DIVISIONAL COURT FILE NO.: 694/18 DATE: 20191212
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
SACHS, DUCHARME and LeMAY JJ.
BETWEEN:
ABDIRAHMAN ABYAN
Applicant
– and –
FINANCIAL SERVICES COMMISSION OF ONTARIO and SOVEREIGN GENERAL INSURANCE COMPANY
Respondents
COUNSEL:
Oneal Banerjee and Mohamed Elbassiouni, for the Applicant
Catherine A. Korte and Mahroze A. Khan, for the Respondent Sovereign General Insurance Company
Jeff Galway and Justin Manoryk for the Intervener, Insurance Bureau of Canada
Daniel Guttman and Aud Ranalli for the Intervener, Attorney General of Ontario
HEARD at Toronto: December 12, 2019
LeMay J. (Orally)
1This is an application for judicial review from the decision of the Director’s Delegate dated October 5th, 2018. The Director’s Delegate reversed an arbitration decision dated September 14th, 2017 in which the Arbitrator found the Minor Injury Guideline (“MIG”) of the Statutory Accident Benefits Schedule O. Reg. 34/10 Insurance Act R.S.O. 1990 c. I.8 to be contrary to section 15 of the Canadian Charter of Rights and Freedoms, and not saved by section 1 of the Charter.
2For the reasons that follow, I am of the view that the appeal should be dismissed. In order to understand my reasons for reaching this conclusion, I will first set out some background facts.
Background Facts
3The Applicant, Mr. Abdirahman Abyan, was injured in a motor vehicle accident on June 19th, 2015. He received some medical treatment for his injuries. These benefits were paid by the Respondent, Sovereign General Insurance Company.
4However, in late 2015, the Applicant submitted an OCF 18 for a proposed psychological assessment by a Dr. Jon Mills. This was for a psychological assessment to be performed on the Applicant. The insurer denied coverage for this report. In denying coverage for this report, the Respondent’s representatives (a company called Claimspro) stated that the MIG applied to the Applicant. Claimspro also advised the Applicant that he was being sent for another medical assessment by the Respondent.
5On March 21st, 2016, an Application for Arbitration was submitted by the Applicant. This application sought $1,995.32 for the costs of Dr. Mills’ examination, as well as interest and a special award.
6A mediation was held in this matter on January 4th, 2017, and the matter was not resolved. The principal issue in the arbitration, as identified by the mediator’s letter on January 4th, 2017, was whether the Applicant was entitled to payments for the cost of the examination by Dr. Mills.
7Prior to the Arbitration, the Applicant’s counsel served a notice of constitutional question. There is no dispute that this notice was properly served. This notice of constitutional question identified a challenge to the constitutionality of the MIG.
8As a result, the Arbitrator conducted a preliminary hearing on the issue of whether the MIG was constitutional. The Arbitrator had scheduled a subsequent date to deal with the factual dispute before him. Neither the Respondent nor the Attorneys General of Ontario or Canada attended at this hearing, although the Attorney General of Ontario sent correspondence expressing the view that constitutional issues should not be determined in a vacuum. The Respondent took no position before the Arbitrator on the constitutional question.
9In the absence of evidence or submissions from anyone but the Applicant, the Arbitrator decided that the MIG violated s. 15 of the Charter, and that the violations could not be saved under s. 1 of the Charter. The Arbitrator did not decide whether the requested medical assessment was necessary or whether that medical assessment was precluded by the MIG.
10The Respondent appealed this decision to the Director’s Delegate. In a decision dated October 5th, 2018, the Director’s Delegate rescinded the Arbitrator’s decision and remitted the matter back to the Arbitrator to determine whether the Applicant was entitled to payment for his claim for psychological assessment. In reaching his decision, the Director’s Delegate stated:
Sovereign General Insurance company appeals the order of Arbitrator Drory dated September 14, 2017. The Arbitrator found that two provisions of the SABS-2010 were unconstitutional, namely the definition of “minor injury” insofar as it includes chronic pain arising from minor injuries, and the requirement of a pre-accident condition to be documented in order to escape the effects of the “minor injury” definition.
However, the Arbitrator made these findings in a factual vacuum. Whether Mr. Abyan suffers chronic pain, is subject to the Minor Injury Guideline, and had an undocumented pre-existing condition that would prevent him from achieving maximal recovery within the Guideline’s limits should have been decided first.
11The Applicant appeals to this Court, asking that the decision of the Arbitrator be restored.
12At the hearing of the case this morning, counsel for the intervenor the Attorney General of Ontario raised a question as to whether the case has become moot. After inquiry with counsel, it was discovered that the account of Dr. Mills had been paid, but without prejudice to the Respondent’s ability to argue that the account was not reasonable or necessary. In addition, the Applicant had received payment without giving up the right to argue that he was entitled to interest and a special award.
13Counsel for the Respondent also pointed out that there are other benefits that are in dispute between the parties, but that there was nothing in the referral to arbitration that placed those issues in dispute before the Arbitrator had made the decision that was appealed. I understand that those issues remain outstanding, and will be decided once this Panel makes a decision in this case.
14Ultimately, the Court determined that the issues of mootness could be addressed in considering the question of whether the Director’s Delegate’s decision on the constitutional issue was wrong.
Analysis
15The issue in this case is whether the decision of the Director’s Delegate should be upheld. I start with the standard of review. The Applicant argues that the standard of review is correctness, while the Respondent argues that the standard of review on the constitutional issue is correctness, and the standard of review on the remainder of the reasons of the Director’s Delegate is reasonableness.
16The Director’s Delegate overturned the Arbitrator’s decision that the MIG violated section 15 of the Charter. Even a specialized tribunal’s decision on whether a provision passes Charter scrutiny and/or how to adjudicate a Charter claim is subject to judicial review on a correctness standard, and that is the applicable standard here.
17I am of the view that the decision made by the Director’s Delegate is correct.
18I start with the original issue that was before the Arbitrator. The original referral to Arbitration required the Arbitrator to determine whether the services that the Applicant asked the Respondent to pay for had been improperly withheld. That question has yet to be answered by the Arbitrator.
19Similarly, there are a number of other questions that were not specifically answered by the Arbitrator’s decision, such as:
(a) Whether the Applicant had an ongoing condition, and whether that condition is chronic pain.
(b) Whether the services of Dr. Mills would have assisted the Applicant in managing that condition.
(c) Whether the Applicant was subject to the MIG.
(d) Whether the MIG operated to deny the Applicant benefits to which he would otherwise have been entitled to.
20These are all questions that need to be answered so that an adjudicator and a reviewing Court can more properly assess the constitutionality of the MIG.
21Counsel for the Applicant argued that the Arbitrator accepted the opinions of the Applicant’s treating physician about chronic pain. However, I note that the Arbitrator made no specific findings about the Applicant’s medical condition. In the absence of any of those specific findings, it is difficult to see how, or even whether, the Applicant’s Charter rights have been affected.
22In MacKay v. Manitoba (1989 26 (SCC), [1989] 2 SCR 357 at 361-62), the Supreme Court stated:
Charter decisions should not and must not be made in a factual vacuum. To attempt to do so would trivialize the Charter and inevitably result in ill-considered opinions. The presentation of facts is not, as stated by the respondent, a mere technicality; rather, it is essential to a proper consideration of Charter issues. A respondent cannot, by simply consenting to dispense with the factual background, require or expect a court to deal with an issue such as this in a factual void. Charter decisions cannot be based upon the unsupported hypotheses of enthusiastic counsel.
23The Supreme Court has also made similar observations in a host of other cases, including Philips v. Nova Scotia (Westray Mine Inquiry) 1995 86 (SCC), [1995] 2 S.C.R. 97, Danson v. Ontario (Attorney General) 1990 93 (SCC), [1990] 2 S.C.R. 1086 and Manitoba (Attorney General) v. Metropolitan Stores Ltd. 1987 79 (SCC), [1987] 1 S.C.R. 110. Exceptions to the principle that constitutional questions should not be decided in a vacuum will be rare, and will be limited to cases where the question of constitutionality presents itself as a simple question of law.
24In this case, the Director’s Delegate correctly identified the problem with the Arbitrator’s decision. The Arbitrator made a finding of constitutional invalidity in a factual vacuum. Indeed, the Arbitrator found the MIG unconstitutional before making any findings about whether the MIG had any adverse application to the Applicant.
25Benefits schemes, such as the no-fault insurance provisions for motor vehicles, are complex and multifaceted. Changing one part of a benefits scheme can have affects on other parts of that scheme. It is especially important to have a robust factual background when considering constitutional challenges to systems such as these.
26I am fortified in that conclusion by the mootness issue that was raised this morning. It is clear that there are additional benefits claims that are outstanding in this case. The Arbitrator, the Director’s Delegate and any reviewing Court should have the advantage of full conclusions on the Applicant’s claims for these benefits.
27The possibility that there may be both “legislative facts” and “adjudicative facts” available to the Arbitrator does not assist the Applicant in this case. The Director’s Delegate correctly concluded that the Arbitrator did not actually make any findings of fact about the nature of the Applicant’s injuries, whether those injuries required continuing treatment, or whether the MIG adversely affected the Applicant. In the absence of those findings, it cannot be said that there is either a constitutional violation, or that the Applicant is entitled to a remedy as a result of any violation. The fact that the evidence was before the Arbitrator is not sufficient.
28The Appellant also claims that the constitutionality of the MIG were before the Arbitrator because they had been raised as a defence to the Applicant’s claims during adjudication of the case by the Respondent. It is clear that the Respondent’s correspondence referenced the applicability of the MIG. However, until it is determined by the arbitrator that the MIG applies to this case and that it precludes the Applicant from receiving benefits that he would otherwise be entitled to, the Arbitrator could not determine whether those provisions were constitutional.
29Finally, the Director’s Delegate set out some detailed concerns about the Arbitrator’s analysis. In view of my decision, there is no need for us to review the constitutional analysis. However, I would note that my decision is without prejudice to the ability of the Applicant to raise the constitutional issues if necessary, once a full decision on the merits of his claim is made by the Arbitrator. I would also note that a fuller record with all parties participating will permit a more complete constitutional analysis and that some of the concerns with the Arbitrator’s constitutional analysis can be addressed in light of a more complete record.
30For these reasons, the Application is dismissed.
SACHS J.
31I have endorsed the back of the Application Record of the Applicant as follows: “This application is dismissed for reasons given orally by LeMay J. The parties have advised that there is no need for an order with respect to costs. They have resolved the issue.”
LeMay J.
I agree
Sachs J.
I agree
Ducharme J.
Date of Oral Reasons for Judgment: December 12, 2019
Date of Release: December 18, 2019
CITATION: Abyan v. Financial Services Commission of Ontario, 2019 ONSC 7247
DIVISIONAL COURT FILE NO.: 694/18 DATE: 20191212
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
SACHS, DUCHARME and LeMAY JJ.
BETWEEN:
ABDIRAHMAN ABYAN
Applicant
– and –
FINANCIAL SERVICES COMMISSION OF ONTARIO and SOVEREIGN GENERAL INSURANCE COMPANY
Respondents
ORAL REASONS FOR JUDGMENT
LeMay J.
Date of Oral Reasons for Judgment: December 12, 2019
Date of Release: December 18, 2019