A.H. v. Unica Insurance Inc.
RECONSIDERATION DECISION
Before: Kate Grieves, Adjudicator
Tribunal File Number: 18-012320/AABS
Case Name: A.H. v. Unica Insurance Inc.
Written Submissions by:
For the Applicant: Stephen Birman, Counsel Ava N. Williams, Counsel
For the Respondent: Angela Comella, Counsel
OVERVIEW
1The applicant’s request for reconsideration arises from a decision in which the sole issue in dispute was whether the applicant was employed at the time of the accident, and therefore entitled to receive a weekly income replacement benefit of $185.00 per week from January 2, 2019 to date and ongoing.
2In the year prior to the accident the applicant was a stay-at-home parent and was taking online classes. Ten days prior to the accident, on December 23, 2016 the applicant was hired at a new job, scheduled to start on January 16, 2017. Before he could start work, the applicant was involved in an accident on January 2, 2017. The accident claimed the lives of his wife and son, and the applicant sustained catastrophic injuries.
3The sole issue in the original written hearing was whether the applicant was “employed” at the time of the accident, and therefore eligible for income replacement benefits under s. 5(1) of the Statutory Accident Benefits Schedule – Effective September 2010 (“Schedule”).
4I concluded that the applicant was not employed at the time of the accident and was not entitled to income replacement benefits. The applicant has requested that I reconsider this decision.
RESULT
5The applicant’s request for reconsideration is dismissed.
ANALYSIS
6Rule 18.2 of the Licence Appeal Tribunal, Animal Care Review Board, and Fire Safety Commission Common Rules of Practice and Procedure, Version I (October 2, 2017) as amended (“Rules”) states that a request for reconsideration will not be granted unless one or more of the following criteria are met:
a. The Tribunal acted outside its jurisdiction or violated the rules of procedural fairness;
b. The Tribunal made an error of law or fact such that the Tribunal would likely have reached a different result had the error not been made;
c. The Tribunal heard false evidence from a party or witness, which was discovered only after the hearing and likely affected the result; or,
d. There is evidence that was not before the Tribunal when rendering its decision, could not have been obtained previously by the party now seeking to introduce it, and would likely have affected the result.
7The applicant has the burden to satisfy the Tribunal that the request for reconsideration should be granted because one or more of the above criteria are met.
8The applicant submits that reconsideration should be granted pursuant to Rule 18.2 because the Tribunal made the following errors of law:
a. The Tribunal rejected the principle of stare decisis;
b. The principles of statutory interpretation as defined by the Supreme Court of Canada were not followed; and,
c. The decision is inconsistent with the consumer protection aims of the Schedule.
9I am not persuaded by the applicant’s arguments that there was any error of law in rendering this decision. The applicant may disagree with the Tribunal’s assessment but there is no basis to interfere with the decision.
Stare Decisis
10The applicant submits that the Tribunal disregarded applicable case law from the Ontario Court of Appeal. In his original submissions, the applicant cited a 1979 decision from the Ontario Court of Appeal, Sansone v State Farm Mutual Automobile Insurance Co. and a 1982 Ontario Supreme Court decision Lamb v State Farm, that held that the phrase “employed at the date of the accident” should be interpreted to include persons under a contract of employment. The applicant submits that I did not distinguish the Court of Appeal case law in my decision, simply stating that it was “almost 40 years old” and “not particularly helpful”.
11At paragraph 11 of the decision I considered the case law, and noted that the legislation had changed significantly since those decisions were released. I further discussed these significant legislative changes at paragraph 14 of the decision. Lamb involved interpretation of the Insurance Act RSO 1970, and whether the applicant was employed. This is not the legislation before the Tribunal. As noted at paragraph 14 of the decision, the Statutory Accident Benefits Schedule prior to 2004 distinguished between individuals who were employed at the time of the accident and those who were entitled to start work under contract of employment made before the accident. The legislature subsequently removed the language including prospective or future employment from the applicable Schedule.
12It would be inappropriate to follow cases under different legislation which contradicts the scope of eligibility contemplated by the legislature. At paragraph 14, “I find it significant that the legislature had explicitly contemplated and made allowance for this situation in the past but then explicitly continued to exclude that category of eligibility for individuals with contracts of future employment since 2004”.
13There was no disregard for applicable case law. The cases submitted by the applicant are distinguishable. There was no error of law.
Principles of Statutory Interpretation
14The applicant submits that it was an error to refer to earlier versions of the Schedule because reference to earlier legislation in interpreting a statute may only be invoked where the language is ambiguous.
15The applicant relies on my statement that the meaning of “employed at the time of the accident” is unambiguous in paragraph 15 of my decision to argue that, given I found the meaning of this phrase to be unambiguous, it was improper for me to consider previous versions of the Schedule to interpret its meaning. I do not accept the applicant’s argument, because, and as clearly stated in the same sentence of paragraph 15, I determined the meaning of this phrase was clear (i.e. unambiguous) only after I considered a number of relevant interpretative factors, including the previous versions of the Schedule. That is to say, my statement that the meaning of this phrase was unambiguous was not a starting point but a conclusion. I was required to interpret the meaning of this phrase in accordance with the modern rules of interpretation as described by the Supreme Court and as cited in paragraph 12 of my decision. It was proper and necessary for me to consider the previous versions of the Schedule in interpreting the meaning of “employed at the time of the accident”.
Inconsistent with Consumer Protection
16The applicant notes that earlier versions also carved out entitlement for striking workers and those on parental or unpaid leave. The applicant submits that, based on my interpretation, the failure to include those sections in the current Schedule would mean that those persons on pregnancy or parental leave, disability or locked out of employment would be excluded from receiving benefits. The applicant submits that one of the main objectives is consumer protection, and to restrict the definition of “employed at the time of the accident” would add to economic dislocation and hardship of accident victims like the applicant, in a manner inconsistent with the scheme and object of the Schedule.
17As noted by the respondent, the applicant’s concern that this decision would have a deleterious effect on those on parental or other leaves is unfounded and an inaccurate characterization of the Schedule, as many of those individuals do in fact qualify for benefits under s. 5(1(ii)(A). Those individuals have different circumstances than those with contracts for future employment. Regardless, those circumstances were not before me and I made no findings in that respect. Additionally, I considered a number of factors before determining the definition of “employed at the time of the accident” does not include individuals with contracts for future employment. I did not rely solely on the removal of “enforceable employment contract” language from the current version of the Schedule in coming to that conclusion, as the applicant appears to be implying. Furthermore, the applicant received a non-earner benefit paid in accordance with the Schedule to the statutory limit.
18While I agree that consumer protection is one of the main objectives of the Schedule, this objective does not authorize me to read in entitlements that are not present in the Schedule. In my view, and for the reasons set out in my decision, the definition of “employed at the time of the accident” does not include individuals with contracts for future employment. I appreciate that the applicant has suffered a terrible loss as a result of this accident. However, the applicant’s sympathetic circumstances do not constitute a basis to read in eligibility for individuals with contracts for future employment, or to otherwise depart from the Schedule.
CONCLUSION
19The applicant has not established that the Tribunal made any error of law in reaching its decision. For the reasons noted above, the applicant’s request for reconsideration is dismissed.
Kate Grieves, Adjudicator Tribunals Ontario - Licence Appeal Tribunal
Released: May 28, 2021