Court File and Parties

Citation: Schroter v. Economical Mutual, 2024 ONSC 3714 Divisional Court File No.: 475/23 Date: 2024-06-28 Superior Court of Justice – Ontario Divisional Court

Re: Monica Schroter, Applicant / Respondent And: Economical Insurance Company, Respondent / Appellant

Before: D.L. Corbett, LeMay and Shore JJ.

Counsel: Martin Forget and Suhasha Hewagama, for the Appellant Julia Vilorio Peguero and Ashu Ismail, for the Respondent

Heard at Toronto: June 25, 2024

Endorsement

The Court:

[1] This is a statutory appeal from the decision of the License Appeal Tribunal (“LAT”) dated July 14, 2023 [Schroter v. Economical Insurance, 2023 62904 (ON LAT)], and the reconsideration decision of the LAT dated November 23, 2023 [Schroter v. Economical Insurance, 2023 110915 (ON LAT)]. This appeal is confined to questions of law: Licence Appeal Tribunal Act, 1999, SO 1999, c. 12, Sched. G, ss. 11(1) and 11(6).

[2] The LAT found that the Respondent’s election pursuant to s, 31(5) of the Statutory Accident Benefits Schedule – Effective September 1, 2010, O. Reg. 34/10 (the “SABS”) was “invalid” because of the Appellant’s non-compliance with s. 32(2)(b) of the SABS. The LAT made factual findings about the nature and impact of this non-compliance, and those findings are not reviewable on appeal to this court. Those findings were a basis upon which the LAT could find the election invalid: the LAT’s reasoning does not disclose an error of law.

[3] Having found that the election was invalid, the LAT then stated that the Respondent “can change” her election. This language was infelicitous. Since the initial election was “invalid”, the Respondent had not made an election, within the meaning of the SABS, and there is no “change” or “re-election”.

[4] We agree with the Appellant that a claimant may not “change” their election except as expressly provided by the SABS. However, where an election is invalid because of an insurer’s non-compliance, the general prohibition on “changing an election” or “re-electing” does not arise: there is no election within the meaning of s.31(5) and thus no “change” or “re-election” to be made.

[5] The LAT’s reasoning in this case is not inconsistent with past practice, nor does it fail to respect the “finality” principle that has been introduced by amendment to s. 31. We need not consider, in this case, the nature and impact of non-compliance that must be found before an election is found to be “invalid”: on the facts as found by the LAT in this case, the impact of the non-compliance vitiated the election.

[6] We appreciate the Appellant’s argument that the LAT’s reasons on this issue did not address all of the circumstances that could have weighed in its assessment of whether the election was invalid. However, the LAT’s reasons on this issue must be read in the context of the overall decision. The parties raised eleven issues before the LAT, and this issue was not among the most important issues for decision. The LAT’s reasons on this issue were sufficient, given the overall task before the LAT, and the basis on which this issue was argued before it.

[7] The LAT’s reconsideration decision focused on the Appellant’s temporal non-compliance with s. 32(2)(b). We do not read the LAT’s initial decision to be confined to the temporal non-compliance, and we do not find it necessary to address the reasoning in the reconsideration decision in light of our conclusion that there is no appealable error in the initial decision.

[8] The appeal is dismissed, with costs in the agreed amount of $10,000.00, payable within thirty days.

“D. L. Corbett J.”

“LeMay J.”

“Shore J.”

Released: June 28, 2024