PRELIMINARY ISSUE DECISION
In the matter of an application pursuant to subsection 280(2) of the insurance act, rso 1990, c i.8 (“insurance act”), in relation to statutory accident benefits.
Between:
T. K.
Appellant
and
Allstate insurance
Respondent
Adjudicator: Matthew M Létourneau
Appearances:
For the appellant: Sylvia Guirguis, Counsel
For the respondent: Peter Yoo, Counsel
Heard: in writing: February 18, 2019
OVERVIEW
1The applicant was involved in an automobile accident on February 21, 2017, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the ''Schedule'') . The applicant was denied certain benefits by the respondent and submitted an application to the Licence Application Tribunal - Automobile Accident Benefits Service (“Tribunal”).
2The applicant’s application for accident benefits was submitted on July 27, 2018. The applicant states that there have been delays in advancing this matter since then which have led him to incur expenses for medical treatment. Thus, he sought an interim order for payment of interim benefits by the respondent to mitigate the health risks caused by these delays in payment.
3The respondent took the position that the Tribunal does not have the jurisdiction to award interim benefits, contrary to the previous practice of allowing interim benefits under the Financial Services Commission of Ontario (“FSCO”) regime.
ISSUES
4The issues in this preliminary issue decision are twofold:
i. Does the Tribunal have jurisdiction to award interim benefits? and
ii. If so, how ought the Tribunal exercise any such discretionary power it may have regarding interim benefits in this matter.
RESULT
5The Tribunal does not have the jurisdiction to award interim benefits. This lack of jurisdiction makes a determination on the extent of discretion moot and the second issue, above, is dismissed.
6The second part of the preliminary issue was scheduled to be dealt with in-person on April 4, 2019 if jurisdiction is found in the first part. On consent, the in-person hearing date of April 4, 2019 regarding the preliminary issue was vacated by a motion decision of April 1, 2019. As ordered by the Tribunal on January 24, 2019, the substantive issues in this matter will proceed to the hearing scheduled from June 24 to 28, 2019 in Toronto.
ANALYSIS
Lack of Jurisdiction on Interim Benefits
7The applicant raised the issue of interim benefits due to there being over a year between the date of his application for accident benefits and the in-person hearing. As of January 2019, the applicant claims that he has incurred attendant care services in the amount of $18,025.00, as well as medical treatment in the amount of $9,751.24. The applicant states that this financial exposure is creating a high risk that he will not receive adequate care before the Tribunal finally determines his entitlement to the substantive benefits claimed.
8To address this preliminary issue, I must first determine whether the Tribunal has jurisdiction to make this order. The Tribunal’s power to issue this type of order is not explicitly set out in the Insurance Act, the Schedule, the Licence Appeal Tribunal Act, 1999, SO 1999, c 12, sched G (“LAT Act”) or any other authority to which I have been directed.
9The jurisdiction to order interim benefits under the Schedule was previously addressed in Adjudicator Hines’s decision in Sarpong v State Farm Insurance, 17-007152/AABS (“Sarpong”). In short, Adjudicator Hines concluded that the Tribunal does not have jurisdiction to award interim benefits unless a regulation is adopted by the legislature pursuant to the Insurance Act, being the legislation from which the Tribunal’s mandate is derived. The legislature can regulate interim orders further to ss. 280(5) and (6) of the Insurance Act, but this option has not been exercised at the time of this hearing as it relates to interim benefits specifically. Given the decision in Sarpong and for the following reasons, I find that the Tribunal lacks the jurisdiction to award interim benefits.
10The applicant maintains that the statutory accident benefits framework provides broad and, ultimately, sufficient jurisdiction to make a discretionary interim order for benefits. He focuses his argument on the following:
i. The applicant points to the previous practice under the FSCO regime on accident benefits that provided for a general discretionary power of making “interim orders” pursuant to (the now repealed) s. 279(4.1) of the Insurance Act;
ii. He also relies on s. 16.1 of the Statutory Powers Procedure Act, R.S.O. 1990, c.S.22 (“SPPA”), which permits interim decisions and orders by a Tribunal with a view of ensuring a just, expeditious and cost-effective determination of every proceeding;
iii. Finally, the applicant asserted the alternative argument in reply that s. 3(2) of the LAT Act — which specifies that the Tribunal “has all the powers that are necessary or expedient for carrying out its duties” — provides authority to grant equitable relief or to make substantive interim orders, including for interim benefits.
11The respondent’s rebuttal states that s. 279 (4.1) of the Insurance Act—which was put into practice through Rule 67 of FSCO’s Dispute Resolution Practice Code—was repealed and, thus, there is now no authority in the Insurance Act to make substantive interim orders on benefits pending a final hearing. Further, the respondent states that, at present, ss. 280(5) and (6) limit the use of any discretionary powers to those set out in regulation adopted by the legislature and only for specific types of interim orders. Therefore, the respondent shares the view stated in Sarpong that there is no jurisdiction in the absence of an applicable regulation regarding interim benefits orders. The respondent also submits that s. 16.1 of the SPPA is insufficient on its own to grant the Tribunal the authority to make substantive interim orders, as this power’s intent is to allow discretionary power to make interim procedural orders, rather than substantive ones. The respondent claims that its right to a fair hearing would be negatively impacted without specific regulation on interim benefits, as there is no defined test in the legislation or regulations, which would prevent the insurers from making a full answer or defence. (See, e.g., Arzem v. Ontario (Ministry of Community & Social Services), 2005 HRTO 11).
12I conclude that the crux of this issue is resolved in deciding how the Tribunal’s current powers under s. 280(5) and (6) of the Insurance Act—modified pursuant to Bill 171, Fighting Fraud and Reducing Automobile Insurance Rates Act, 2014 (“Bill 171”)—are to be interpreted with a view to the act’s purpose and legislative and procedural context.
13My interpretation does not allow me to accept that a broad and discretionary grant of power stands for a specific grant in all cases. I agree with the applicant that the Tribunal’s jurisdiction must be interpreted with a view to the context and purpose of its enabling legislation and the legislative framework at play, which prioritizes consumer protection and fairness, among other things. However, in this case, there have been specific changes to the Insurance Act that clearly show the legislator’s intention to have restrained the Tribunal’s jurisdiction.
14The applicant’s argument is essentially to say that the powers to award interim benefits exist from the grant of discretionary powers found in the legislative framework discussed above. The applicant further states that this discretionary power should be used where justice would be denied by not hearing a motion seeking interim benefits. The applicant made analogy to other regimes, for example, by point to the Tribunal’s decision in Vice-Chair Flude and Member Treksler’s decision of 9897 v Director, Child Care and Early Years Act, 2015 CanLII 81692 (Ont. LAT). In that case, an interim stay of proceedings was granted further to the power found at s. 2 of the SPPA which holds that the Tribunal, “has all of the powers necessary to ensure a just outcome in any proceeding”, which in turn allowed it to order an interim stay where justice would otherwise be denied and to ensure a just, cost-effective and expeditious resolution.
15However, in this case, a review of the legislative framework reveals that the Tribunal’s discretion is limited. The Tribunal’s powers to make orders with a view to resolving the applicant’s dispute are limited to what is provided for in the Insurance Act and the Schedule. Section 280(4) of the Insurance Act states specifically that, “the dispute shall be resolved in accordance with the Statutory Accident Benefits Schedule”.
16More specifically, as discussed in Sarpong, the Insurance Act was modified and, as a result, s. 280(6) now states that “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 Schedule.”
17While the Tribunal may have general discretion in some areas, the clear and plain language of the Insurance Act on the specific point of interim orders on amounts not found in the Schedule is limiting in this matter. The intention is clearly to bar the Tribunal from reading in a substantive provision on other amounts and carves this out for the legislature via regulation to this effect. This clearly limits the Tribunal’s general discretion from what existed under the FSCO regime to what it is currently.
18As such, I find that interim benefits are not amounts to which a party is entitled under the Schedule. To find otherwise would require this Tribunal to read-in a threshold test for interim benefits as well as set amounts for interim benefits that are not set out anywhere in the Schedule and which explicitly require regulation. The Tribunal is barred from this exercise as this is assumed by the legislature pursuant to the Insurance Act.
19I do not accept the applicant’s submission that authority for awarding substantive interim benefits flows from either the Insurance Act, the SPPA, the LAT Act or the Schedule, even when read in conjunction with the legislative and procedural framework for accident benefits as claimed by the applicant in his submissions.
20In finding that interim benefits to be regulated pursuant to the Insurance Act, the Tribunal is restricted in its discretion. This is distinguishable from the Tribunal’s discretion regarding other grants of discretion, such as those set out in the Licence Appeal Tribunal, Animal Care Review Board, and Fire Safety Commission Common Rules of Practice and Procedure, Version 1 (October 2, 2017) (“the LAT Rules”). The Tribunal may make rules to govern its own practices pursuant to s. 25.1 of the LAT Act. In some cases, this allows for certain types of discretionary interim orders. Specifically, there can be rules on extending time limitations (s. 7 of the LAT Act). There is also discretion for how to award costs (s. 8 of the LAT Act). The practices around these discretionary powers can be set out in the rules, as long as those rules are consistent with the SPPA and other statutes.
21The difference regarding interim benefits is that they are not specifically mentioned anywhere in the LAT Act or elsewhere to provide clarity on the legal criteria for awarding interim benefits. This differs from, for example, awards regarding time limitations and costs, which have specific criteria set out in the LAT Act. I also must consider that the LAT Act states that rules are not regulations (ss. 25.1(5) of the LAT Act). Interim benefits cannot be set out by the Tribunal’s rules alone. The legislator clearly requires a regulation. Such regulation does not exist at this time and I interpret this to mean that the Tribunal cannot read in any discretionary power on the issue of interim benefits as this constitutes a type of benefit that is not foreseen by the Schedule and which falls under the purview of s. 280(4) of the Insurance Act.
22It bears mentioning that the applicant’s interpretation of the legislative framework does show that regulation on interim benefits would indeed coincide with the purpose and context of the Schedule, but it is not the role of the Tribunal to set the substantive thresholds and legal criteria on this issue. In other words, the Tribunal lacks the jurisdiction to make substantive interim benefits awards, as requested in this matter.
23Should the applicant believe that there is an urgent need for a hearing, parties are encouraged to request expedited hearing dates rather than attempting to schedule secondary hearings on an interim basis. An interim order for an expedited hearing is of a procedural nature that clearly falls within the jurisdiction of the Tribunal and respects the principle of ensuring a just, expeditious and cost-effective determination of the proceeding.
CONCLUSION
24I find that the legislature has not specifically regulated interim benefits orders. This leaves the Tribunal with no jurisdiction to award interim benefits.
ORDER
25This preliminary issue hearing is dismissed in its entirety.
Released: May 16, 2019
Matthew M. Létourneau
Adjudicator