A.S. v. Aviva Insurance Canada, 2019 CanLII 51335

Licence Appeal Tribunal

Tribunal File Number: 18-005228/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:

A.S.

Applicant

and

Aviva Insurance Canada

Respondent

DECISION

ADJUDICATOR: Amanda Fricot

APPEARANCES:

For the Applicant: Nicholas S. F. Greer, Counsel and Jordan Moore, Paralegal

For the Respondent: Louise Kanary, Counsel

Heard in Writing: February 19, 2019, with further Written Submissions on the preliminary issue dated March 8, 2019, March 22, 2019 and March 29, 2019.

OVERVIEW

1The applicant was injured in a motor vehicle accident on October 17, 2015 (“the accident”).

2The applicant sought accident benefits pursuant to the Statutory Accident Benefit Schedule – Effective September 1, 2010, O. Reg. 34/10 (the “Schedule”). An application was made to the Licence Appeal Tribunal – Automobile Accident Benefit Services (the “Tribunal”) when his claim for non-earner benefits was denied by the respondent. In his application he also sought a determination of whether his injuries are predominantly minor and subject to the Minor Injury Guideline¹ (“the MIG”).

3On February 15, 2019 the applicant advised the Tribunal that he was withdrawing his claim for a non-earner benefit, his claim for interest, and his Affidavit. The oral portion of the combination hearing was cancelled and the applicant requested that the Tribunal proceed with a written hearing and make a determination on the MIG issue.

4As the issue of whether the MIG applies is being advanced as a stand-alone issue, I determined that before considering this issue on its merits, I must first decide if I have jurisdiction to determine whether the MIG applies in the absence of an underlying dispute relating to entitlement to a benefit which is itself dependent upon a determination of whether the MIG applies. Written submissions and evidence on this preliminary jurisdictional issue were requested and received.

5The applicant submits that the Tribunal has jurisdiction to make a determination of whether the applicant’s impairment is of a nature that is subject to the MIG on a stand-alone basis. The respondent disputes this.

ISSUES IN DISPUTE

6The preliminary issue in dispute before the Tribunal is:

(i) Does the Tribunal have jurisdiction to determine whether the MIG applies in the absence of an underlying dispute relating to entitlement to a benefit which is itself dependent upon a determination of whether the MIG applies?

7If I find that the Tribunal has jurisdiction to do so, then the substantive issue in dispute before the Tribunal is:

(i) Is the applicant’s impairment of a nature that is subject to the MIG?

RESULT

8For the reasons that follow, I find that in the absence of an underlying dispute relating to entitlement to a benefit which is itself dependent upon a determination of whether the MIG applies, the Tribunal does not have jurisdiction to determine whether the MIG applies. This application is therefore dismissed.

ANALYSIS:

PRELIMINARY ISSUE

Does the Tribunal have jurisdiction to determine whether the MIG applies as a stand-alone issue in the absence of an underlying dispute relating to entitlement to a benefit which is itself dependent upon a determination of whether the MIG applies?

9I find that the Tribunal does not have jurisdiction to determine whether the MIG applies as a stand-alone issue for the reasons that follow.

10An administrative tribunal has only the powers conferred on it by statute². Section 5.1(4) of the Licence Appeal Tribunal Act³ states:

“Jurisdiction

(4) The Tribunal has jurisdiction to determine all questions of fact or law that arise in matters before it.”

11Section 280 (1) and (2) of the Insurance Act⁴ states:

“Resolution of disputes

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).”

12The applicant submits that both MIG determinations and catastrophic impairment determinations (“CAT determinations”) are disputes with respect to “the amount of a person’s entitlement to statutory accident benefits”. The applicant submits that the respondent “has maintained the opinion” that the applicant’s impairments fall under the MIG and that the applicant “is being denied medical rehabilitation because of the MIG designation by the Insurer”⁵. The applicant relies on Tribunal decisions⁶ that find that the Tribunal has jurisdiction to make CAT determinations on a stand-alone basis, but does not refer to any decisions in which the Tribunal has found that it has jurisdiction to make a MIG determination on a stand-alone basis. The applicant submits that the reasoning applied in the CAT cases applies equally to the determination of whether the Tribunal has jurisdiction to determine if the MIG applies on a stand-alone basis. The applicant further submits that the Tribunal has jurisdiction to make a MIG determination on a stand-alone basis.

13The respondent argues that, in the absence of a denial of benefits, requesting the Tribunal to determine whether the applicant’s injuries fall outside the MIG is a request for declaratory relief, which, the respondent submits is beyond the Tribunal’s jurisdiction. The respondent also relies on a decision of the Financial Services Commission of Ontario (FSCO)⁷, which held that a CAT determination cannot be made in the absence of a claim for an underlying benefit. Relying on that case, the respondent submits that the Tribunal can only determine whether the MIG applies if there is an underlying claim for a benefit.

14In Aviva v 17-004258/AABS⁸, relied upon by the applicant, the Tribunal referred to section 45 of the Schedule, which specifically entitles an insured person to seek a CAT determination and sets out the procedure to follow in doing so. The Tribunal also notes that there is nothing in the Schedule that requires a claimant to make a claim for a substantive benefit before applying for a CAT determination. In E.K. v. Aviva⁹, a reconsideration of Aviva v 17-004258/AABS, the Tribunal noted the similarity between the procedure set out in the Schedule for the making of a CAT determination and the procedure for claiming a disputed benefit. The Tribunal concluded that section 280 of the Insurance Act is broad enough to include any dispute with respect to entitlement or the amount of benefits, including a dispute arising from a denial of a CAT determination.

15I find that the issue of whether the Tribunal has jurisdiction to determine if the MIG applies as a stand-alone issue is distinguishable from the issue of whether the Tribunal has jurisdiction to make a CAT determination on a stand-alone basis for the following reasons. Based on the wording of section 280 of the Insurance Act, the Tribunal’s jurisdiction is limited to the “resolution of disputes” in respect of statutory accident benefits or the amount of statutory benefits a person is entitled to. The statutory benefits and the amount of statutory benefits a person is entitled to are set out in the Schedule. An insured is entitled to apply for a CAT determination pursuant to section 45 of the Schedule, and a denial of such a determination then gives rise to a dispute that the Tribunal has jurisdiction to decide. There is, however, no provision in the Schedule that entitles an insured to apply for a MIG determination. As there is no entitlement to apply for a MIG determination under the Schedule, a denial of a MIG determination is not a denial of an entitlement under the Schedule that gives rise to a dispute over which the Tribunal has jurisdiction. Although the issue of whether the MIG applies is routinely decided by the Tribunal, the Tribunal decides that issue as a threshold issue in an application where entitlement to benefits provided for in the Schedule is in dispute.

16In the cases where a CAT determination is adjudicated as a stand-alone issue, the CAT determination itself is the entitlement under the Schedule that is in dispute. In this case, as there is no entitlement in the Schedule to the MIG determination sought, there is no dispute in respect of an entitlement to or the amount of any statutory accident benefit. Accordingly, I find that the Tribunal does not have jurisdiction to determine whether the MIG applies in this case as there is no dispute before the Tribunal over which it has jurisdiction.

17In E.K. v. Aviva¹⁰, relied upon by the applicant, the Tribunal found that it has jurisdiction to make a CAT determination as a stand-alone issue. In reaching its decision, the Tribunal disagreed with the earlier FSCO decision in Mandamin¹¹ and concluded that the adjudicator in Mandamin misapplied prior court decisions and failed to apply a jurisdictional analysis in coming to his decision that there is no jurisdiction to make a CAT determination in the absence of a claim for an underlying benefit. The respondent relies upon the decision in Mandamin is support of its position, but makes no comment on the Tribunal’s analysis of that case in E.K. v. Aviva, nor does the respondent comment on Tribunal’s decision in Aviva v 17-004258/AABS¹² not to follow Mandamin. I find the Tribunal’s analysis and conclusions in these two decisions persuasive, and I do not base my decision on the reasoning or result in Mandamin.

18As I have concluded that the Tribunal’s jurisdiction is limited to the resolution of disputes, and as there is no dispute before the Tribunal, I need not consider the respondent’s submissions relating to the Tribunal’s lack of jurisdiction to grant declaratory relief.

SUBSTANTIVE ISSUE

19As I have concluded that the Tribunal has no jurisdiction to determine whether the MIG applies in the absence of an underlying dispute that itself requires a determination of whether the MIG applies, and as there is no such dispute before the Tribunal in this application, the issue of whether the applicant’s impairment is of a nature that is subject to the MIG has not been considered.

ORDER

20I find that in the absence of an underlying dispute relating to entitlement to a benefit which is itself dependent upon a determination of whether the MIG applies, the Tribunal does not have jurisdiction to determine whether the MIG applies. This application is therefore dismissed.

Footnotes

1. 1Minor Injury Guideline, Superintendent’s Guideline 01/14, issued pursuant to s. 268.3(1.1) of the Insurance Act, R.S.O. 1990, C. I.8.
2. 2Preliminary Issue: Written Submissions of the Respondent, Tab 4, Y.D. v. Aviva Insurance, 2017 CanLII 43883 (ON LAT), at paragraph 69.
3. 3Licence Appeal Tribunal Act, S. O. 1999, C. 12, Sch. G.
4. 4Insurance Act, R.S.O. 1990, C. I.8.
5. 5Submissions of the Applicant, dated March 8, 2019, at paragraph 6.
6. 6Submissions of the Applicant (Preliminary Issue), Tab 1 -E.K. v. Aviva Insurance Company, 2018 CanLII 130845 (ON LAT) (Reconsideration Decision of Aviva Insurance Canada v. 17-004258/AABS); Tab 2 - Aviva Insurance Canada v. 17-004258/AABS, 2018 CanLII 39368 (ON LAT); Tab 3 - A. R. v. Allstate, cite 2018 CanLII 8071 (ON LAT). The applicant also relies upon G.P. v. Cumis, 2017 CanLII 22315 (ON LAT) , which does not address this issue.
7. 7Preliminary Issue: Written Submissions of the Respondent, Tab 6, Mandamin and PAFCO Insurance Company, FSCO A14-00905 (2017).
8. 8Aviva Insurance Canada v. 17-004258/AABS, 2018 CanLII 39368 (ON LAT).
9. 9Supra, footnote 6.
10. 10Supra, footnote 6.
11. 11Supra, footnote 7.
12. 12Aviva Insurance Canada v. 17-004258/AABS, 2018 CanLII 39368 (ON LAT).