Licence Appeal Tribunal
Tribunal File Number: 17-007152/AABS
In the matter of an Application pursuant to subsection 280(2) of the Insurance Act, RSO 1990, c I.8., in relation to statutory accident benefits.
Between:
D.S.
Applicant
and
State Farm Insurance
Respondent
MOTION DECISION
ADJUDICATOR: Rebecca Hines
APPEARANCES:
For the Applicant: Mohammad Doli
Counsel for the Respondent: Derek Yak, Counsel
HEARD: In writing and in-person on May 10, 2018
OVERVIEW:
1The applicant was injured in a motor vehicle accident on April 22, 2012, and applied for accident benefits from her insurer, State Farm Insurance (“the respondent”) under the Statutory Accident Benefit Schedule – Effective September 1, 2010 (the “Schedule”).
2The applicant now seeks a designation of catastrophic impairment as per s. 45 of the Schedule.
3The parties disagreed on the issue of catastrophic impairment and the applicant applied to the Licence Appeal Tribunal (the “LAT”). They were unable to resolve the matter at the case conference held on March 1, 2018 and a hearing is scheduled to proceed on August 20, 2018.
ISSUES IN DISPUTE:
4The applicant brought a motion for interim benefits seeking an order from the LAT for the following:
(i) Payment of 24-7 supervisory attendant care in the amount of $7,851.11 per month; and housekeeping in the amount of $100.00 per week from the date of the motion hearing until the LAT renders a decision on the catastrophic determination; and
(ii) Payment for retroactive attendant care benefits in the amount of $590,864.00 and housekeeping benefits in the amount of $31,200.00 incurred to date.
5The respondent is seeking costs of this motion.
6Although the hearing is scheduled to take place in less than three months, the purpose of this hearing is to decide whether the applicant has an urgent need for attendant care and housekeeping benefits.
7This hearing was held in writing and in-person on May 10, 2018 at the LAT in Toronto. The parties submitted documentary evidence, affidavit evidence, case law, and gave oral submissions.
RESULT:
8The LAT does not have jurisdiction to grant orders for interim payment of benefits.
PROCEDURAL ISSUES:
9Both parties raised procedural issues pertaining to the admittance of certain records on this motion. In light of my decision, I do not find it is necessary to address as the records are not relevant to the issue of jurisdiction.
JURISDICTION:
10The applicant relied on the decision of the Financial Services Commission of Ontario (“FSCO”) in Julie Wilson v. TD Home and Auto Insurance1 in support of her position that the LAT has jurisdiction to grant interim orders for payment of benefits. The respondent did not submit any argument or authority with respect to the issue of jurisdiction.
11I note that the legislation referred to in the decision submitted by the applicant is outdated as it quotes s.279 (4.1) of the Insurance Act (the “Act”) which has since been repealed. S.279 (4.1) of the Act (“the Act”) gave FSCO arbitrators the following powers:
“The Director and every arbitrator appointed by the Director may make interim orders pending the final order in any matter before the Director or arbitrator.”2
12The Act has since been amended for applications filed to the LAT after April 1, 2016. The Act now states:
s.280.6 “Without limiting what else the regulations may provide for and govern, the regulations may provide for and govern the following:
Orders, including interim orders, to pay costs, including orders requiring a person representing a party to pay costs personally.
Orders, including interim orders, to pay amounts even if those amounts are not costs or amounts to which a party is entitled under the Statutory Accident Benefit Schedule.2014, c.9, Sched.3, s.14.”3
13To date, no such regulation has been created. Prior to April 1, 2016, s. 121 (1) (10.4) of the Act provided the right to make procedural regulations. I find the above section provides the same procedural right, however, it does not provide the Tribunal with jurisdiction to grant orders for interim benefits without a regulation.
14Furthermore, s.67.1 and 67.2 of FSCO’s Dispute Resolution Practice Code (“DRPC”) gave arbitrators the procedural power to make preliminary or interim orders within a proceeding, pending a final order.4 The LAT’s Rules contain no such provision.
15The deliberate removal of s.279 of the Act was a significant departure from the past. On April 1, 2016, based on the recommendation of the Honourable Douglas Cunningham, the jurisdiction to resolve auto accident disputes transferred from FSCO to the LAT for the purpose of streamlining the dispute resolution process. The LAT’s current mandate is to ensure the fast, fair, and efficient resolution of accident benefit disputes.
16I acknowledge that the applicant brought this motion with the belief that I could grant the relief sought. However, she quoted outdated legislation and in the absence of a regulation I am unable to grant an order for payment of interim benefits. Fortunately, for the applicant her hearing is less than three months away. The hearing will ultimately determine the applicant’s entitlement to housekeeping and home maintenance benefits and past and ongoing attendant care benefits.
17For the above-noted reasons, I find the LAT does not have jurisdiction to grant interim orders for payment of accident benefits.
Is the respondent entitled to an order for costs from the applicant for this motion?
18The respondent requests an order for costs pursuant to Rule 19 which allows the Tribunal to make an award of costs, where a party believes that another party has acted unreasonably, frivolously, vexatiously or in bad faith. The respondent argued that the applicant’s behaviour is unreasonable in that she is aware that she has been non-compliant with providing documentation for the past six years and has brought this motion with un-clean hands.
19The threshold for costs at the LAT is a high one and a motion for interim benefits is a novel claim at the Tribunal. I do not find the respondent has provided evidence that meets the test for costs. The parties are able to seek costs at the conclusion of the hearing if they choose. Therefore, I do not find an order for costs is appropriate at this time.
ORDER:
1The applicant’s motion is dismissed.
2The respondent’s request for costs is dismissed.
Released: June 5, 2018
_________________
Rebecca Hines
Adjudicator
Footnotes
- Julie Wilson v. TD Home and Auto Insurance Company, 2006, (A03-001091)
- Insurance Act, R.S.O. 1990, Chapter I.8, at s.279 (4.1), before April 1, 2016.
- Insurance Act, R.S.O.1990,Chapter I.8, at s.280.(6), after April 1, 2016
- Financial Services Commission of Ontario’s Dispute Resolution Practice Code, ss.67.1 and 67.2