Bobak v. Travelers Insurance, 2022 CanLII 146

Bobak v. Travelers Insurance, 2022 CanLII 146

Citation: Bobak v. Travelers Insurance, 2022 ONLAT 21-004004/AABS

Licence Appeal Tribunal File Number: 21-004004/AABS

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:

Bogdana Bobak

Applicant

and

Travelers Insurance

Respondent

MOTION DECISION

ADJUDICATOR:

Chloe Lester

APPEARANCES:

For the Applicant:

Bogdana Bobak, Applicant

Ryan Marinacci, Counsel

For the Respondent:

Caroline Meyer, Counsel

Held by Teleconference:

December 14, 2021

BACKGROUND

1This proceeding concerns a dispute between the applicant and the respondent about automobile insurance benefits under the Statutory Accident Benefits Schedule – Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”) arising out of a motor vehicle accident on September 16, 2017.

2The issue in dispute before the Tribunal¹ is whether the applicant sustained injuries that fall within the definition of the Minor Injury Guideline (MIG).

3Prior to the case conference, the respondent filed a motion to dismiss the application without a hearing on the basis that the appeal relates to matters that are outside the Tribunal’s jurisdiction.²

4The merits of the motion were scheduled to be heard at the case conference on December 14, 2021.

5At the onset of the motion hearing, the applicant opposed the inclusion of the reply submissions filed by the respondent on the basis that the submissions were filed outside the timelines prescribed by the Tribunal’s Rules. The applicant argues that all supporting materials are to be filed with the Notice of Motion. The applicant also argues that there is no right of reply in a motion hearing and the timelines prescribed by the Tribunal for submissions also did not include an opportunity for reply.

6The respondent argues that the reply submissions were necessary based on the submissions of the applicant and their arguments regarding statutory interpretations. The respondent argues that the submissions were not new but in response to the applicant’s submissions.

7I agree with the applicant. The respondent’s reply written submissions will not be considered. The respondent ought to have provided all supporting materials in the Notice of Motion pursuant to Rule 15.2 of the Tribunal’s Rules. When the Tribunal issued its acknowledgment letter to hear the motion at the case conference, it did not allow for reply submissions. Therefore, the Tribunal intended the merits of the motion to be heard based on the initial and responding submissions.

8At the case conference, I heard oral submissions on the motion.

9The respondent argues that the Tribunal does not have jurisdiction to hear this matter as the MIG is not a benefit and it is the only issue in dispute listed on the application. The respondent relies on three cases where the MIG was not decided as it was not tied to any benefits in dispute.³ The respondent agrees with the applicant that this motion involves an interpretative process. In defining the word “benefit,” the respondent argues that a modern approach should be used by looking at the words in the legislation, the context, and the overall purpose of the legislation. Section 280 of the Insurance Act provides the jurisdiction to the LAT to deal with the entitlement or amount of statutory accident benefits. Section 121 of the Insurance Act discusses the meaning of the Statutory Accident Benefit Schedule (SABS) and the government can establish benefits under the Ontario Automobile Policy (OAP). The respondent argues that the OAP sets out the benefits and the MIG is not there because it is a guideline and not a benefit. The respondent also argues that the cases referred to by the applicant do not decide the issue of MIG as a standalone issue.

10The applicant relies on three main arguments to support her position:

a. First, recent Tribunal case law decided the issue of the MIG despite it not being tied to a specific benefit. The applicant argues that in three recent cases the MIG was decided even though a medical or rehabilitation benefit was not tied to it.⁴

b. Second, proceeding before the Tribunal without a denied treatment plan is supported by the Insurance Act and SABS. Section 280 of the Insurance Act empowers the Tribunal to hear matters regarding the amount of benefits and s. 18(2) of the SABS refers to the MIG in the context of a limit. The applicant argues that since the word “limit” is defined as a maximum or minimum amount, quantity or number, the Tribunal has jurisdiction to hear the matter on its own. The applicant argues this is supported by a Divisional Court decision on the MIG where s.14 and 18 of the SABS are to create three tiers of benefits or in her words amounts.⁵ The applicant argues that the letters sent to the applicant by the respondent indicated how much funds remained under the MIG limit. Again, the MIG, referring to a tier of benefits, which is squarely under the jurisdiction of the Tribunal as it pertains to “the amount of statutory accident benefits to which [an applicant] is entitled.”⁶ The applicant also argues that the jurisdiction of the Tribunal is also supported by those same letters indicating that the applicant had 2 years to dispute her classification in the MIG. The applicant argues that denying the MIG as an arguable standalone issue is inconsistent with the context and purpose of the legislation.

c. Third, the case law presented by the respondent is distinguishable and not binding on the Tribunal. The applicant argues that the decisions lack an analysis within the context of statutory interpretation and therefore should not be relied upon.

11I considered all the submissions and case law of the parties and I have decided that the Tribunal does not have jurisdiction to hear the issue of the MIG unless it is tied to a benefit that requires its determination. Although my decision does not refer to every submission or case presented, they were all considered. My decision will concern the main arguments of the parties and the following paragraphs are my reasons to support it.

12First, the Tribunal does not have jurisdiction to deal with the issue of the MIG as a standalone issue unless a benefit is tied to it. This is supported by statutory interpretation, the plain reading, context, and purpose of the Insurance Act. Section 280 (1) of the Insurance Act states that the Tribunal has jurisdiction to resolve “disputes in respect of an insured person’s entitlement of statutory accident benefits or in respect of the amount of statutory accident benefits to which an insured is entitled.” The MIG is not a statutory accident benefit; it is a guide that defines what is a minor injury and the treatment framework for medical providers. It establishes a fee schedule and recommendations on how these types of minor injuries should be treated. The Tribunal only has jurisdiction to hear disputes relating to entitlement or amount of accident benefits. These benefits are outlined in various sections of the SABS. An individual whose injuries have been classified as minor can apply for benefits up to MIG limits, $3,500.00. It does not entitle a person to a benefit or grant them an amount of a benefit. When a person’s injuries are categorized as minor, non-catastrophic or catastrophic, it allows the person to apply for benefits within that monetary tier but does not entitle them to that monetary limit. Section 18 of the SABS allows the applicant to apply for medical, rehabilitation, and attendant care benefits up to those prescribed limits.

13Secondly, the decision to place someone in a specific classification based on their injuries is not statute-barred by section 56 of the SABS. S. 56 states that the insured person has two years from the insurer’s refusal to pay the amount claimed. Being classified under the MIG is not a refusal to pay the amount claimed. Being in the MIG does not entitle an insured to any amount of benefits. The issue of which tier an insured person’s injuries belongs can be argued at any time.

14Lastly, recently the Tribunal decided the issue of MIG as a standalone issue. Those decisions did decide other issues in dispute, but the issues did not require the MIG to be determined. There was no obligation on the adjudicator to decide the issue of the MIG in absence of a benefit that relies upon its determination. In this case, MIG is the only issue in dispute. It would be a waste of the Tribunal’s time to decide a standalone issue without any benefits being tied to it.

15In conclusion, determining the MIG does not entitle an insured to benefits or an amount of benefits they are entitled to. Consequently, it is not a dispute contemplated under s. 280 of the Insurance Act. The Tribunal does not have jurisdiction to decide this matter unless a benefit is tied to it that requires its determination. The respondent’s motion is granted. The application is dismissed without a hearing.

Released: January 4, 2022

___________________________

Chloe Lester

Adjudicator

Footnotes

1. 1Licence Appeal Tribunal (“the Tribunal”)
2. 2Licence Appeal Tribunal Rules of Practice and Procedure (“Rules”) Rule 3.4
3. 3RT v Certas Direct Insurance Company, 2020 CanLII 12782 (ON LAT); AS v Aviva Insurance Canada, 2019 CanLII 51335 (ON LAT); and SSL v Certas Direct Insurance Company, 2020 CanLII 63593 (ON LAT)
4. 4SS v. The Personal Insurance Company, 2020 CanLII 63541 (ON LAT); TA v TD Insurance Meloche Monnex, 2020 CanLII 80280 (ON LAT); and Jeong v Aviva Insurance Company of Canada, 2021 Can LII 110984 (ON LAT)
5. 5Scarlett v Belair Insurance, 2015 ONSC 3635
6. 6Section 280(2) of the Insurance Act