Muir v. Wawanesa Insurance, 2022 CanLII 65540

Citation: Muir v. Wawanesa Insurance, 2022 ONLAT 19-000604/AABS

Licence Appeal Tribunal File Number: 19-000604/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:

David Muir

Applicant

and

Wawanesa Insurance

Respondent

DECISION AND ORDER

ADJUDICATOR: Stephanie Kepman

APPEARANCES:

For the Applicant: David Muir, Applicant Georgiana Masgras, Counsel

For the Respondent: Annette Manson, Accident Benefits Specialist Elizabeth Scott, Counsel

Court Reporter: Tom Russell

Cross-examination of The applicant by video: Followed by written submissions

April 4, 2022

REASONS FOR DECISION AND ORDER

BACKGROUND

1The applicant was involved in an automobile accident on April 29, 2003 and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016)¹. The applicant was denied certain benefits by the respondent and submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”).

PRELIMINARY ISSUE

2The following preliminary issue is to be decided by the Tribunal:

I. Is the Applicant barred from proceeding with this application due to his failure to comply with Section 9.1 of R.R.O 1990, Regulation 664: Automobile Insurance (‘Regulation’)?

LAW

3Section 9.1(1) of the Regulation states that settlement refers to an agreement between an applicant and respondent that ends, on a final basis a claim/dispute dealing with the applicant’s entitlement to one or more benefits under the Schedule.

4Section 9.1(7) of the Regulation states that an applicant shall rescind a settlement as mentioned in sections 9.1(4) or (5) of the Regulation by delivering written notice to the office the respondent or its representative and returning any money received by the applicant as consideration for the settlement.

5Section 9.1(8) of the Regulation states that no person may apply to the Tribunal under subsection 280(2) of the Insurance Act respecting benefits subjected to a settlement or purported settlement unless the person has returned the money received as consideration for the settlement.

6Sections 280(1) and (2) of the Insurance Act R.S.O. 1990, c. I.8. (‘Insurance Act’) state the Tribunal has exclusive jurisdiction over the resolution of disputes with respect to entitlement to benefits under the Schedule.

NARROWING OF ISSUES

Submissions

7The respondent alleged the parties settled the applicant’s claim for benefits on approximately October 15, 2007². The respondent stated this settlement was completed on a full and final basis in exchange for a $400,000.00 payment from the respondent³; This was paid via two cheques on October 22, 2007⁴.

8The applicant has alleged that the settlement between the parties was not valid and made arguments related to this. His counsel submitted that that because there was no “meeting of the minds, there cannot be a valid agreement”⁵ and therefore, it should be set aside by the Tribunal.

9The applicant provided oral testimony via cross examination⁶ to support this. The applicant’s counsel submitted that the Tribunal could explore the validity of the settlement agreement and provided the factors to perform this analysis⁷.

10The respondent disagreed with this position and submitted that the only issue for the Tribunal to determine is if the applicant complied with section 9.1 of the Regulation.

11The respondent’s counsel referred to the Motion Order of Vice-Chair Terry Hunter⁸, where the parties agreed that the compliance issue with section 9.1 of the Regulation was the sole preliminary issue being before the Tribunal⁹. The Motion Order stated: “the remaining issues of the applicant’s capacity and the limitation will proceed at a further preliminary issue hearing”.

12The respondent submitted that the reason the Tribunal may have done this was because the remaining preliminary issues could only be addressed when compliance with the Regulation and the return of the settlement payments is completed by the applicant¹⁰. The respondent argued that as the applicant had failed to show that he had complied with section 9.1 of the Regulation and returned the settlement funds, he should be barred from proceeding with his application.

13The respondent also stated that X.Z.S. v Primmum had no bearing in the subject matter, as that matter addressed if there was a purposed settlement, which is not the preliminary issue before the Tribunal. The respondent submitted that in comparison to X.Z.S. v. Primmum, there is evidence that the parties confirmed the settlement terms with the release and settlement disclosure notice¹¹.

14The respondent submitted that this correspondence confirms the common understanding between the parties that there was a full and final settlement in exchange for $400,000.00 consideration to the applicant. Furthermore, as this settlement was completed over 10 years ago, the respondent submitted that this shows the applicant understood that the settlement was full, final and complete.

Analysis of the narrowing of the submissions

15After considering the submissions and evidence of the parties, based on a balance of probabilities, I find that the issue before the Tribunal is only the question of if the applicant complied with Section 9.1 of the Regulation, and not the issues of having a valid settlement, the issue of capacity and the limitations issue.

16As argued by the respondent, I agree that the issues before the Tribunal were specifically narrowed by Vice-Chair Hunter, specifically to avoid the applicant making arguments regarding the validity of the settlement agreement.

17It is logical that at the motion hearing Vice Chair Hunter would try to isolate the procedural issues related to the applicant’s request to vacate the settlement agreement prior to addressing issues. These issues are related to capacity, valid settlement and limitations, as procedural requirements of legislation are often strict and face a higher threshold.

18Therefore, I will not be considering the applicant’s submissions regarding the validity of the settlement agreement.

PRELIMINARY ISSUE

Submissions

19The respondent argued that the applicant is not entitled to proceed with his application, as the applicant has not complied with section 9.1(7) of the Regulation. This section requires an applicant who wishes to rescind a settlement agreement as mentioned by section 9.1 of the Regulation to deliver written notice to the respondent and return any settlement funds.

20The respondent provided evidence¹² that the settlement funds were paid to the applicant’s counsel, J. David Lindsay. The applicant did not specifically address this in his submissions.

21During cross examination, the applicant admitted that the settlement funds had not been returned and alleged that he never received them. However, he did not lead any other evidence beyond his testimony to support this.

Analysis

22Since the applicant is the party seeking to set aside the settlement pursuant to section 9.1 of the Regulation, the applicant carries the burden of showing that he complied with the section 9.1 requirements.

23Section 9.1(7) of the Regulation is clear in that an applicant who wishes to set aside a settlement must show that they provided written notice and returned the settlement funds.

24In this case, I have not been presented with evidence of such. Therefore, the applicant has failed to meet his evidentiary burden. As such, he is not entitled to proceed with his application, as he has failed to comply with section 9.1(7) of the Regulation, which required him to return the settlement funds he received in consideration. As he has not proven this, his application may not proceed.

CONCLUSION AND ORDER

25The applicant is statue barred from proceeding with his application, as he failed to comply with section 9.1 of the Regulation and cannot proceed until he does so.

Footnotes

1. 1O. Reg. 34/10 as amended.
2. 2Based on the Executed Release and Settlement Disclosure Notice, dated October 15, 2007.
3. 3Ibid.
4. 4Based on a letter from the respondent’s counsel, Elizabeth Scott, to the applicant’s counsel, dated October 22, 2007.
5. 5As seen in X.Z.S. v Primmum Insurance Company, 2019 CanLII 94023 (ON LAT) at para. 15.
6. 6Conducted on April 4, 2022 via a Tribunal video hearing.
7. 7As seen in X.Z.S. v Primmum, 2019 CanLII 94023 (ON LAT) at para. 24.
8. 8Dated July 19, 2021.
9. 9Ibid.
10. 10As seen in X.Z.S. v Primmum, 2019 CanLII 94023 (ON LAT) at para. 15.
11. 11Based on the executed Release and Settlement Disclosure Notice, dated October 15, 2007 and letters between Mr. Lindsay and Ms. Scott, dated October 15, 2007.
12. 12Via claim payment statements and a letter from Ms. Scott dated October 22, 2007.