Safety, Licensing Appeals and Standards Tribunal Ontario
Licence Appeal Tribunal
Automobile Accident Benefits Service
Mailing Address: 77 Wellesley St. W., Box 250, Toronto, ON M7A 1N3
Tel:
416-314-4260
1 800-255-2214
TTY:
416-916-0548
1 844-403-5906
FAX:
416-325-1060
1 844-618-2566
Website: www.slasto.gov.on.ca/en/AABS
Tribunaux de la sécurité, des appels en matière de permis et des normes Ontario
Tribunal d'appel en matière de permis
Service d'aide relative aux indemnités d'accident automobile
Adresse postale : 77, rue Wellesley Ouest, Boîte no 250, Toronto ON M7A 1N3
Tél. :
416-314-4260
1 800-255-2214
ATS :
416-916-0548
1 844-403-5906
Téléc. :
416-325-1060
1 844-618-2566
Site Web : www.slasto.gov.on.ca/fr/AABS
RECONSIDERATION DECISION
Before: D. Gregory Flude, Vice-Chair
File: 17-004258/AABS
Case Name: [The Applicant] v. Aviva General Insurance
Written Submissions By:
For the Applicant: N.A.
For the Respondent: Kimberley Tye
OVERVIEW
1Pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010, O. Reg. 34/10 (the “Schedule”), the applicant applied to the Licence Appeal Tribunal (the “Tribunal”) for a determination that she had been catastrophically impaired in a motor vehicle accident on May 3, 2013. Other than a determination that she is catastrophically impaired, the applicant is not seeking any other relief.
2In the approximately four years between the accident and her application to the Tribunal, the applicant had used only $3,300 of the $50,000 of medical and rehabilitation benefits available to her under the Schedule. She had not applied for any of the $36,000 in attendant care benefits available to her. If the applicant did indeed suffer a catastrophic impairment as a result of the accident, then she would have available $1 million in medical and rehabilitation benefits, and $1 million in attendant care benefits.
3The respondent, Aviva Insurance Canada (“Aviva”), takes the position that, given the language used in s. 280(1) of the Insurance Act, R.S.O 1980 c. I.8 (the “Act”), the Tribunal does not have jurisdiction to determine if an individual has sustained a catastrophic impairment in the absence of a claim for a benefit. Following the parties’ case conference, the case conference adjudicator ordered a preliminary issue hearing to deal with Aviva’s jurisdictional argument.
4The preliminary issue hearing was heard in writing on February 13, 2018 by Adjudicator Ferguson. In his decision, released on March 2, 2018, he found that, notwithstanding the absence of a claim for a specific benefit, the Tribunal did have jurisdiction to determine whether the applicant was catastrophically impaired. Thus, he ordered the matter to proceed to a hearing. The respondent seeks a reconsideration of that decision.
ISSUE BEFORE ADJUDICATOR FERGUSON
5The case conference order defined the issue before Adjudicator Ferguson as follows:
Can the applicant proceed with her application to the Tribunal to determine catastrophic impairment in the absence of benefits in dispute?
6The issue as stated is not framed as one of jurisdiction but, in their written submissions for the hearing, both parties framed the issue in jurisdictional terms with only minor wording differences between their characterizations. As a result, Adjudicator Ferguson restated the issue using the wording in the respondent’s submissions:
Does the Tribunal have the jurisdiction to determine if an individual has sustained a catastrophic injury where there are no associated substantive benefits in dispute?
STANDARD OF REVIEW
7The rules governing this proceeding are the Licence Appeal Tribunal Rules of Practice and Procedure, Version I (April 1, 2016) (the “Rules”). According to Rule 18.1, the respondent is required to identify the applicable criterion for this request for reconsideration. The respondent relies on 18.2(b):
The Tribunal made a significant error of law or fact such that the Tribunal would likely have reached a different decision.
8There were no facts in dispute in the preliminary issue hearing. The hearing proceeded solely on a question of law. Rule 18.2(b) places the onus squarely on the respondent to point to a significant error of law that would have impacted the outcome. Accordingly, only if Adjudicator Ferguson’s interpretation of the law is significantly in error in a manner that would have affected the outcome, should I interfere. If his interpretation of the law shows no such significant error, then his decision must be allowed to stand.
RESULT
9Having considered the respondent’s submissions, I find that it has failed to identify any significant error of law in Adjudicator Ferguson’s decision. The adjudicator carefully considered all of the arguments advanced by the respondent. He distinguished the cases cited and declined to follow a decision of the Financial Services Commission of Ontario (“FSCO”) relied upon by the respondent, namely Mandamin v. Pafco FSCO A14-009905 (“Mandamin”), which the respondent concedes was not binding on Arbitrator Ferguson. He also considered the impact of s. 280 of the Act and declined to follow the narrow interpretation urged on him by the respondent. As explained below, I agree with his conclusion.
ANALYSIS
10The error of law alleged by the respondent is summed up in paragraph 16 of its submissions as follows:
Despite the clear distinction made by the higher courts, adjudicator Ferguson narrowly interpreted these cases to relate only to the limitation period arguments rather than setting out a general principle that claims for determination of a catastrophic impairment are distinct from claims for benefits.
11The starting point for the respondent’s submissions is s. 280 of the Act. That section gives this Tribunal the jurisdiction to adjudicate disputes over the entitlement to benefits in the following terms:
280 (1) This section applies with respect to the resolution of disputes in respect of an insured person’s entitlement to statutory accident benefits or in respect of the amount of statutory accident benefits to which an insured person is entitled.
Application to Tribunal
(2) The insured person or the insurer may apply to the Licence Appeal Tribunal to resolve a dispute described in subsection (1). [emphasis added]’
12In the respondent’s submission, the use of the phrase “statutory accident benefits” in s. 280(1) limits the Tribunal’s jurisdiction to disputes involving a claim for at least one specific benefit. To this end, the respondent relies on two court decisions, both of which held that the two-year limitation period in the 2013 version of the Act and Schedule (now only in the Schedule) did not apply to a catastrophic impairment dispute since there is no denial of a benefit. In the respondent’s submission, if a catastrophic impairment designation is not a benefit, then the correct interpretation of s. 280(1) of the Act is that the Tribunal has no jurisdiction to hear disputes involving only a catastrophic impairment determination.
13Adjudicator Ferguson considered s. 280(1) in paragraph 17 of his decision. He looked at the Act and the Schedule as a whole. In his view, the language of s. 280(1) was broad enough to include any dispute over one’s entitlement to benefits. He noted the similarities between the procedure set out in the Schedule for making a determination of catastrophic impairment and the procedure for claiming a disputed benefit. Finally, he noted that the Act and the Schedule were silent on whether a claim for a determination of catastrophic impairment had to be tied to a claim for benefit. He concluded that, when looked at in their totality, the Act and Schedule do not preclude a claim for a catastrophic determination on a stand-alone basis.
14I see no significant error in Adjudicator Ferguson’s analysis. The clear wording of s. 280(1) of the Act grants the Tribunal jurisdiction over all disputes with respect to entitlement to, or the amount of, statutory accident benefits. In doing so, the provision speaks in general terms about benefits. On a plain and ordinary reading, this general language encompasses any dispute concerning the class of benefits described in s. 18 of the Schedule to which one may be entitled: $3,500 in the case of a minor injury; $50,000 for medical and rehabilitation benefits and $36,000 for attendant care benefits for non-catastrophic injuries that do not fall with the definition of minor injury, and $1 million for medical and rehabilitation benefits and $1 million for attendant care benefits for those found to have sustained a catastrophic impairment. In my view, such a dispute is one that, on a plain reading of s. 280(1) of the Act, is obviously a dispute in respect of “the amount of a person’s entitlement to statutory accident benefits.”
15Given the respondent’s position with respect to case law, I will address that aspect of Adjudicator Ferguson’s decision. In its reconsideration submissions, the respondent cited two appellate level decisions for the proposition that a determination of catastrophic impairment is not a benefit: Machaj v. RBC, 2016 ONCA 257 (“Machaj”) and The Guarantee Co. v. Dong Do et al., 2015 ONSC 1891 (“Do”). Even if I were not bound by those two decisions, I would not disagree with that proposition. Where both I and Adjudicator Ferguson disagree with the respondent is the respondent’s assertion that these cases inform, and ultimately limit, the ambit of s. 280(1) of the Act.
16Adjudicator Ferguson gave s. 280(1) of the Act a purposive interpretation, but, in my view, one it can easily bear. He distinguished Machaj and Do on the basis that they dealt with a limitation period issue and a different section of the Act, s. 281.1. I agree with his having done so. Where s. 280(1) speaks in general terms about entitlement to benefits, s. 281.1 addresses the application of the limitation period in very specific and narrow language. Specifically, s. 281.1 states that a claim is to be commenced “within two years after the insurer’s refusal to pay the benefit claimed” [emphasis added]. It is this specificity of s. 281.1 that distinguishes the issue in Machaj and Do from a general dispute over a catastrophic determination and the broader language used in s. 280(1).
17The earlier of the two appellate cases was the Divisional Court’s decision in Do. In Do, the applicant applied for a determination that he was catastrophically impaired as a result of a motor vehicle accident. The insurer, The Guarantee Co., denied his application. Two years and eight months after the insurer’s denial, Mr. Do applied for arbitration at FSCO. The insurer argued that Mr. Do’s application was brought after the expiry of the two-year limitation period then set out in s. 281.1 of the Act (now s. 56 of the Schedule). The arbitrator at first instance and the Director’s Delegate on the reconsideration both concluded that the limitation period was inapplicable to Mr. Do’s application. They did so on two grounds: the specific wording of s. 281.1 only applied after the denial of a benefit, and the insurer’s failure to give Mr. Do a clear and unequivocal denial. The Divisional Court upheld the Director’s Delegate’s decision, adopting his reasoning. In arriving at their decision on the first ground, both the arbitrator and Director’s Delegate found that the determination of catastrophic impairment was not itself a benefit but rather a designation that entitles a claimant to request extended medical, rehabilitation and/or attendant care benefits and other expenses.
18The Court of Appeal then applied Do in Machaj. In that case, the insurer had added words to its denial informing Ms. Machaj that, as a result of the denial of a catastrophic impairment designation, she did not qualify “for the increased benefits.” The insurer argued that this wording constituted a denial of a benefit, triggering the running of the limitation period. At first instance, the motions judge accepted the insurer’s position, distinguished Do, and granted judgment to the insurer. The Court of Appeal overturned the motion judge’s decision and ordered the hearing to proceed.
19The respondent argues that the proper interpretation of Do and Machaj is that a stand-alone application for a catastrophic impairment determination is not a claim for a benefit. I agree with this position. However, it does not follow that the Tribunal therefore lacks jurisdiction under s. 280(1) of the Act to determine a stand-alone application for a catastrophic determination. As stated above, s. 280(1) gives the Tribunal jurisdiction over disputes in respect of the amount of benefits in issue, language broad enough to include a dispute over the class of benefits to which one is entitled.
20Aviva’s jurisdictional argument apparently found favour with Arbitrator Mongeon in Mandamin. The use of “apparently” is appropriate in this context as Arbitrator Mongeon failed to apply a jurisdictional analysis in coming to his decision. He proceeded directly from the determination in Do and Machaj that a catastrophic determination is not a benefit to the conclusion that this finding ousted FSCO’s jurisdiction. There is no analysis of the wording in s. 280(1) or the different wording in s. 281.1. His decision is largely based on the practical aspect that the applicant can bring an application for catastrophic determination before this Tribunal at any time in the future:
I note that the Applicant may seek to arbitrate the denial of benefits, dated June 6, 2016, under the LAT system. To the extent that the denial was based on the lack of a designation of catastrophic impairment, the Applicant will be free to ask for such a designation as no limitation period is applicable. [emphasis added]
21Adjudicator Ferguson declined to follow Mandamin as he was entitled. He found, as have I, that Adjudicator Mongeon had misapplied the findings in Do and Machaj.
APPLICATION OF THE Y.D. DECISION
22Additionally, the respondent argues that a determination that the applicant is catastrophically impaired constitutes declaratory relief, something also beyond the Tribunal’s jurisdiction.
23I disagree with the respondent’s characterization that a finding that the applicant is catastrophically impaired is declaratory relief. It is a routine factual determination of the nature and extent of the impairments sustained by the applicant in the accident based on evidence presented by the parties at a hearing. Declaratory relief, on the other hand, is an extraordinary remedy. Granted, the impact of that finding is that the applicant would be entitled to higher insurance policy limits under the Schedule. If I am wrong in this determination, I also disagree with the respondent’s sweeping statement that declaratory relief is beyond the jurisdiction of the Tribunal.
24The respondent relies on the Tribunal’s decision in Y.D. v. Aviva Insurance, 2017 CanLII 43883 (ONLAT) (“Y.D.”). Adjudicator Ferguson considered Y.D. and held that it did not stand for the proposition urged upon him by the respondent. I agree.
25In Y.D., the applicant had sustained injuries in a motor vehicle accident and required attendant care services. The services were provided by her husband, a physician. There was a dispute over whether the attendant care benefits were “incurred” as that term is defined in the Schedule and, more specifically, whether the applicant’s husband sustained an economic loss in providing those services. The Tribunal found that there had been no economic loss.
26The applicant in Y.D. advanced an alternative argument that, despite the fact that she was not entitled to benefits within the Schedule, the insurer was estopped from denying payment of the benefits because it had paid them for a period of six months. At paragraph 69 of the decision, the Tribunal correctly set out the limits of its jurisdiction:
It is a well-accepted principle that an administrative tribunal has only the powers conferred to it by statute. The jurisdiction of a statutory tribunal must be found in a statute and must extend not only to the subject matter of the application and the parties, but also to the remedy sought. As a creature of statute, the Licence Appeal Tribunal (“LAT”) only has such powers as have been given it by or under its enabling legislation.
27In this case, the simple answer to the respondent’s sweeping assertion that the Tribunal does not have the power to grant declaratory relief is that the Act and Schedule contemplate the Tribunal making this very determination. To accept the respondent’s position is to accept that the Tribunal can never make a catastrophic impairment determination despite the legislature’s direction otherwise.
DECISION
28Having considered the submissions of the respondent, I find that it has failed to establish that Adjudicator Ferguson made a significant error of law such that the Tribunal would likely have reached a different decision. The request for reconsideration is denied.
D. Gregory Flude
Vice-Chair
Safety, Licensing Appeals and Standards Tribunals Ontario
Released: December 19, 2018