Harsanyi v. The Co-operators General Insurance Company, 2021 CanLII 35592

Citation: Harsanyi v. The Co-operators General Insurance Company, 2021 ONLAT 20-001245/AABS

Release date: 04/28/2021

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:

Zsolt Harsanyi Applicant

and

The Co-Operators General Insurance Company Respondent

DECISION AND ORDER

ADJUDICATOR: Avril A. Farlam

APPEARANCES:

For the Applicant: Mitchell Kent, Paralegal

For the Respondent: Laura Emmett, Counsel

HEARD: By way of written submissions

OVERVIEW

1Zsolt Harsanyi (“applicant”) was injured November 23, 2018. The applicant sought various benefits including an income replacement benefit (“IRB”) pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the ''Schedule'').¹

2The Co-Operators General Insurance Company (“respondent”) denied the applicant’s claims for benefits. The respondent’s position is that the applicant is barred from proceeding with his claim for an IRB because he was allegedly driving the automobile at the time of the accident without a valid driving licence.

3The applicant disagreed with the respondent’s decision and submitted an application to the Licence Appeal Tribunal – Automobile Accident Benefits Service (Tribunal).

4On October 7, 2020 the Tribunal ordered, on consent of both parties, that the preliminary issue below be heard in writing before the substantive issues set out in the Order.

PRELIMINARY ISSUE

5The preliminary issue to be decided is:

i. Is the applicant’s claim for an IRB barred pursuant to s. 31 of the Schedule?

RESULT

6The applicant’s claim for an IRB is barred pursuant to s. 31 of the Schedule.

LAW

7An applicant’s entitlement to an IRB is subject to the exclusions set out in s. 31 (1) of the Schedule including s. 31(1)(a)(ii) which provides that an insurer is not required to pay an IRB to a driver if the driver was driving the automobile without a valid driver’s licence.

8The onus is on the insurer which seeks to bring itself within an exclusion in s. 31.

ANALYSIS

Was the Applicant Driving the Automobile Without a Valid Driver’s Licence?

9It is not in dispute that the applicant was driving with a suspended licence when involved in the accident² and I so find.

10However, the applicant submits that he was making full effort to pay down his outstanding fine but missed a deadline to extend repayment of the fine and as a result, the applicant’s licence was suspended following which the applicant did not receive notice under s. 52(1) of the Highway Traffic Act, R.S.O. 1990, c. H.8 and was unaware of his licence being suspended until after the accident. The applicant submits he was unknowingly driving with a suspended licence, needs an IRB and therefore the Tribunal should take a broad liberal interpretation of the Schedule as indicated in Sorokin v. The Wawanesa Mutual Insurance Co.³, allow a defence of due diligence as the court does regarding a charge of driving with a suspended licence,⁴ and grant relief against penalties and forfeiture under s. 98 of the Courts of Justice Act.⁵

11The respondent submits that the applicant has: (a) offered no evidence in support of his position that the defence of due diligence should apply; (b) even if the applicant’s position was accepted it does not amount to a defence of due diligence; (c) the defence of due diligence is not applicable; and (d) the Tribunal does not have the authority to grant relief from forfeiture.

12I find that whether or not the applicant knew or ought to reasonably have known his driver’s licence was invalid at the time of the accident, or whether the applicant has a defence of due diligence is not relevant to the application of s. 31(1)(a)(ii) of the Schedule for the following reasons.

13Firstly, the applicant submitted no evidence in support of his position except a 2019 printout showing $13,460.25 owing for the fine and a post-accident OCF-3, disability certificate.

14Secondly, even if the applicant had been able to establish his submissions with evidence, which I find he has not, the applicant’s legal arguments are unpersuasive.

15Here, no broad and liberal interpretation of s. 31(1)(a)(ii) of the Schedule is warranted as in the Sorokin case in which the Court considered the starting date for payment of interest on benefits. In this case, the starting point for statutory interpretation is to consider the plain meaning of the words of the section within the legislative context. If there appears to be ambiguity in the wording, the Tribunal may consider other sources.⁶ I find no ambiguity in the wording of s. 31(1)(a)(ii) which clearly states that an applicant is not entitled to claim an IRB if at the time of the accident the driver was driving the automobile without a valid driver’s licence.

16There is no criminal offence at issue here and therefore the case of R. v. Montgomery is not helpful. The Schedule does not provide that driving an automobile without a valid driver’s licence is an offence, criminal or otherwise, but simply states that doing so relieves the insurer from paying an IRB.

17The wording of s. 31(1)(a)(ii) does not provide for a defence of due diligence or any other defence or explanation including the driver’s knowledge that his licence was not valid. I decline to impose a “knew or ought reasonably to have known” requirement upon s. 31(1)(a)(ii) given the clear wording of the section and given that a knowledge requirement is expressly provided for elsewhere in s. 31(1)(a), specifically in ss. 31(1)(a)(i) and (iv). The Legislature clearly turned its mind to the knowledge issue and decided not to include it for a driver driving an automobile without a valid driver’s licence. I agree with the view expressed by the Tribunal in an earlier case that establishing the driver of the automobile did not hold a valid driver’s licence at the time of the accident is sufficient for s. 31(1)(a)(ii) to apply.⁷

18The applicant’s submissions concerning the Courts of Justice Act and the Kozel case are not helpful here. The Tribunal is not a Court and cannot grant relief under s. 98 of the Courts of Justice Act as the Court did in Kozel.

19In this case, the applicant does not dispute that at the time of the accident he did not hold a valid driver’s licence. Whether the applicant knew this or not is not relevant for the purposes of s. 31(1)(a)(ii) of the Schedule. The respondent has met its onus of proof.

ORDER

20For the reasons above, the applicant’s claim for an IRB is barred pursuant to s. 31 of the Schedule.

21Within 30 days of the release of this Decision, the parties are to contact the Tribunal to schedule an additional case conference to address the remaining substantive issues in dispute as set out in paragraph two of the Tribunal’s Order made October 7, 2020.

Footnotes

1. 1O.Reg. 34/10
2. 2Applicant’s Submissions filed November 23, 2020, para 2.
3. 3Sorokin v. The Wawanesa Mutual Insurance Co., 2008, CanLII 26265 (ON SC) at para 26.
4. 4R. v. Montgomery, 2006 ONCJ 203 , paras 11-12. Kozel v. The Personal Insurance Company, 2014 ONCA 130 (“Kozel”).
5. 5Courts of Justice Act, R.S.O 1990, c. C.43.
6. 616-000024 v. Economical Mutual Insurance Company, 2016 CanLII 106912 (ON LAT), para 6.
7. 7Ibid, para 8.