M.S. v. Unifund Assurance Company, 2020 CanLII 27395

Citation: M.S. vs. Unifund Assurance Company, 2020 ONLAT 18-000715/AABS

Released Date: 04/06/2020

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:

[M.S.]

Applicant

and

Unifund Assurance Company

Respondent

DECISION [AND ORDER]

ADJUDICATOR:

Paul Gosio

APPEARANCES:

For the Applicant:

[M.S.], Applicant

Michelle Arzaga, Counsel

For the Respondent:

Unifund Assurance Company

Paul Belanger, Counsel

HEARD: In Writing

April 29, 2019

OVERVIEW

1The applicant was involved in a motor vehicle accident on October 12, 2016. She received income replacement benefits (“IRBs”) pursuant to Statutory Accident Benefit Schedule – Effective September 1, 2010 (“Schedule”) at the rate of $400.00 per week until they were terminated by the respondent on July 29, 2017.

2The applicant then brought an application before the Licence Appeal Tribunal (“Tribunal”) wherein she sought entitlement to IRBs. The matter was set down for a hearing. Approximately eight days prior to the hearing, the respondent reinstated the applicant’s IRBs and made payment in full of all arrears.

3The applicant now seeks an order from the Tribunal that she was entitled to IRBs so that she can take advantage of the protections laid out in s. 281(1) of the Insurance Act. The respondent takes the position that there is no longer a dispute between the parties over the applicant’s entitlement to IRBs. It argues that, in the absence of a dispute between the parties, the Tribunal lacks jurisdiction to make the order sought by the applicant and lacks jurisdiction over this matter.

RESULT

4The applicant’s request to have the Tribunal adjudicate her entitlement to an income replacement benefit is dismissed since this has been conceded by the respondent.

ANALYSIS

Jurisdiction

5The respondent takes the position that, pursuant to section 280 of the Insurance Act, the Tribunal lost jurisdiction to adjudicate the issue of the applicant’s entitlement to IRBs once it reinstated the benefit and made full payment of all arrears.

6Section 280 of the Insurance Act provides that either the applicant or respondent may apply to the Tribunal to resolve a dispute over entitlement to a statutory accident benefit or the amount of the benefit.

7As Vice Chair Flude stated in J.R. v Primmum Insurance Company, 2018 CanLII 140991 at para. 8:

the Tribunal’s jurisdiction over a matter is determined as of the date upon which the Notice of Application for Dispute Resolution is first filed with the Tribunal. If, at that date, there is a dispute over entitlement to or the quantum of a benefit, then the Tribunal has jurisdiction. If there is not, then the application has no validity and must be dismissed because of a lack of jurisdiction.

8In this case, at the time the application was filed, the issue of entitlement to an income replacement benefit was still in dispute. It was not until after the case conference that the respondent decided to reinstate the applicant’s income replacement benefit and paid all arrears in full. As such, I disagree with the respondent’s submission and find that the Tribunal has jurisdiction over this matter.

9By deciding to pay the applicant an IRB in the amount of $400/week, the respondent has conceded both the applicant’s entitlement to the benefit and the quantum of the benefit. The dispute between the parties with respect to that issue is now at an end.

[Section 281](https://www.canlii.org/en/on/laws/stat/rso-1990-c-i8/latest/rso-1990-c-i8.html#sec281_smooth) of the [Insurance Act](https://www.canlii.org/en/on/laws/stat/rso-1990-c-i8/latest/rso-1990-c-i8.html)

10Having found that the respondent has conceded ongoing entitlement to IRBs, I will address the applicant’s argument that the wording of s. 280 of the Insurance Act allows the Tribunal to make a finding of entitlement in the absence of a denial of the benefit. Section 280 states that the Tribunal has jurisdiction to determine disputes between insurance companies and insured persons over entitlement to or the quantum of benefits.

11The applicant submits that, if I make a finding that she is entitled to IRBs then she will have some measure of protection as the respondent would be unable to unilaterally terminate her benefits on the basis of a future medical examination.

12The respondent characterizes this as a request for declaratory relief and I agree. Section 280 of the Insurance Act must be read in conjunction with section 281. Section 281 gives substance to Tribunal orders. It prohibits insurance companies from reducing benefits ordered by this Tribunal on the basis of alleged changes in circumstances, alleged new evidence or alleged error without either the consent of the insured, a successful appeal of the Tribunal order, or an order from this Tribunal.

13The modern rule of statutory interpretation requires me to examine the language of section 281 of the Insurance Act by examining a plain reading of the language in the section, its context having regard to the purpose of the Insurance Act, and the consequences of the proposed interpretations. As per Smith v Co-operators General Insurance Co., 2002 SCC 30, [2002] 2 SCR 129, the Schedule and Insurance Act are consumer protection legislation and, as such, must be read liberally. A plain reading of s. 281 of the Insurance Act suggests that the section is intended to give an insured person procedural protection once the Tribunal issues a decision to ensure that an insurer cannot reduce benefits unless on consent, successful appeal or order of the Tribunal. The language clearly contemplates the protection afforded to those situations where the Tribunal has made a decision. I do not find any ambiguity in terms of the application of section 281 of the Insurance Act.

14In this case, there is no Tribunal decision as the respondent reinstated the applicant’s income replacement benefit prior to the commencement of a hearing. The dispute between the parties with respect to that issue is now at an end. Making a determination on the issue of the applicant’s entitlement to an IRB benefit would be a misapplication of the Tribunal’s resources.

CONCLUSION

15Having considered the submissions of the parties and the evidence filed, I order that:

i. the applicant’s request to have the Tribunal adjudicate her entitlement to an income replacement benefit is dismissed as this has been conceded by the respondent;

ii. This order is without prejudice to the applicant’s right to bring any future denial of IRBs to the Tribunal.