Licence Appeal Tribunal File Number: 21-015392/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:
Mija Ko
Applicant
and
Wawanesa Mutual Insurance Company
Respondent
PRELIMINARY ISSUE DECISION AND ORDER
ADJUDICATOR:
Tavlin Kaur
APPEARANCES:
For the Applicant:
Mija Ko, Applicant
Jae Hyon Cho, Counsel
For the Respondent:
James Schmidt, Counsel
HEARD:
By Way of Written Submissions
OVERVIEW
1Mija Ko, the applicant, was involved in an automobile accident on August 22, 2015 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (the “Schedule”). The applicant was denied benefits by the respondent, Wawanesa Mutual Insurance Company (“Wawanesa”), and applied to the Licence Appeal Tribunal-Automobile Accident Benefits Service (the “Tribunal”) for the resolution of the dispute.
PRELIMINARY ISSUE IN DISPUTE
2The preliminary issue to be decided is whether the parties agreed to a full and final settlement of the matter.
RESULT
3The Tribunal does not have the jurisdiction to consider this issue because, the applicant did not meet the requirements in section 9.1(8) of Regulation 664. This application is dismissed for lack of jurisdiction.
ANALYSIS
Background
4On August 22, 2015, the applicant was involved in an accident. The applicant was represented by Brad Duby at the time. The respondent engaged in settlement discussions with her counsel. In or about December 2019, the applicant communicated with Mr. Duby’s office and agreed to settle her accident benefits claim. On January 9, 2020, Mr. Duby provided a release and settlement disclosure notice (“SDN”).
5On January 23, 2020, a cheque that was made out to “Brad Duby Professional Corporation” in trust in the amount of $250,000.00 was cashed. The applicant alleges that she never heard back from Mr. Duby in relation to the settlement. On January 28, 2021, Mr. Duby passed away. The applicant learned about the settlement from her new lawyer in February 2021. The applicant then commenced an application with the Tribunal.
Parties’ positions
6The applicant submits that she did not sign the SDN or the release. Nor did she review or read them. As a result, the statutory requirements to enter into a legally binding settlement were not met. The SDN and the release are also void under common law because she alleges that her and witness’ signatures were forged. As such, the settlement is not legally binding.
7With respect to section 9.1(8) of Regulation 664, the applicant submits that the Tribunal has equitable jurisdiction to set aside the settlement and that the applicant should be excused from compliance with section 9.1(8) based on the fact that it is inequitable not to do so. It is her position that sections 9.1(7) and 9.1(8) can only be triggered on the presumption that the applicant received the settlement funds. It is inequitable to statutorily bar the applicant from seeking relief as she has not returned the money received as consideration for the settlement. She is not able to give back the settlement funds as per section 9.1(7) because she never received them from her former lawyer.
8The respondent submits that the settlement is binding. According to the respondent, it is well-established in the case law that a lawyer has ostensible authority to affect a binding settlement on behalf of a client. Unless the opposing side has knowledge of some limitation on the lawyer’s retainer, any settlement made by a lawyer will be binding on the client, regardless of any dispute between the lawyer and his own client as to the scope of the lawyer’s instructions.
9With respect to section 9.1(8) of Regulation 664, the respondent submits that the Tribunal does not have equitable jurisdiction unless the power is specifically granted to the Tribunal to make equitable rulings. The respondent is relying on the Alberta Court of Appeal’s ruling in Alberta v. McGeady, 2015 ABCA 54 (“McGeady”). The respondent submits that whether or not her former counsel engaged in a contrivance in producing the release documentation to the respondent, it does not absolve the applicant of her duty to return the funds in relation to the settlement or purported settlement. It is the respondent’s position that the Tribunal must dismiss the application in its entirety.
Regulation 664
10Regulation 664 provides a framework for agreements that finally dispose of a claim or dispute in respect of a person’s entitlement to statutory accident benefits under the Schedule. Section 9.1(8) of the Regulation sets out the process of when an applicant may apply to the Tribunal with respect to benefits that were subject to a settlement. According to section 9.1(8), “no person may apply to the Licence Appeal Tribunal under subsection 280(2) of the Act with respect to benefits that were the subject of a settlement or a purported settlement unless the person has returned the money received as consideration for the settlement.”
11Before an individual may apply to the Tribunal in relation to benefits that were subject to a settlement, they must return the money that they received as consideration. The applicant alleges that enforcing the settlement would create a real risk of a clear injustice. However, the legislation is clear that returning the monies is mandatory. The applicant alleges in her submissions that she did not receive the settlement monies. In fact, her submissions states that, “The Applicant did not receive any of the settlement payment from the Respondent in accordance with the Settlement.” But her affidavit is silent on this point. Submissions are not evidence. Based on the documents before me, there is no evidence that she did not receive the settlement monies.
12Even if I were to take her submissions at face value for the truth of their content, the applicant has not led evidence that satisfies the mandatory requirement of section 9.1(8). Therefore, she has not successfully rescinded the settlement in accordance with the legislation.
13Moreover, the Tribunal does not have the jurisdiction to grant equitable remedies. I have reviewed the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22, the Licence Appeal Tribunal Act, 1999, SO 1999, c 12, Sch G, the Insurance Act, RSO 1990, c I.8 and the Licence Appeal Tribunal, Animal Care Review Board and Fire Safety Commission Common Rules of Practice and Procedure, October 2, 2017, as amended (the “Common Rules”). In reading the text, context and purpose of these Acts and Rules, I do not find that they confer the power to grant equitable remedies onto the Tribunal.
14With respect to Stegenga v. Economical Mutual Insurance Company, 2019 ONCA 615, the Court of Appeal noted that the Tribunal has exclusive jurisdiction over accident benefit claims. I agree. However, the Tribunal cannot obtain jurisdiction merely because the parties desire the Tribunal to resolve their dispute; it may adjudicate disputes only when the legislature allows for it. Accordingly, the Tribunal cannot adjudicate this dispute until the applicant meets the mandatory requirements under section 9.1(8) of Regulation 664. To disregard the requirements in this section would be contrary to the intent of the legislature. The legislature specifically imposed the requirements in section 9.1(8) of Regulation 664, and I must respect that. In my view, the applicant may have redress through LawPRO or the Compensation Fund through the Law Society of Ontario. She should explore those options first and see if she is able to recover the settlement monies that she allegedly did not receive.
15While I empathize with both parties for being in this unusual situation, this application is not properly before the Tribunal. I decline to make a finding on whether the parties agreed to a full and final settlement of the matter at this stage because the Tribunal does not have jurisdiction to do so. However, on a without prejudice basis to the applicant, she can renew this attempt in the future as long as she meets the mandatory language of Regulation 664 and a dispute with the insurer arises therefrom.
ORDER
16The application is dismissed for lack of jurisdiction.
Released: July 11, 2023
Tavlin Kaur
Adjudicator