Release date: 10/07/2021
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:
Syed Gilani
Applicant
and
Travelers Insurance Company of Canada
Respondent
MOTION DECISION
ADJUDICATOR:
Paul Gosio
APPEARANCES:
For the Applicant:
Joseph Campisi and Ashu Ismail, Counsels
For the Respondent:
Christopher Schnaar, Counsel
HEARD in writing:
May 25, 2021
OVERVIEW
1The applicant was injured in an automobile accident on December 4, 2015 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 Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”).
2A hearing by way of videoconference began on March 9, 2021. One of the main issues in dispute is whether the applicant is catastrophically impaired pursuant to the Schedule. The applicant then brought a motion requesting interim benefits in order to maintain his health and safety during the adjournment of the hearing.
3The respondent submits that the Tribunal does not have the jurisdiction to award interim benefits given the powers conferred to it by the Legislature under the Insurance Act1 (“Act”).
4This Motion Decision deals with the relief sought. I have considered the submissions of the parties and the materials relied upon in support of those positions.
RESULT
5The applicant’s motion for interim benefits is dismissed.
DISCUSSION
The Applicant’s Position
6The applicant’s seeks an Order from the Tribunal with respect to the payment of the following interim benefits:
i. Attendant care benefits at $6,000 per month; ii. Medical and rehabilitation benefits to cover the cost of his current rent; iii. Medical and rehabilitation benefits to cover the cost of his current psychological treatment; and iv. Medical and rehabilitation benefits for any other reasonable and necessary treatment until such time as the dispute currently before this Tribunal is resolved.
7The applicant submits that the Tribunal has now received evidence of the following:
i. It is now approximately two-and-a-half years since the applicant was denied the benefits in dispute; ii. The respondent has delayed providing the applicant with their catastrophic impairment reports for 7 months; iii. The respondent delayed providing the applicant with their Post-104 Income replacement benefits report for approximately 9 months; iv. The dispute resolution process at this Tribunal has been ongoing for nearly 2 years; v. The applicant’s condition has deteriorated such that he is reporting suicidal thoughts, he has been arrested and charged with Assault With a Weapon against his daughter and his family is afraid of him. The applicant submits that as a result of this, the respondent has temporarily approved payment of attendant care benefits at the rate of $6,000 per month despite their position that he is not catastrophically impaired; vi. The respondent is currently funding the applicant’s place of residence separate from his family; vii. The applicant is contemplating suicide by jumping off his balcony, slitting his throat, or returning to his family and getting into an altercation with the police, and “suicide by cop”; and viii. The temporary funding provided by the respondent for the applicant to have a place to live, and receive attendant care, is about to expire.
8The applicant submits that as a result of the above, it is imperative that the applicant secure interim benefits to ensure he receives the required care to prevent him from endangering his life, health, family, or members of the public, before a decision is reached by this Tribunal.
9The applicant submits that the Tribunal has authority to award interim benefits and makes the following arguments in support of his position:
i. The Act provides this Tribunal with broad jurisdiction to deal with any type of dispute “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.”2 ii. The Legislation Act requires interpretation in such a way as to ensure this Tribunal has all of the powers required to resolve accident benefits claims disputes between insured persons and insurers. As such, this Tribunal clearly has jurisdiction to deal with disputes over the temporary provision of benefits. iii. The Statutory Powers Procedure Act (“SPPA”) specifically grants this Tribunal the authority to make interim decisions and orders, and to impose conditions on those decisions and orders.3 iv. The Licence Appeal Tribunal Act (“LAT Act”) specifically grants this Tribunal “all the powers that are necessary or expedient for carrying out its duties”, “Except as limited by this Act.”4 v. No section of the LAT Act limits this Tribunal’s power to make substantive interim Orders, particularly interim Orders for payment of benefits. vi. The applicant argues that it would be a mistake for the Tribunal to repeat its position as set out in T.K. v. Allstate5. The applicant submits that the Tribunal’s acceptance of Allstate’s argument that section 16.1 of the SPPA is intended only to allow the Tribunal the discretionary power to make procedural orders rather than substantive ones ignores the plain wording of section 16.1 and the full context of the SPPA, the Act, and the Tribunal Act. The Tribunal’s restrictive interpretation adopted in T.K. v. Allstatewould result then in this Tribunal having no authority to make Orders other than lump sum award Orders as no authority is provided for in the Regulations under the Insurance Act. vii. Furthermore, the applicant submits that his case is one where his life and the lives of others are at risk such that it would demand interim benefits as suggested by the the Divisional Court in T.K. v. Allstate. The applicant suggests that the plain wording of section 16.1 of the SPPA allows the tribunal may make interim decisions and orders, and may impose conditions on same without restriction. viii. The applicant finally submits that In order for this Tribunal to fulfil its purpose and to operate as it has over the last 5 years, it must be that this Tribunal’s powers to make substantive orders stems from the general authority granted by sections: a. 16.1 of the SPPA; and s. 3 of the LAT Act.
Principles of Statutory Interpretation
10The Supreme Court of Canada has outlined the approach one should take when issues of statutory interpretation arise. This “modern approach” has been outlined in numerous Supreme Court of Canada decisions, including Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42 at para 26, citing the Construction of Statutes (2nd ed 1983) at page 87:
Today there is only one principle or approach, namely, the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament.
11One of the essential objectives of this approach is to avoid absurd results. The Supreme Court of Canada has explained that an absurd result can include interpretations which lead to "ridiculous or frivolous consequences". In Rizzo & Rizzo Shoes Ltd. (Re), 1998 CanLii 837 (SCC) at para 27, the Supreme Court of Canada stated:
… It is a well established principle of statutory interpretation that the legislature does not intend to produce absurd consequences. According to Cote, supra, an interpretation can be considered absurd if it leads to ridiculous or frivolous consequences, if it is extremely unreasonable or inequitable, if it is illogical or incoherent, or if it is incompatible with other provisions or with the object of the legislative enactment…
12Ayr Farmers Mutual Insurance Company v Wright, 2016 ONCA 789 at para 27 confirms that the rules governing statutory interpretation apply equally to regulations such as the Schedule.
13Ontario's Legislation Act, 2006, SO 2006, c 21, Schedule F, s. 64(1) provides additional guidance on statutory interpretation, requiring that legislation be given a "liberal interpretation".
14Recent amendments to a particular statute or regulation may aid in discerning the intention of Parliament for the purposes of a statutory interpretation analysis.
Jurisdiction
15The jurisdiction of a tribunal must be found within a statute or regulation. As a statutory tribunal, the LAT can only exercise power delegated to it by or under its enabling legislation.6 The power for the Tribunal to issue an order for interim benefits is not provided for in the Act, the Statutory Accident’s Benefits Schedule – Effective September 1, 2010 (the “Schedule”), nor the License Appeal Tribunal Act (“LAT Act”). In the absence of an applicable regulation regarding interim benefits orders, the Tribunal has no jurisdiction to make such an order.
Legislative Intent
16Previously, s. 279 (4.1) of the Act, which was repealed on April 1, 2016, gave Financial Services Commission of Ontario (“FSCO”) arbitrators the following authority: “The Director and every arbitrator appointed by the Director may make interim orders pending the final order in any matter before the Director or arbitrator.” 14. Contrary to the previous practice of allowing interim orders under FSCO, s.280 (5) and (6) of the Act currently states that regulations may provide for and govern certain orders relating to applications filed at the LAT after April 1, 2016: (5) The regulations may provide for and govern the orders and interim orders that the Licence Appeal Tribunal may make and may provide for and govern the powers and duties that the Licence Appeal Tribunal shall have for the purposes of conducting the proceeding.
17The Legislature deliberately removed provisions relating to interim orders previously found in the Act. As adjudicator Hines noted in 18-001406 v. Certas Home and Auto Insurance Company:
FSCO arbitrators had the power to grant interim benefits under s.279 which was also repealed when the LAT was granted jurisdiction over accident benefit disputes. To date this power has not been conferred to the LAT
18Deliberate amendments to the Act in 2016 restricted adjudicators’ powers to make an interim order. S. 280(5) specifically contemplates regulations to provide for interim orders, however, there are no such regulations currently in force. Legislators intentionally limited the Tribunal’s jurisdiction to grant orders for interim benefits without a regulation first being adopted.
S.16.1 Statutory Powers Procedure Act
19The SPPA should not be interpreted so broadly, that the transparent act of limiting the Tribunal’s discretionary powers would be overlooked. The purpose of the SPPA is to provide a framework for hearings. As its title indicates, it is about procedures and not substantive powers of tribunals.
20The intent of s.16.1 of the SPPA is to allow discretionary power to make interim procedural orders, rather than substantive ones. A liberal interpretation of the SPPA must not override the intent of an enabling statute. This issue was addressed by Adjudicator Létourneau in T.K. v. Allstate7:
In 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.
The 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 7 that is not foreseen by the Schedule and which falls under the purview of s. 280(4) of the Insurance Act.
21To suggest s.16.1 provides the Tribunal with broad discretionary power to order interim benefits would not be consistent with other legislation indicating that such powers do not exist.
22I would also note that the court in 2019 CanLII 63379 (ON LAT) at para 20-21 .K. v. Allstate did not comment on what would constitute a proper case for awarding interim benefits, nor on the LAT’s jurisdiction to do same.
ORDER
23For the reasons articulated above, I have dismissed the applicant’s motion.
Released: October 7, 2021
_____________________
Paul Gosio, Adjudicator
Footnotes
- Insurance Act, RSO 1990, c I.8
- Insurance Act, RSO 1990, c I.8, ss.279, 280
- Statutory Powers Procedure Act, RSO 1990, c S.16.1
- Licence Appeal Tribunal Act, 1999, SO 1999, c 12, s.3
- Khan v. Allstate Insurance Company of Canada, 2020 ONSC 3578
- 16-001810 v Aviva Insurance, 2017 CanLII 43883 (ON LAT) at para 69
- 2019 CanLII 63379 (ON LAT) at para 20-21