Citation: [S.C] v. Cooperators General Insurance Company, 2024 ONLAT 22-007951/AABS

Licence Appeal Tribunal File Number: 22-007951/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:

[S.C]

Applicant

and

Co-operators General Insurance Company

Respondent

DECISION

VICE-CHAIR: Craig Mazerolle

APPEARANCES:

For the Applicant: Alexander M. Voudouris, Counsel Anu Malhotra, Counsel Tanner Blomme, Counsel

For the Respondent: Eric Grossman, Counsel Melinda Baxter, Counsel

HEARD: By Way of Written Submissions

OVERVIEW

1While riding her bike, the applicant, [S.C], was involved in an automobile accident on February 14, 2020.

2On June 30, 2020, the applicant sent an OCF-1 to the respondent, Co-operators General Insurance Company, seeking accident benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”). Soon after, the applicant sent a disability certificate (“OCF-3”) to the respondent (dated July 8, 2020).

3The applicant was denied some accident benefits by the respondent, so she applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) on July 18, 2022. A case conference was held on May 28, 2023. Several other issues were listed in the case conference report and order, but, pursuant to a letter from the applicant (dated December 12, 2023), only two issues remain: a non-earner benefit (“NEB”) and interest.

4In short, due to the applicant’s OCF-3 being dated July 8, 2020, the respondent denied payment up to that date, pursuant to s. 36(3) of the Schedule.

5The applicant takes the position that she was unable to complete the OCF-3 prior to this date, because of her incapacity and brain injury. As such, she asks the Tribunal to address the interpretation and constitutionality of s. 36(3). While I am mindful of the significant challenges she has faced since the accident, I do not accept the applicant’s interpretation of this provision, nor do I find she has challenged the constitutionality of s. 36(3). In turn, I conclude that the applicant has not established payment to an NEB for the period of March 12 to July 7, 2020.

ISSUES

6The issues in dispute are:

i. Is the applicant entitled to an NEB of $185.00 per week from March 12, 2020 to July 7, 2020?

ii. Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

7I find the applicant has not demonstrated entitlement to an NEB for the period in dispute. As there is no overdue payment, the applicant is not entitled to interest.

ANALYSIS

8Section 12(1) provides that an insurer shall pay an NEB to an insured person who sustains an impairment as a result of the accident, if the insured person suffers a complete inability to carry on a normal life as a result of and within 104 weeks after the accident. Neither party’s submissions address the applicant’s entitlement to an NEB as it relates to the substantive test for benefits under s. 12(1). Rather, their submissions focus exclusively on s. 36(3).

9Due to the lack of any direct arguments concerning s. 12(1), I have focused my analysis on whether s. 36(3) is a bar to the applicant receiving payment of an NEB.

Parties’ Positions

10Section 36(3) states: “An applicant who fails to submit a completed disability certificate is not entitled to a specified benefit for any period before the completed disability certificate is submitted.”

11The applicant relies on two main arguments to support her claim for an NEB during the disputed period. First, the applicant claims that s. 36(3) should be read as: “A capable applicant who fails to submit…” According to the applicant, this interpretation is the only reasonable outcome when one applies the modern principle of statutory interpretation to the protections afforded to persons with disabilities under both the Human Rights Code, R.S.O. 1990, c. H.19 (“Code”), and s. 15(1) of the Canadian Charter of Rights and Freedoms, The Constitution Act, 1982, Sch. B to the Canada Act 1982 (UK), 1982, c. 11 (“Charter”).

12In turn, by accepting this interpretation, the applicant then claims that s. 36(3) cannot apply in this case. Briefly, the applicant highlights the November 1, 2021 report from Alanna Kayne, RN, that found she lacked the capacity to, in part, instruct counsel. This assessor also conducted a retrospective analysis that found the applicant was likely incapable of making reasoned decisions about insurance forms following the accident (report dated April 24, 2023). Finally, the applicant notes that the Public Guardian and Trustee (“PGT”) has been her statutory guardian of property since November 2, 2021.

13The applicant’s second argument is that, if her interpretation is not accepted, s. 36(3) should be found unconstitutional, pursuant to ss. 15(1) and 24(1) of the Charter. In her Notice of Constitutional Question (dated December 12, 2023), the applicant highlights age and mental disability as the two protected grounds that are being allegedly violated by s. 36(3). She also argues that s. 36(3) is not compliant with the protection of equal treatment under the Code.

14The respondent opposes the applicant’s interpretation, claiming there are no exemptions to s. 36(3). Instead, it argues that s. 36(3) is part of a larger system that supports consumer protection.

15In reply, the applicant asks for two alternative forms of relief: relief from forfeiture or a finding that there was a “reasonable explanation” for when her OCF-3 was delivered, pursuant to s. 34 of the Schedule.

16The applicant served a Notice of Constitutional Question on the Attorneys General of Canada and Ontario. However, in light of my findings below, I found it was not necessary to seek submissions from the Attorneys General.

Interpretation of s. 36(3)

17I do not accept the applicant’s interpretation of s. 36(3).

18To start, I do accept the applicant’s position that interpretation of the Schedule must be guided by the modern principle of statutory interpretation. This principle is best articulated by the Supreme Court of Canada in Rizzo & Rizzo Shoes Ltd. (Re), 1998 CanLII 837 (SCC), at para. 21:

Today there is only one principle or approach, namely, the words of an Act are to be read 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.

19The modern approach means it is not enough to look at the words before you. You must engage with the context, scheme, object, and legislative intention behind a statute or regulation. It is well established that consumer protection sits at the heart of the Schedule, so I accept that any interpretation of this regulation must consider this object and legislative intention: see, for example, Kellerman-Bernard v. Unica Insurance Company, 2023 ONSC 4423. I also accept the applicant’s position that the Schedule should not be interpreted in a manner that would produce absurd results: see Tomec v. Economical Mutual Insurance Company, 2019 ONCA 882 (“Tomec”) at para. 46.

20The modern approach also meets the requirement under s. 64(1) of the Legislation Act 2006, S.O. 2006, c. 21, Sch. F, that states statutory language should be interpreted in a large, liberal, and purposive fashion: “An Act shall be interpreted as being remedial and shall be given such fair, large and liberal interpretation as best ensures the attainment of its objects.”

21I also recognize that the Schedule should be interpreted in a manner that promotes the protections afforded to persons with disabilities under both the Charter and the Code. Following on the consumer protection mandate, the courts have also recognized that a clear object of the Schedule is “to provide fair compensation and minimize economic disruption in the lives of accident victims”: see para. 43 of Tomec. This objective necessarily engages the protection of persons with disabilities enshrined in both the Charter and the Code. Therefore, in addition to respecting the constitutional and quasi-constitutional status of the Charter and the Code, I find any interpretation of the Schedule must account for the value of protecting persons with disabilities.

22Finally, I recognize the severity of the applicant’s injuries. For instance, in a discharge summary from Guelph General Hospital (dated April 3, 2020), the applicant’s injuries included, in part: a traumatic brain injury, skull fracture, pelvic fracture, and a small brain contusion. I further find other hospital records note that the applicant exhibited extreme behavioural issues after the accident. The evidence before me also demonstrates that the applicant required significant assistance from her mother following the accident.

23However, despite my acceptance of the interpretative framework presented by the applicant, as well as the seriousness of her condition, I reach a different conclusion about how to interpret s. 36(3). Starting with the wording of s. 36(3), I find this provision is not a case where there is an ambiguity that needs to be clarified, nor are there multiple, possible interpretations to choose from. Rather, the wording of s. 36(3) is clear—until a completed OCF-3 is provided to the insurer, the insured person will not receive payment of a specified benefit.

24The clarity of this provision is then confirmed by the surrounding context in the Schedule. Specifically, the requirement to provide a completed OCF-3 in s. 36(2) is enforced by this prohibition on payment found in s. 36(3). In my view, this related provision supports the finding that there are not alternative interpretations that need to be addressed. Rather, s. 36(2) plainly requires an applicant to submit an OCF-3, and a failure to do so will mean no specified benefit is paid, pursuant to s. 36(3).

25Additionally, when considering the context of s. 36(3), I would note that the Part of the Schedule where this provision resides, i.e., “Procedures for Claiming Benefits”, includes s. 34: “A person’s failure to comply with a time limit set out in this Part does not disentitle the person to a benefit if the person has a reasonable explanation.” Whether this remedy applies to s. 36(3)—and, if so, whether it should be used in this particular dispute—will not be considered at this time for the reasons detailed below. However, the existence of a general, remedial provision within a part of the Schedule concerned with “Procedures for Claiming Benefits” highlights how legislators did not have to build specific exemptions into every procedural provision. Rather, legislators had the ability to draft individual provisions that are mandatory in nature, all the while allowing these same provisions to be subject to more general, remedial exemptions. In sum, not every provision needs to be read in a manner that also allows for exemptions to the mandatory requirements contained therein.

26Turning to the object and legislative intention behind the Schedule, I find it necessary to consider the impact of the applicant’s proposed interpretation on s. 36(3). If the applicant’s interpretation were accepted, s. 36(3) would be inoperative for any specified benefit claim made by an incapable applicant. I find such a conclusion is inconsistent with the object and legislative intention of this provision. Considering how the Schedule is focused on the provision of benefits for accident victims, the object behind this regulation necessarily engages the constitutional and quasi-constitutional protections of persons with disabilities. As such, I find legislators must have been aware of how this regulation (and the larger accident benefits regime) would impact these individuals, including those with capacity issues. Therefore, I find that an interpretation that would effectively remove these same individuals from the purview of s. 36(3) would, in turn, require the Tribunal to ignore the legislative intention at hand. Put another way, this interpretation would amount to assuming that a clearly identifiable group was not considered when drafting s. 36(3).

27Further, I find the applicant’s reliance on Tribunal case law is of limited assistance. Beyond the fact that I am not bound by the decisions of the Tribunal, I accept the respondent’s argument that the cases presented by the applicant provide little support for her interpretation. For instance, the applicant cites DC v TD Insurance Meloche Monnex, 2023 CanLII 77319 (ON LAT) (“DC”) for the finding that s. 12 must be interpreted in manner that allows for NEB payments to minors—a finding that, according to the adjudicator, avoids the absurd results discussed in Tomec. I accept this finding from DC, but the respondent then highlights how the adjudicator found at para. 42 [emphasis added]:

The respondent submits that the Schedule requires minor applicants to apply for NEBs once they reach age 18. However, there is nothing in the procedures for claiming benefits in Part VIII of the Schedule that allows for a deferral of notice of the claim or submission of an OCF-3 for minors.

28Similar to my finding regarding the lack of ambiguity in s. 36(3), the adjudicator in DC found she needed to account for how there was “nothing” in Part VIII that would support an interpretation to, say, allow for a deferral of notice. While I accept that my interpretation of s. 36(3) must account for the consumer protection mandate and the protection of persons with disabilities, DC is a reminder that adjudicators must be guided by the clear wording of the Schedule.

29Overall, I find the applicant has not established that her interpretation of s. 36(3) is correct.

Compliance with the Code and s. 15 of the Charter

30Turning to her other main argument, I conclude that the applicant has not established that s. 36(3) is either unconstitutional or non-compliant with the Code.

31Section 15(1) of the Charter states: “Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.”

32Section 24(1) of the Charter then states: “Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.”

33Section 1 of the Code states: “Every person has a right to equal treatment with respect to services, goods and facilities, without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, marital status, family status or disability.”

34Starting with the Charter, I find the applicant has not provided a sufficient basis to challenge the constitutionality of s. 36(3). A Notice of Constitutional Question was served in accordance with Rule 11 of the Licence Appeal Tribunal Rules, 2023, but meeting this procedural step alone is not enough to mount a successful challenge. In her submissions and Notice of Constitutional Question, the applicant’s arguments are limited to general comments about ss. 15(1) and 24(1). For instance, there is no case law laying out the test for determining whether a breach of s. 15(1) has been established. Instead, the applicant’s arguments about constitutionality mostly involve a continuation of the same submissions about interpretation addressed above. Overall, I conclude the applicant has not successfully challenged the constitutionality of this provision.

35While the applicant’s submissions on s. 15(1) focused on the protected ground of “mental disability”, I do note that she also cites “age” as a ground in her Notice of Constitutional Question. However, aside from this passing reference, I was not provided with a detailed account of how “age” is engaged by this case.

36For the Code, I similarly find the applicant has not provided a sufficient basis for establishing a breach. The applicant’s submissions in support of this non-compliance are largely limited to an assertion that there is a breach of the Code caused by both s. 36(3) and the respondent’s interpretation of the provision. Once again, I conclude there is an insufficient basis to establish non-compliance.

37The applicant adds in reply that the respondent did not address these arguments, a sign that it, according to the applicant, “wisely chose not to make such an egregious and untenable argument” as to turn to s. 1 of the Charter to counter her position. I again note that the applicant has not established a breach of either the Charter or Code at first instance, so I find there is no weight placed on the respondent’s decision not to address these arguments.

Applicant’s Other Arguments

38Turning to her other arguments, the applicant submits that the respondent would not accept her counsel’s retainer until it was submitted by the PGT. The applicant takes the position that the respondent cannot now claim that she was able to provide the OCF-3 at an earlier date. I place little weight on the respondent’s decision not to accept the retainer prior to the involvement of the PGT. I find this decision is unrelated to the OCF-3, and, once again, the language of s. 36(3) is clear and mandatory.

39Additionally, the applicant highlights the difficulty that her mother had accessing the facility where she was staying following the accident, due to the public health measures put in place to address the COVID-19 pandemic. According to the applicant, these measures further exacerbated the difficulties caused by her incapacity, because they were another barrier to her completing an OCF-3. While I am mindful of these additional challenges, I again note that the language of s. 36(3) is mandatory. I also do not have evidence to show how these public health measures impacted her mother’s ability to access the applicant during the period between the accident on February 14, 2020 and the start of the public health measures in March 2020.

40Finally, I will not consider the applicant’s alternative forms of relief at this time. Once again, in reply, the applicant asked for relief from forfeiture or a finding that there was a “reasonable explanation” pursuant to s. 34 of the Schedule. These arguments were first raised in reply, and, therefore, the respondent was not provided with a chance to respond. Due to the respondent’s inability to present a potential defense to these requests, I will not consider these requests.

Conclusion

41Taken together, I do not accept the applicant’s interpretation of s. 36(3). I further find the applicant has not demonstrated either the unconstitutionality or Code non-compliance of this provision. Rather, I accept that the respondent was entitled to engage s. 36(3) to bar the applicant from receiving an NEB prior to receipt of the OCF-3.

42I further find I am not able to consider whether relief from forfeiture or s. 34 of the Schedule may apply to this dispute at this time.

Interest

43Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. Since there are no overdue payments, no interest is owing.

ORDER

44For the above reasons, I find:

i. The applicant is not entitled to payment of the NEB from March 12, 2020 to July 7, 2020.

ii. No interest is owing.

iii. The application is dismissed.