Maycid v. TD General Insurance Company, 2022 CanLII 14959

Citation: Maycid v. TD General Insurance Company, 2022 ONLAT 20-012985/AABS - PI

Licence Appeal Tribunal File Number: 20-012985/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:

Lewi Maycid

Applicant

and

TD General Insurance Company

Respondent

PRELIMINARY ISSUE DECISION AND ORDER

VICE-CHAIR: D. Gregory Flude

APPEARANCES:

For the Applicant: Lewi Maycid, Applicant, Self-Represented

For the Respondent: Joseph Griffiths, Counsel

HEARD: by Videoconference: January 31, 2022

PRELIMINARY ISSUE MOTION

REASONS FOR DECISION AND ORDER

BACKGROUND

1The reality of modern life is that we are highly mobile. The result is that Ontario residents, driving automobiles insured in Ontario, may be involved in motor vehicle accidents in other provinces or territories in Canada or jurisdictions of the United States of America. Many, if not all, of these jurisdictions have no-fault benefit insurance provisions, similar but not identical to the no-fault benefit provisions in Ontario as set out in the Statutory Accident Benefits Schedule – Effective September 1, 2010, O. Reg 34/10 (the “Schedule”).

2Section 59 of the Schedule allows a person involved in a motor vehicle accident in another jurisdiction in Canada or the United States to elect whether to receive Ontario benefits or benefits of the jurisdiction where the accident occurred. The right of the applicant, Lewi Maycid, to make an election is not in dispute and he has elected to receive Quebec benefits as a result of an accident on August 5, 2018 in Montreal, PQ. What is in dispute is whether disagreements over his entitlement to benefits properly comes before this Tribunal or he must go to the equivalent Quebec tribunal for resolution.

3TD General Insurance Company (“TD”) has brought the preliminary issue motion to determine that question. It submits that, by electing to receive benefits according to the Quebec legislative framework, Mr. Maycid must bring disputes to the Quebec tribunal.

Agreed Facts

4At the outset of this preliminary issue motion, the parties agreed the following facts:

a. Mr. Maycid is a resident of Ontario.

b. On August 5, 2018, he was involved in a motor vehicle accident in Montreal, PQ.

c. He applied for his insurer, TD General Insurance Company (“TD”) for no-fault accident benefits. TD forwarded an Application for Accident Benefits (OCF-1) and opened a claims file.

d. TD asked Mr. Maycid to make an election whether he wanted to receive benefits according to the Quebec legislative framework or the Ontario Schedule. On September 7, 2018, Mr. Maycid elected to receive benefits under Quebec legislative framework.

e. One benefit available under the Quebec system is a lump sum payment for non-pecuniary loss of up to a maximum of approximately $240,000. Mr. Maycid has applied for the lump sum payment of $241,000.02.

f. There is a dispute over the amount of the lump sum payment and Mr. Maycid has applied to this Tribunal to resolve it.

g. TD has taken the position that since Mr. Maycid has been compensated according the Quebec no-fault accident benefits scheme, he must bring any disputes relating to his entitlement to benefits before the Quebec tribunal and that this Tribunal does not have jurisdiction to decide the dispute.

PRELIMINARY ISSUES

5The preliminary issue as set out in the case conference order is in two parts.

a. Does the Tribunal have jurisdiction to consider this application, and, if so,

b. What benefit is Mr. Maycid actually seeking?

6At the motion hearing, Mr. Maycid clarified that he is seeking the Quebec lump sum payment. He has characterized it in his application as a claim for past and future treatment, because he intends to use the payment for future treatment.

ANALYSIS

7With respect to jurisdiction, I find that this Tribunal does have jurisdiction to determine Mr. Maycid’s dispute with TD.

8It is trite law that this Tribunal is a creature of statute with no inherent jurisdiction. In the case of the Insurance Act R.S.O. 1990, c. I.8 (“Insurance Act”), s. 280 creates the jurisdiction for the Tribunal to adjudicate on disputes under the Schedule. It states:

280 (1) This section applies with respect to the resolution of disputes 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) The insured person or the insurer may apply to the Licence Appeal Tribunal to resolve a dispute described in subsection (1).

(3) No person may bring a proceeding in any court with respect to a dispute described in subsection (1), other than an appeal from a decision of the Licence Appeal Tribunal or an application for judicial review.

(4) The dispute shall be resolved in accordance with the Statutory Accident Benefits Schedule.

9Put succinctly, the Tribunal’s jurisdiction is to resolve disputes 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 in accordance with the Schedule. TD submits that, by electing benefits under the Quebec legislative scheme Mr. Maycid’s dispute is no longer a dispute in accordance with the Schedule.

10In its recent decision of the Court of Appeal for Ontario in Stegenga v. Economical Mutual Insurance Company, 2019 ONCA 615 (“Stegenga”) broadly interpreted the jurisdiction of this Tribunal to include all disputes in respect of entitlement to statutory accident benefits under the Schedule, no matter how characterized.

11TD focusses on s. 280’s wording that the Tribunal’s jurisdiction is to address disputes under the Schedule. In its submission, once Mr. Maycid made his election then his dispute was no longer a dispute under the Schedule but was now a dispute under the Quebec legislative framework and dispute resolution proceeding must be pursued in Quebec. I disagree.

12Section 59 of the Schedule addresses the question of mobility across provincial and state boundaries. It states:

59. (1) This section applies if,

(a) as a result of an accident in another province or territory of Canada or a jurisdiction in the United States of America, a person insured in that jurisdiction within the meaning of subsection (4) dies or sustains an impairment or incurs an expense described in section 15, 16 or 19; and

(b) no benefits are received under the law of the jurisdiction in which the accident occurred.

(2) The person, or the person claiming benefits in respect of him or her, may elect to receive either of the following, but not both:

1. The benefits described in this Regulation, other than the benefits referred to in paragraph 2.

2. Benefits in the same amounts and subject to the same conditions as if the person was a resident of the jurisdiction in which the accident occurred and was entitled to payments under the law of that jurisdiction.

(3) If an election is made under subsection (2), the insurer shall pay benefits in accordance with the election.

13I do not see that s. 59 has the limit urged upon me by TD, that is, by electing to take under the Quebec framework, Mr. Maycid is forever tied to pursuing benefits in Quebec. I find that the interpretation urged in me by TD runs counter to the consumer protection aspect of the Schedule. The aim of the Schedule is to make a range of reasonable and necessary medical, rehabilitation and other benefits available to Ontario insureds and for disputes over benefits to be resolved expeditiously. TD’s position, if accepted, would require an insured to apply not only to Quebec as in this case, but to Texas, California or Nunavut, etc. depending on the jurisdiction of the accident. This added burden is directly counter to the goal of ready access to benefits and dispute resolution.

14Section 59 is part of the Schedule and disputes under the Schedule fall within the exclusive jurisdiction of the Tribunal. Section 59(3) puts administration of claims requiring the “insurer” to pay the benefits in accordance with the election squarely on the shoulders of the Ontario insurer. While the term “insurer” is not defined in the Schedule, it is defined in s. 1 of the Insurance Act as “the person who undertakes or agrees or offers to undertake a contract.” In this case, TD, an Ontario insurer, is required to pay the benefits in accordance with Mr. Maycid’s election. When combined with s. 280 of the Insurance Act, that disputes between an insured and insurer relating to the entitlement or amount of statutory accident benefits fall within the jurisdiction of the Tribunal, then I can see no support for TD’s position.

15TD submits that the wording of s. 59(2)2. deems Mr. Maycid to be a resident of Quebec and therefore he must seek dispute resolution in Quebec. Section 59(2)2. addresses the level of benefits and conditions that might apply to those benefits, not the jurisdiction for dispute resolution. In J. W. v. Wawanesa Insurance 2019 CanLII 119761 (ON LAT) I was asked to resolve a dispute over which fee guide applied to the services for a catastrophically impaired Ontario resident who had elected benefits under the Quebec legislative framework. The amount of compensation for services is a condition of receiving benefits under the Quebec scheme. Over the years the permitted fees for services under the Quebec framework had lagged the permissible fees under the Schedule. J.W. sought to be the beneficiary of the unlimited coverage available in Quebec and had already received significantly higher benefit payments than were available in Ontario, but she wanted treating healthcare practitioners to be paid at the higher Ontario scale. In that case, the deeming provision applied, and her benefit level was limited to the Quebec scale, as if she were a resident of Quebec.

ORDER

16Having found that the Tribunal has jurisdiction to address this dispute, the matter will proceed to a case conference on a date to be set by the Tribunal.

17The issues to be decided at the hearing are:

a. Is the applicant entitled to a lump sum payment under the Quebec legislative framework?

b. If so, what amount of lump sum payment is the applicant entitled to?