Darrin Vaillancourt v. Intact Insurance Company, 2022 CanLII 78848

19-009063/AABS - R

RECONSIDERATION DECISION

Before: E. Louise Logan, Vice-Chair

Tribunal File Number: 19-009063/AABS

Case Name: Darrin Vaillancourt v. Intact Insurance Company

Written Submissions by:

For the Applicant: Lane Foster, Counsel Mark Elkin, Counsel

For the Respondent: Patrick Brennan, Counsel

BACKGROUND

1On November 10, 2021, the respondent requested reconsideration of the Tribunal’s preliminary issue Decision dated October 20, 2021, where the Tribunal determined the issue of whether the exclusion in s. 31(1)(a)(i) of the Statutory Accident Benefits Schedule – Effective September 1, 2010 (including amendments effective June 1, 2016)¹ (“Schedule”) applied.

2The grounds for a request for reconsideration to be allowed are contained in Rule 18 of the Tribunal’s Common Rules of Practice and Procedure (“Rules”).² To grant a request for reconsideration, the Tribunal must be satisfied that 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.

3The respondent is seeking a reconsideration pursuant to Rule 18.2 (b). The respondent requests that the Tribunal’s Decision be varied to find the applicant’s claim is subject to the exclusion in s. 31(1)(a)(i) of the Schedule.

RESULT

4The respondent's request for reconsideration is granted. The applicant’s claim is subject to the exclusion in s. 31(1)(a)(i) of the Schedule.

ANALYSIS

5In its October 20, 2021 Decision, the Tribunal considered whether the exclusion set out in s. 31(1)(a)(i) applied to the applicant’s claim. Section 31(1)(a)(i) states:

The insurer is not required to pay an income replacement benefit, a non-earner benefit or a benefit under section 21, 22, or 23,

(a) In respect of a person who was the driver of an automobile at the time of the accident

(i) If the driver knew or ought reasonably to have known that he or she was operating the automobile while it was not insured under a motor vehicle liability policy

6In the Decision, the Tribunal articulated its reasons for concluding the exclusion does not apply. The respondent submits that the Tribunal’s analysis and reasons contain errors of law and fact such that the Tribunal would likely have reached a different result had the errors not been made.

Did the Tribunal make an error of law in its analysis of s. 31(1)(a)(i)?

7The respondent submits that the Tribunal made an error in law in its application of the proper test for considering s. 31(1)(a)(i) of the Schedule. The respondent submits that the Tribunal applied an exclusively subjective test when considering the language of s. 31(1)(a)(i), when it should have applied an objective test. The respondent submits this error of law was significant such that a different decision would have been reached had the proper legal test been applied.

8In support of its position, the respondent submits that the Tribunal misapprehended the decision in Batoor v. State Farm Mutual Automobile Insurance Co³ (Batoor), and as a result incorrectly concluded at paragraph 8 of the Decision that the “knowledge portion” of the analysis under s. 31(1)(a)(i) is a subjective test. The respondent states that the correct test is the “contextual objective” test, articulated in Batoor as “what an ordinary rational person, of the age, education and background of the Applicant, in the circumstances he encountered that day, ought reasonably to have known about the insurance coverage of the motorcycle”. In addition to Batoor, the respondent refers to several other cases in support of its position that the correct test is a contextually objective one.

9The applicant submits that no significant error of fact or law was made by the Tribunal. He submits the Tribunal correctly applied the test required by s. 31(1)(a)(i) and states that “the decision as read, indicates that the test being subjective meant only that the applicant’s personal characteristics, such as age and driving experience, were taken into account when determining what he reasonably ought to have known”. The applicant submits that even if the test was mislabeled in the Tribunal’s Decision as being subjective, objective standards of reasonableness and what the applicant ought to have known were clearly taken into account. The applicant submits that the Decision correctly concludes the applicant’s beliefs, even if mistaken, were reasonable in the circumstances, and that there is therefore no basis to believe the result would have been different if the test had been labelled as “contextual objective”, rather than “subjective”. The applicant submits that the Tribunal assessed what the applicant ought to have believed given his background, and the respondent’s submissions are an inappropriate effort to re-litigate the case on reconsideration.

10In reply, the respondent submits that the material issue is not limited to how the Tribunal labelled test but rather whether the correct test was applied, and whether the application of the proper test would have led to a different decision. The respondent submits that it is insufficient for the Tribunal to have considered what the applicant ought reasonably to have known without a contextual analysis that includes consideration of the applicant’s age, education and background among other factors. In the respondent’s view, the application of the proper test would have led to a different decision by the Tribunal.

11In my review of the submissions on reconsideration, I find that the parties do not disagree that the test to be used is an objective one. The disagreement arises over the question of whether or not the Tribunal applied the correct test in its Decision. The respondent submits that the Tribunal applied a subjective test, while the applicant submits that while the Tribunal referred to the test as subjective, it applied an objective test in the course of its Decision.

12In support of its submissions, the respondent cites the following from the Decision:

(a) Paragraph 37 wherein it is stated “…what is at issue is what [road coverages] means to the applicant”. In the respondent’s view this analysis ignores the contextual objective test and the wording of the Schedule, that is, what the applicant “ought reasonably to have known”.

(b) Paragraph 9 in which, in the respondent’s view, the Tribunal “misapprehended and conflated the ‘subjective test’ with ‘ought reasonably to have known’ in accepting the claimant’s evidence of his subjective knowledge and belief as to the insurance coverage on his motorcycle at the material time.”

(c) Paragraphs 58 to 61 which contain an analysis of what the applicant knew or believed about his motorcycle liability coverage at the time of the accident. The respondent submits these paragraphs do not contain any objective analysis, contextual or otherwise, and speak only to accepting the evidence of the applicant and his subjective “reasonable belief”.

13In support of his submissions, the applicant cites several paragraphs from the decision that in his view demonstrate the test applied by the Tribunal was not purely objective, including:

(a) Paragraph 23 where the Tribunal states that “Based on the evidence noted below, I find the respondent has not met its burden to show that the applicant knew or ought to have reasonably known there was no liability insurance prior to the accident.”

(b) Paragraph 24 where the Tribunal states that “Based on the evidence and reasons below I find on a balance of probabilities that the applicant did not know, nor should he have ought reasonably to have known that there was no liability coverage on the motorcycle.”

(c) Paragraph 33 which includes the phrase “Thus, it is reasonable for the applicant to believe that he was adjusting coverage in that only the collision coverage would be affected.”

(d) Paragraph 40, where the Tribunal states it is not reasonable to have expected the Applicant to understand he did not have liability coverage based on the information within his knowledge.

(e) Paragraphs 42-44, where the Tribunal states that the applicant’s mistaken belief was reasonable, which the applicant submits implies an objective element to the analysis. Reasonableness includes an element of an objective standard. The applicant submits these paragraphs show that the Tribunal is not relying solely on what the applicant states or believes but testing it against a reasonable standard, which is the correct test.

14I agree with the respondent. I find that there was an error of law in applying a subjective rather than an objective test to the analysis of s. 31(1)(a)(i). My reasons are as follows.

15In the Decision, the Tribunal noted at paragraph 7 that it is not bound by Batoor, but found the analysis in Batoor helpful as a guide to the examination of the phrase “knew or ought reasonably to have known” in s. 31(1)(a)(i). At paragraph 8, the Tribunal stated that “Batoor makes it clear at paragraph 76 that the test to apply to the knowledge portion of s. 33(1)(a)(i) is subjective and not objective”. This was an error because paragraph 76 of Batoor sets out the test as follows: “when there is no direct evidence of the knowledge of the Applicant as to the insurance coverage on the vehicle, the test in s. 31(1)(a)(i) of the Schedule becomes an objective test.” Batoor at paragraph 77 goes on to state that in the absence of direct evidence, the decision-maker “must therefore assess what an ordinary rational person, of the age, and background of the Applicant, in the circumstances he encountered that day, ought reasonably to have known about the insurance coverage on the motorcycle”. This is the articulation of an objective test, not a subjective one as stated by the Tribunal in its Decision.

16I find that this was not a case of the Tribunal mislabeling the test and then applying the correct one, as submitted by the applicant. I agree with the respondent that having mistakenly concluded that the test was subjective, the Tribunal then carried out a subjective analysis. The Tribunal reviewed in detail at paragraphs 25-61 what the applicant knew, or believed, with respect to the removal of his liability insurance, and the subjective reasonableness of his knowledge and beliefs. The Tribunal reviewed all the evidence, applied a subjective test, and concluded that it was reasonable that the applicant did not know that he was driving his motorcycle without liability coverage and therefore the exclusion in s.31(1)(a)(i) did not apply.

17In its analysis, the Tribunal did not make reference to what an ordinary rational person, of the age, and background of the applicant, in the circumstances he encountered that day, ought reasonably to have known about the insurance coverage on the motorcycle. This is the analysis that is required for consideration of s.31(1)(a)(i). While, as noted by the applicant in his submissions, the Tribunal does reference the language of “knew or ought reasonably to have known” found in s.31(1)(a)(i), I agree with the respondent that the Tribunal applied a subjective test in arriving at its conclusion.

18Based on my review, I agree with the respondent. I find that the Tribunal’s application of a subjective rather than an objective test to its consideration of the language in s. 31(1)(a)(i) was an error of law.

Is the error of law such that the Tribunal would likely have reached a different result if it had not been made?

19Having found an error of law, Rule 18.2 requires me to determine whether the error is such that the Tribunal would likely have reached a different result had the error not been made.

20I find that the error of law is such that the Tribunal would likely have reached a different result had the error not been made. That is, if the Tribunal had applied the objective test required by s. 31(1)(a)(i), it would likely have resulted in a different outcome. In arriving at this conclusion, I have considered the application of the objective test to the following facts, which are not disputed by the parties.

21The applicant is a paramedic with experience dispatching helicopter emergency ambulances. He is married with two children, all of whom were drivers at the time of the accident. Working through a broker, the applicant was the member of the family who dealt with insurance coverage. On November 7, 2016 the applicant asked for the coverage on his motorcycle to be changed. At paragraph 26 the Tribunal cites the applicant’s email instructing his broker as follows:

“My bike is tucked safely away in a secured heated storage for the winter. Can we a[d]just the coverage and get an updated pink slip. The one I have is expired.” [sic]

22The applicant was advised by the broker that they could not issue a liability slip because the motorcycle had no “road coverages”. At paragraph 27 the Tribunal cites the broker’s email response to the applicant’s request as follows:

“we will send request to the insurance company to remove the road coverages from the [Motorcycle]…we cannot issue a liability slip for the [Motorcycle] as it has no road coverages.”

23The applicant testified he did not know what the term “road coverages” in this email meant, and assumed it meant he did not have insurance for repairs if the motorcycle was involved in an accident. He was subsequently confused by the communications from his broker and insurance company with respect to his insurance coverage on the motorcycle and his other insured vehicle, a truck. The applicant skimmed the email from his broker and did not really read the two insurance certificates sent to him by the respondent showing “n/a” and “deleted” under liability coverage for the motorcycle but simply filed them away. He paid no premiums for the insurance of the motorcycle and continued to pay for coverage for his other vehicle that was insured with the respondent. He took his motorcycle out of storage and drove it on the day of the accident without contacting his broker beforehand to adjust his insurance coverage.

24I find that based on the record, had the Tribunal applied the correct test, it would have found that an ordinary, rational person of the age and background of the applicant, in the circumstances he encountered the day of his accident, ought reasonably to have known that the motorcycle he was operating on July 26, 2017 was not insured under a motor vehicle liability policy.

25The applicant is an educated man who has held responsible positions. In his 15 years as a field paramedic and his subsequent role as a dispatcher of emergency helicopters the applicant would have been required to review and understand complex documentation and gather critical information in life and death situations. He has experience in obtaining insurance for his motor vehicles and adjusting the insurance coverage as required. He paid no insurance premiums for his motorcycle, while continuing to pay premiums for his other vehicle. He was advised that he could not be issued a liability slip when he requested one. He received notifications from the respondent about the status of his insurance. He knew enough about his insurance coverage to request an adjustment in coverage when he put the motorcycle into storage, but he did not adjust it when he took it out of storage and drove it on the date of the accident.

26Given my finding above, I do not need to consider the additional grounds for reconsideration submitted by the respondent.

CONCLUSION

27For the reasons noted above, I find that the respondent has established that the Tribunal made an error of law such that the Tribunal would have likely reached a different result had the error not been made.

28Pursuant to Rules 18.2(b) and 18.4, I grant the respondent’s request for reconsideration. The Tribunal’s Decision is varied to find the applicant’s claim is subject to the exclusion in s. 31(1)(a)(i) of the Schedule.

E. Louise Logan, Vice-Chair

Footnotes

1. 1O. Reg. 34/10
2. 2The Licence Appeal Tribunal, Animal Care Review Board, and Fire Safety Commission Common Rules of Practice and Procedure, Version I, (October 2, 2017) as amended.
3. 32016 CarswellOnt 4908, 22 F.S.C.O. A.D. 88