RBC General Insurance Company v. Balasubramaniam, 2023 CanLII 9247

RBC General Insurance Company v. Balasubramaniam

Citation: RBC General Insurance Company v. Balasubramaniam, 2023 ONLAT 19-008701/AABS

Licence Appeal Tribunal File Number: 19-008701/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:

RBC General Insurance Company

Applicant

and

Kuhanesa Balasubramaniam

Respondent

DECISION

ADJUDICATOR: Harry Adamidis

APPEARANCES:

For the Applicant: Dulcinea Griffith, Adjuster Sheryl Cocoran, Adjuster Pamela Quesnel, Counsel Tom Hughes, Counsel

For the Respondent: Kuhanesa Balasubramaniam, Respondent David S. Wilson, Counsel

Interpreter: Kandiah Pathmanathan (Tamil)

Court Reporter: Graeme Peto

HEARD: by Teleconference: September 21 and 22, 2022

BACKGROUND

1The respondent was involved in an automobile accident on August 24, 2005, and sought benefits pursuant to the Statutory Accident Benefits Schedule – Accidents on or after November 1, 1996. An order was issued, on consent of both the applicant and the respondent, by the Financial Services Commission of Ontario (“FSCO”) on April 13, 2010 requiring the applicant to pay to the respondent a weekly income replacement benefit of $311.21.

2The applicant has submitted an application to the Licence Appeal Tribunal – Automobile Accident Benefits Service (“Tribunal”) to vary or revoke the order of April 13, 2010.

ISSUES

3Can the Tribunal vary or revoke an order of FSCO?

RESULT

4The Tribunal cannot vary or revoke an order of FSCO. This application is dismissed.

ANALYSIS

5The applicant submits that the issue of whether the Tribunal has jurisdiction to amend a FSCO order was decided in the Superior Court of Justice for this very case. In Balasubramaniam v RBC General Insurance Company,¹ Master McGraw found that “any variation of the Arbitration Order” is within the jurisdiction of the Tribunal.

6This decision states that the Superior Court does not have jurisdiction over accident benefit disputes. The jurisdiction to resolve these disputes lies with the Tribunal. No other reasoning is provided. With the greatest respect to the court, this finding is not helpful in resolving the matter before the Tribunal. The previous order was issued by FSCO under previous legislation that is no longer in force. The issue here is whether an order issued under previous legislation by another adjudicative body can be amended by the Tribunal. The concise determination of the Superior Court offers no explanation or insight into how this can be done. Consequently, this decision is neither instructive nor determinative of the issue.

7The applicant further submits that the Insurance Act (“Act”) gives exclusive jurisdiction over accident benefits disputes to the Tribunal. The current dispute between the applicant and respondent is an accident benefits dispute. Consequently, the Tribunal can resolve this dispute by amending the FSCO order.

8This submission does not accord with the legislation. Section 281 of the Act governs how benefits may be reduced after the Tribunal issues a decision. Under paragraph 2(c), the option being sought by the applicant, the insurer may reduce benefits if authorized to do so by the Tribunal. This is only possible after “the Licence Appeal Tribunal issues a decision.”² This gives authority to reduce benefits ordered by the Tribunal. It does not authorize the Tribunal to reduce benefits ordered by FSCO, a different tribunal.

9The applicant also submitted that there is no legislative gap that prevents the Tribunal from varying or revoking an order by FSCO. The appropriate approach for interpreting legislation is found in Stegenga v. Economical Mutual Insurance Company:

The breadth of s. 280 of the Insurance Act is a question of statutory interpretation. The modern approach to statutory interpretation requires the court to consider the words of a statute "in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament": Belwood Lake Cottagers Ass'n Inc. v. Ontario (Environment and Climate Change), 2019 ONCA 70, [2019] O.J. No. 485³

10The applicant noted that the wording in s.287 of the previous [Act],⁴ under which FSCO operated, mirrors the legislative intent of the current Act. The previous Insurance Act reads:

287. An insurer shall not, after an order of the Director or of an arbitrator appointed by the Director, reduce benefits to an insured person on the basis of an alleged change of circumstances, alleged new evidence or an alleged error, unless the insured person agrees or unless the Director or an arbitrator so orders in a variation or appeal proceeding under section 283 or 284.

11The legislature protected FSCO ordered benefit payments by requiring insurers to return to FSCO to request a reduction of benefits. The same scheme exists today under the current legislation.

12The applicant submits that a harmonious reading of the current statute, which takes into account the intent of the legislation, would find that the Tribunal can vary or revoke FSCO orders because legislators created an identical scheme for safeguarding the payment of benefits.

13I disagree. The applicant’s submission relies on inferences to determine legislative intent. The actual intention of the legislature is found in the transitional provisions which govern how matters from the previous Act are dealt with under the current Act.

14The current Act came into force on April 1, 2016. At that time, the Regulations for the new Act contained transitional provisions which allowed the Tribunal to vary FSCO orders. Section 22 states:

22. (1) The following proceedings may be commenced, on or after the transition date, in respect of the arbitrations described in subsection (2):

23. An application for a variation or revocation of an order under section 284 of the pre-transition date Act.

15Parties cannot commence proceedings at the Tribunal to vary or revoke FSCO orders as of June 8, 2019 when new Regulations came into force:

22. (1) No party may commence any of the following proceedings on or after June 8, 2019:

23. An application for a variation or revocation of an order under subsection 284 of the pre-transition date Act.

16The legislative intent is clear. The Tribunal can vary or revoke FSCO orders if a proceeding was commenced before June 8, 2019.

17The applicant commenced this proceeding on July 22, 2019 by submitting an application to the Tribunal. This was after June 8, 2019, and therefore, this matter cannot proceed.

18It is acknowledged that an accident benefits dispute exists between the applicant and the respondent. It is further acknowledged that the Tribunal has exclusive jurisdiction to resolve this dispute. However, this cannot be done by way of varying or revoking the FSCO order.

19The legislative intent with regard to resolving disputes arising from the previous Insurance Act is expressed in the transitional provisions in paragraph 22(2) of the current Regulations. This is to be done by way of a new application to the Tribunal:

For greater certainty, if an application is made to the Licence Appeal Tribunal under subsection 280 (2) of the Act, the dispute shall be resolved in accordance with the rules of the Licence Appeal Tribunal.

20For these reasons, this application is dismissed.

ORDER

21The application to vary or revoke the FSCO order of April 13, 2010 is dismissed.

Footnotes

1. 1Balasubramaniam v RBC General Insurance Company, 2020 ONSC 1627, at para 40.
2. 2S.281(1) Insurance Act.
3. 3Stegenga v. Economical Mutual Insurance Company, 2019 ONCA 615, at para 31.
4. 4Insurance Act R.S.O. 1990, Chapter I.8 in force from August 15, 2015 to March 31, 2016.