) the purpose of the tribunal as determined by interpretation of enabling legislation; (3) the nature of the question at issue, and; (4) the expertise of the tribunal. In many cases, it will not be necessary to consider all of the factors, as some of them may be determinative in the application of the reasonableness standard in a specific case.

[26] FSCO submits that the Ontario courts have already satisfactorily determined the degree of deference to be accorded to the Director’s Delegate’s decision in this case. In both Pastore v. Aviva Canada Inc., 2012 ONCA 642 [Pastore] and Gordyukova v. Certas Direct Insurance Co., 2012 ONCA 563, the Court of Appeal applied the reasonableness standard of review where the Delegate was engaged in the interpretation and application of his or her home statute, the Insurance Act, and the SABS regulations under the Act. In both cases it was conceded that the standard of review was reasonableness, although the Court did carry out its own standard of review analysis in Pastore. Neither case specifically addressed concurrent jurisdiction or the decision of the Supreme Court of Canada in Rogers Communications.

[27] After Rogers Communications was released, Aviva sought leave to reopen the Pastore appeal to argue that the correctness standard of review ought to apply to the statutory scheme set out in the Insurance Act. The Court of Appeal denied the request to reopen at 2012 ONCA 887, but did not comment on the merits of that issue. Instead, the appeal court noted that Aviva had not brought either SOCAN v. CAIP or Rogers Communications to its attention before its reasons were released despite the fact that SOCAN was a 2004 decision and Rogers Communications had been heard and reserved by the Supreme Court in December 2011 and released while Pastore was still under reserve by the Court of Appeal.

[28] The Ontario Court of Appeal also refused leave to appeal from two decisions of the Divisional Court which applied the reasonableness standard of review: State Farm Mutual Automobile Insurance Co. v. Federico, 2014 ONSC 109, and Security National Insurance Co. v. Hodges and FSCO, 2014 ONSC 3267. Federico is the leading Divisional Court decision which addresses concurrent jurisdiction in relation to standard of review. Other Divisional Court decisions rendered after Rogers Communications also apply the reasonableness standard of review, but either adopted the reasons in Federico, or standard of review was not in issue. These are Bouchard v. Motors Insurance Corp., 2013 ONSC 2205, [2013] O.J. 1960; Security National Insurance Co. v. Hodges and FSCO, 2014 ONSC 3267; Personal Insurance Co. v. Hoang and FSCO, 2014 ONSC 81; and Hayward v. Royal & Sun Alliance Insurance Company, 2015 ONSC 433.

[29] The court in Federico gave two reasons for finding the standard of review was reasonableness. The Insurance Act contains a privative clause in s. 20(2), which is a significant factor weighing strongly in favour of the reasonableness standard. The Court also followed the Supreme Court of Canada in McLean v. British Columbia (Securities Commission), 2013 SCC 67, [2013] 3 S.C.R. 895 [McLean]. In McLean, the Supreme Court of Canada found that the standard of review applicable to the legal question determined by the Securities Commission was reasonableness. Rogers Communications was distinguished on the basis that there the presumption of reasonableness review had been rebutted by the fact that both the tribunal and the courts may each have had to consider the same legal question at first instance. Not so in McLean where the legal question was tasked solely to the Commission in the first instance.

[30] The Divisional Court in Federico distinguished Rogers Communications based on the presence of the privative clause in the Act and its view that the effect of that clause, by giving the FSCO arbitrator exclusive jurisdiction to determine all questions of fact or law that arise in any proceeding before him or her, was to solely task the FSCO arbitrator, such that McLean was the governing authority. I disagree with the reasoning of the court in Federico to this extent: in my view s. 20(2) of the Act does not have the effect of conferring the FSCO arbitrator with exclusive original jurisdiction. Rather s. 281(1) of the Act does create a regime of concurrent original jurisdiction. Section 20(2) is important because that privative clause creates a significant distinction between this statutory regime and that in Rogers Communications, where the decisions of the Copyright Board were not protected by such a clause.

[31] In both Rogers Communications and McLean the Supreme Court was careful to emphasize that neither decision detracted from Dunsmuir and the presumption of deference when a tribunal is interpreting its home statute. Writing for the majority in McLean, Justice Moldaver explained the Court’s decision in Rogers Communications at para 22, “Second, we have also said that a contextual analysis may ‘rebut the presumption of reasonableness review for questions involving the interpretation of the home statute’ ”.

[32] Accordingly, Rogers Communications ought not to be taken as having established a new test for determining the standard of review or as laying down a fixed rule that whenever there is original concurrent jurisdiction the correctness standard of review will apply to questions of law. Justice Rothstein includes excerpts from SOCAN to the effect that Copyright Act matters are usually dealt with in court rather than by tribunals, that the core function of the Board is working out the details of an appropriate royalty tariff, and the statutory scheme before him was quite unlike the vast majority of administrative schemes that form the subject of judicial review. These facts are part of the contextual analysis in Rogers Communications.

[33] In Pastore, the Ontario Court of Appeal held that reasonableness was the appropriate standard of review for the decision of a FSCO Director’s Delegate on a question of law. That Court did conduct a Dunsmuir analysis. The context of the analysis is set out in paras 21 and 22:

[21] …The existence of a privative clause, one of the factors that is weighed in determining the applicable standard, weighs strongly in favour of the reasonableness standard.

[22] The other three factors are, second, the purpose of the decision-maker; third, the nature of the question of law; and fourth, the expertise of the tribunal. Together, these factors support a deferential standard. The specialized adjudicative scheme for deciding issues of entitlement to SABS benefits, which includes interpreting the legislation, recognizes the expertise and experience of the director (and the delegates) and gives the director the authority to make the final determination, to which deference is typically afforded.

[34] In this context the question is whether concurrent original jurisdiction in a legislative scheme which provides an insured with an election as between FSCO arbitration and a court proceeding is sufficient to rebut the presumption of deference from which Dunsmuir begins, especially in light of the privative clause that protects the decisions of arbitrators and the Director (and Delegates) when the choice has been made for FSCO arbitration.

[35] The contextual analysis leads to the conclusion that here, the original concurrent jurisdiction is not sufficient to rebut the presumption of reasonableness review, as other panels of the Divisional Court have also found. The result is that the interpretation of the phrase “economic loss” may come before a FSCO arbitrator and a Delegate or a court. While a different standard of review may be applied to a question of law determined by a FSCO Delegate as compared to a determination by a court, that does not necessarily lead to different interpretations of the legislation. The appropriate treatment of possible inconsistent interpretations should be left to be determined in an appropriate case where the facts are such as to engage the issue.

Economic Loss

[36] The Court of Appeal reviewed the history of the regulations governing payment for attendant care provided by family members in Henry v. Gore Mutual Insurance Co., 2012 ONCA 480 at paras. 27 – 36. The Court concluded that the current s. 3(7)(e) with its requirement that the family caregiver would have to sustain an economic loss was intended to provide a rough check on attendant care costs. At para. 36 the Court held:

If no such [economic] loss is sustained, no attendant care benefits are payable in respect of care provided by the family member, even if the family member provides care that would otherwise be provided by someone in the course of their employment, occupation or profession and would necessitate the payment of attendant care by the insured.

[37] The Court of Appeal declined to define “economic loss”. On the facts of that case the economic loss was clear. The insured’s mother gave up full-time paid employment to provide care for her son on a 24 hour per day basis.

[38] In my view the decisions below are reasonable in their interpretation of the term “economic loss”. Although not necessary to the decision, I would have had no hesitation in finding that the interpretation of “economic loss” was correct, were that the appropriate standard of review, as the language of the Regulation does not give rise to two reasonable interpretations.

[39] The ordinary meaning of the term is a financial or pecuniary loss. The drafters did not simply use the word “loss”. Indeed, the French version of the term uses the words “perte pécuniaire”, which suggests an actual financial loss. The Respondent Aviva Canada submitted that:

A monetary or financial loss is the ordinary manner in which the term “economic loss” is understood. For example, the most recent edition of Black’s Law Dictionary defines the term “economic loss” as follows:

Economic loss: A monetary loss such as lost wages or lost profits. The term usually refers to a type of damages recoverable in a lawsuit. For example, in a products-liability suit, economic loss includes the cost of repair or replacement of the defective property, as well as commercial loss for the property’s inadequate value and consequent loss of profits or use.

Black’s Law Dictionary, 9^th ed., Book of Authorities of the Respondent Aviva Canada Inc., Tab C2, s.v. “economic loss”

[40] If the broad definition advanced by the applicant’s expert were accepted, namely that any loss of time equals an economic loss, then the distinction between professional and lay service providers contemplated by s. 3(7)(e)(iii)(A) and (B) would be redundant. Nor does the definition of “economic loss” as requiring a financial or pecuniary sacrifice eliminate all potential opportunity costs. For example, a student might sustain an economic loss where s/he defers graduation in order to provide attendant care, resulting in postponement of paid employment. Of course, this type of economic loss would need to be established by a proper evidentiary foundation.

[41] In the Simser arbitration, having regarded to the paucity of evidence, the credibility findings, and the adverse inferences which were open to the arbitrator to make and which he did make, the only loss established by Julie and Kasey Simser was the loss of time spent. There is nothing unreasonable in finding that mere loss of time spent is not an economic loss within the meaning of the Regulation. The arbitrator’s and Delegate’s interpretation is also consistent with the legislative history of the current Regulation, which shows that the requirement to demonstrate an “economic loss” was added for the express purpose of restricting the applicability of attendant care benefits.

[42] Nor was the conclusion unreasonable that the combination of the generic invoices from JJ Lawn Care and Julie Simser’s testimony that Mr. Simser had hired Joey Parkins of that firm to cut his lawn did not establish that the lawn care services were provided in the course of employment, occupation or profession in which it would ordinarily have been engaged. In sum, the arbitrator was reasonably entitled to find that Mr. Simser did not “incur” the claimed expenses for attendant care between February and October 2011, and the Delegate reasonably upheld the decision.

[43] The conclusion that $50 of out of pocket expenses for which Aviva compensated Julie Simser did not constitute “economic loss” within the meaning of the provision is also reasonable because, although she incurred them during the relevant time period, they were not shown to be related to her provision of attendant care services.

Disposition

[44] The application for judicial review is dismissed. FSCO did not seek costs. By agreement of the other parties, costs of the application are awarded to Aviva in the amount of $7500 inclusive.

J. Mackinnon J.

Swinton J.

Lederer J.

Date: April 17, 2015

CITATION: Simser v. Aviva Canada and FSCO, 2015 ONSC 2363

DIVISIONAL COURT FILE NO.: 135/14

DATE: 20150417

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

Swinton, J. Mackinnon, and Lederer JJ.

BETWEEN:

Kevin Simser

Applicant

– and –

Aviva Canada Inc. and Financial Services Commission of Ontario

Respondents

REAONS FOR JUDGMENT

Released: April 17, 2015