Licence Appeal Tribunal
Licence Appeal Tribunal File Number: 22-004038/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:
Faris Gorges (By his Estate Trustee, Samira Gorges) Applicant
and
Unifund Assurance Company Respondent
PRELIMINARY ISSUE DECISION AND ORDER
ADJUDICATOR: Tavlin Kaur
APPEARANCES:
For the Applicant: Ezat Gorges and Samira Gorges, for the Applicant, Faris Gorges, deceased. David Wylupek, Counsel
For the Respondent: Ken Yip, Counsel
HEARD: By way of written submissions
BACKGROUND
1This proceeding concerns a dispute between an insured person (the applicant) and an insurer (the respondent) about automobile insurance benefits under the Statutory Accident Benefits Schedule – Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”) arising out of a motor vehicle accident on January 6, 2015.
2The parties attended a case conference on January 5, 2023. The respondent raised a preliminary issue in relation to the application because the applicant passed away on January 27, 2022.
PRELIMINARY ISSUE IN DISPUTE
3Preliminary Issue: The preliminary issue to be decided is:
- Should this proceeding be stayed on the basis that it is moot as the applicant passed away on January 27, 2022?
Parties’ positions
4The respondent submits that the issue of the catastrophic designation is moot. The respondent is relying on Borowski v. Canada (Attorney General), 1989 CanLII 123 (SCC) where the Supreme Court of Canada found that a matter will be considered moot where deciding it will have no practical effect on the rights of the parties because there is no longer any “live controversy” between them.
5It is the respondent’s position that a finding of the catastrophic designation will have no practical effect on the applicant’s entitlement to accident benefits given that there are no underlying medical, rehabilitation, or attendant care benefits in dispute. The applicant never exhausted the limits under the Minor Injury Guidelines. As such, there cannot be any future medical, rehabilitation or attendant care benefits given that the applicant has passed away.
6The applicant’s legal counsel declined to provide submissions on this point.
RESULT
7I find that the application before the Tribunal cannot proceed as it is moot. I decline to exercise my discretion to hear it.
ANALYSIS
8As noted in Borowski, the approach with respect to mootness involves a two-step analysis. It is first necessary to determine whether the requisite tangible and concrete dispute has disappeared rendering the issues academic. If so, it is then necessary to decide if the court should exercise its discretion to hear the case. (In the interest of clarity, a case is moot if it does not present a concrete controversy even though a court may elect to address the moot issue.)
9The substantive issue in dispute in this case is whether the applicant sustained a catastrophic impairment as defined by the Schedule. In the following analysis, it is important to understand that a designation of catastrophic impairment does not entitle the applicant to any specific benefit. Its only impact is to increase the coverage limit available to the applicant to $1 million for medical and rehabilitation and attendant care benefits.
10In the current case, there are no outstanding benefits in dispute, nor has the applicant exhausted the lower benefit limits that were available to him. Thus, there is no practical impact from a finding that, had he not passed away, he would be entitled to a higher coverage limit, as he cannot access those benefits post-mortem.
11I agree with the respondent’s position that there is no longer any “live controversy” between the parties that could be affected. As noted in Borowski, an appeal is moot when a decision will not have the effect of resolving some controversy affecting or potentially affecting the rights of the parties. Such a live controversy must be present not only when the action or proceeding is commenced but also when the court or tribunal is called upon to reach a decision.
12As such, I am persuaded by the respondent’s position and find the issue of whether the applicant sustained a catastrophic impairment as a result of the subject accident is moot.
13As set out by the Supreme Court of Canada in Borowski, there are three factors to be considered in determining whether a moot proceeding should nevertheless continue. These are:
a) Whether the parties maintain an adversarial relationship despite the mootness of the underlying issue;
b) Whether it is useful allocation of adjudicative resources to consider an issue that is now moot; and
c) Awareness of the Court’s proper law-making function.
14The onus is on the applicant to persuade me to exercise my discretion to hear this case despite the mootness. The applicant has not persuaded me to exercise that discretion and I decline to do so as the applicant has failed to provide the Tribunal with submissions. As such, I find that this proceeding is moot, and I decline to exercise my discretion to hear the matter.
ORDER
15It is ordered that this application is dismissed.
Released: February 9, 2023
___________________________
Tavlin Kaur Adjudicator