Licence Appeal Tribunal
RECONSIDERATION DECISION
Before: Sandeep Johal, Vice-Chair
Licence Appeal Tribunal File Number: 21-007355/AABS
Case Name: Andrew Botbyl v. Heartland Farm Mutual Inc.
Written Submissions by:
For the Applicant: Peter Cho, Counsel
For the Respondent: David Zuber, Counsel
OVERVIEW
[ 1 ] On August 22, 2023, the respondent requested a reconsideration of the Tribunal’s decision dated August 2, 2023 (“decision”).
[ 2 ] It arises out of a decision in which the Tribunal found the applicant is entitled to relief from forfeiture related to their application to the respondent, Heartland Farm Mutual Inc. and the applicant’s application for accident benefits to Economical Insurance is rescinded.
[ 3 ] The grounds for a request for reconsideration are found in Rule 18.2 of the Licence Appeal Tribunal, Animal Care Review Board, and Fire Safety Commission Common Rules of Practice and Procedure, Version I, (October 2, 2017) as amended (“Common Rules”). 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.
[ 4 ] The respondent seeks a reconsideration of the decision under Rule 18.2(b), arguing that 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.
[ 5 ] The respondent seeks that the original decision be reconsidered and reversed.
RESULT
[ 6 ] The respondent’s request for reconsideration is granted. The decision ordering relief from forfeiture is rescinded.
[ 7 ] The applicant is not entitled to relief from forfeiture.
PROCEDURAL ISSUES
Respondent did not breach any Rule or order in submitting a 22-page reconsideration request.
[ 8 ] The applicant submits the respondent’s submissions, at 22 pages, is contrary to Rule 18.1(c)(i) of the Licence Appeal Tribunal Rules (“new Rules”) which sets out a 10-page limit in a reconsideration request and accordingly, the respondent’s submissions over the 10 pages should not be considered.
[ 9 ] The respondent’s position is that the new Rules do not apply to this case and that was confirmed by the case management officer at the Tribunal.
[ 10 ] The respondent’s reconsideration submissions will be considered in their entirety as the new Rules do not apply to this matter. Rule 18.6 states that this Rule applies to any request for a reconsideration of a decision issued on or after August 21, 2023. The original decision was released to the parties on August 2, 2023 and therefore the Common Rules of Practice and Procedure (October 2, 2017) (the “Common Rules”) apply to this matter. There was no page limit on a reconsideration under the Common Rules and the respondent’s 22-page submissions are not contrary to the Common Rules or any order.
ANALYSIS
[ 11 ] The test for reconsideration under Rule 18.2 involves a high threshold. The reconsideration process is not an opportunity for a party to re-litigate its position where it disagrees with the Tribunal’s decision, or with the weight assigned to the evidence. The requestor must show how or why the decision falls into one of the categories in Rule 18.2.
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.
[ 12 ] The respondent has established that the Tribunal’s original decision had errors of law or fact such that the Tribunal would likely have reached a different result had the errors not been made, for the following reasons.
[ 13 ] The respondent submits that the Tribunal’s original decision, which found that it has jurisdiction to grant equitable relief and allowed the applicant to rescind their application to Economical Insurance and apply for benefits through the respondent, was a legal error.
[ 14 ] The original decision found that the Tribunal has jurisdiction to provide equitable relief because neither the Schedule nor the Licence Appeal Tribunal Act, 1999, S.O. 1999, c.12. Sched G (the “LAT Act”) nor s. 129 of the Insurance Act expressly prohibit such a remedy. It is the respondent’s position that the decision is erroneous as the Tribunal does not have jurisdiction to grant the equitable remedy of relief from forfeiture.
[ 15 ] According to the respondent, the Tribunal erred by:
a. Acting outside its jurisdiction by determining that it has the authority to grant equitable relief including relief from forfeiture;
b. Improperly inferring that its enabling statute in conjunction with other statutes binding on the Tribunal conferred authority to administer rules of equity;
c. Dismissing the established case law on this matter as unpersuasive and distinguishable.
[ 16 ] The respondent submits the Tribunal is a creature of statute and is limited to the jurisdiction expressly granted by its enabling legislation and that enabling legislation does not grant it jurisdiction to order equitable remedies. Furthermore, it is the respondent’s position that equitable relief are court granted remedies whose powers to do so are expressly set out in statutory authorities.
[ 17 ] The respondent relies upon the Ontario Court of Appeal case of Kozel v. The Personal Insurance Company, 2014 ONCA 130 at para. 29 where the court held that the remedy of relief against forfeiture is equitable in nature and purely discretionary. The origin and purpose of relief from forfeiture were briefly reviewed by Doherty J.A. in Ontario (Attorney General) v 8477 Darlington Crescent, 2011 ONCA 363 at paras. 56-57, where it was stated that:
Courts of equity have always had the power to relieve against forfeiture of property consequent upon a breach of contract. That power is not expressed in various statutes dealing with specific kinds of contracts (e.g., contracts of insurance, leases) and has been given more general expression in s. 98 of the Courts of Justice Act.
[ 18 ] According to the respondent, the express power of the courts to grant equitable relief is couched in s. 96(3) of the Courts of Justice Act (“CJA”) where it states that only the Court of Appeal and the Superior Court of Justice, exclusive of the Small Claims Court, may grant equitable relief, unless otherwise provided. Also, in s. 98 of the CJA that only a court may grant relief against penalties and forfeitures.
[ 19 ] The respondent further submits that s. 129 of the Insurance Act grants the courts the power to relieve against forfeiture and not tribunals:
Where there has been imperfect compliance with a statutory condition as to the proof of loss to be given by the insured or other matter or thing required to be done or omitted by the insured with respect to the loss and a consequent forfeiture or avoidance of the insurance in whole or in part and the court considers it inequitable that the insurance should be forfeited or avoided on that ground, the court may relieve against forfeiture or avoidance on such terms as it considers just. (Emphasis in original)
[ 20 ] It is the respondent’s position that the legislature intended for courts and not tribunals to grant equitable relief and the Tribunal’s own jurisprudence has accepted that the express use of the word “court” excludes administrative bodies from possessing the authority to grant equitable remedies. See, for example, Hu v. Aviva General Insurance Company, 2023 CanLII 34474 (ON LAT) at para 30. (“Hu”); Dooley v. Aviva General Insurance, 2021 CanLII 111189 (ON LAT) at para. 22 (“Dooley”); Harsanyi v. The Co-Operators General Insurance Company, 2021 CanLII 35592 (ON LAT) at para. 18 (“Harsanyi”); V.A.D. v. Intact Insurance Company, 2020 CanLII 47710 (ON LAT) at para. 25 (“V.A.D”); and Ko v. Wawanesa Mutual Insurance Company, 2023 CanLII 62938 (ON LAT) at para. 13 (“Ko”).
[ 21 ] The applicant takes the position that the Tribunal in the original decision interpreted and confirmed the Tribunal’s jurisdiction to grant equitable remedies, including relief from forfeiture and therefore the original decision was correct and harmonious with the statutory scheme and its legislative intent.
[ 22 ] It is the applicant’s position that the matter was before the Superior Court of Justice in Yaromich and Botbyl v. Heartland, 2021 ONSC 3759 (“Yaromich”). In that decision, the Court found that it does not have jurisdiction regarding an accident benefit dispute and referred the matter to this Tribunal to hear and decide. However, the Court stated that if it had jurisdiction, it would have “no hesitation” in granting relief from forfeiture (Yaromich at para. 52)
[ 23 ] Furthermore, the applicant submits the more recent Divisional Court decision in Akinyimide v. Economical Mutual insurance Company, 2023 ONSC 5272 (“Akinyimide”) found that the Tribunal has jurisdiction to apply equitable remedies contained in the Insurance Act. It is the applicant’s position that the Court in Akinyimide reversed the Tribunal’s decision and found that the Tribunal has broad powers to efficiently resolve accident benefit disputes, including the ability to grant equitable remedies, and that this decision is current, binding and relevant to this reconsideration decision. According to the applicant, the reasoning in Akinyimide is consistent with the Tribunal’s reasons in the original decision and should be followed.
[ 24 ] The applicant further submits that in s. 129 of the Insurance Act, the word “court” is not defined whereas in other parts of the Insurance Act the word is defined in Parts V and VII. If the legislature intended “court” to mean only the Superior Court of Justice or a judge thereof, it would have included a definition for the purposes of s. 129. According to the applicant, the word “court” was meant to have broad meaning to allow the Tribunal to grant relief from forfeiture.
[ 25 ] In summary, according to the applicant, the Tribunal did not make any error of law in its original decision such that the Tribunal would have reached a different result.
[ 26 ] I would not agree with the applicant that the Tribunal has the express statutory authority to award equitable remedies.
[ 27 ] Contrary to the applicant’s submissions, the Divisional Court did not confirm that the Tribunal has jurisdiction to grant equitable remedies at all. Rather, the Court declined to decide that point because, in that case, the issue was whether the Tribunal could grant a statutory remedy found in s. 131 of the Insurance Act (see Akinyimide at para 26).
[ 28 ] This issue has been addressed by the Tribunal on several occasions and all decisions have been consistent in their analysis that s. 129 does not apply to the Tribunal because of the specific use of the word “court” in that section. See, for example, Hu at paragraph 30, where the Tribunal stated, “Section 129 uses the word “court.” The Tribunal is not a court. I interpret this to mean that the legislature did not intend for s. 129 to be available to the Tribunal as court is explicitly noted while Tribunal is not.”
[ 29 ] In Dooley at paragraph 22, the Tribunal stated that s. 129 used the word “court” and not the phrase “Licence Appeal Tribunal”. “By granting the Tribunal exclusive jurisdiction over accident benefit disputes under s. 280(2) of the Insurance Act and then stating that these disputes that must be “resolved in accordance with” the Schedule through s. 280(4), I find that s. 129 is “inconsistent” with these provisions. As such, I am not satisfied that s. 129 applies to accident benefit disputes before the Tribunal.”
[ 30 ] In Harsanyi at paragraph 18, it was held that the Tribunal is not a court and cannot grant relief under s. 98 of the CJA. Similarly, in V.A.D. at paragraph 25 it was stated that s. 98 of the CJA does not grant tribunals the jurisdiction to grant relief against forfeiture.
[ 31 ] In Ko at paragraph 13, the Tribunal held that in reading the Statutory Powers Procedure Act, the LAT Act, the Insurance Act and the Tribunal’s Common Rules of Practice and Procedure, it finds “they do not convey the power to grant equitable remedies onto the Tribunal.”
[ 32 ] This interpretation would also be consistent with other Tribunals such as the Human Rights Tribunal. See for example Arzem v. Ontario (Community and Social Services), 2005 HRTO 11 at paragraph 230 (“Arzem”) where it was held that as a creature of statute, the Tribunal has no inherent jurisdiction at all and that the Tribunal’s absolute discretion to control its own process is quite different from inherent jurisdiction. Absolute discretion does not endue the Tribunal with authority to enter the jurisdictional field that is reserved generally for Superior Courts.
[ 33 ] Also, in Toussaint v. Ontario (Health and Long Term Care), 2010 HRTO 2102 at paragraph 17, the Human Rights Tribunal stated that equitable remedies are traditionally within the inherent jurisdiction of superior courts and that when the legislature confers such powers on tribunals, it will be expressed in “clear and unequivocal” language.
[ 34 ] I agree with the respondent and find that the original decision was based on an error of law such that the Tribunal would likely have reached a different result had the error not been made. I find the Tribunal in its original decision made the following legal errors:
a. In paragraph 22, it was held that the Tribunal has jurisdiction to provide equitable relief because the Schedule does not prohibit it.
b. In paragraph 39, relying on obiter dicta comments from Justice Turnbull from the Superior Court of Justice where the applicant first went to dispute this claim and Justice Turnbull found that he does not have jurisdiction to deal with an accident benefits claim.
c. In paragraphs 42-43, relying on obiter dicta comments from the Court of Appeal in a priority dispute claim.
d. In paragraphs 44-49, where it was found that s. 129 of the Insurance Act applies to the Tribunal.
Finding jurisdiction because the Schedule does not prohibit a finding of relief from forfeiture is an error.
[ 35 ] I find that the Tribunal erred when it found that the Tribunal has jurisdiction to grant equitable remedies because the Schedule does not prohibit it. Although I am alive to the unfortunate situation the applicant finds himself in, the Tribunal cannot try to fill a gap in the legislation if one is found to exist. The original decision did just that. In my view, that was an error, the Tribunal cannot confer powers to itself that are not clearly bestowed on it by statute. To do so, likely would be creating a patchwork of the rule of law: see Arzem at paragraph 232.
Relying on obiter dicta comments from Justice Turnbull to deduce that the Tribunal has jurisdiction to grant equitable remedies is an error.
[ 36 ] In the original decision, the Adjudicator relied on Justice’s Turnbull’s obiter dicta comments that if he had jurisdiction, he would have “no hesitation” in granting relief from forfeiture. Obiter dicta comments are opinions or incidental remarks by a judge that are not essential to the actual decision.
[ 37 ] The obiter dicta comments were in relation to the question of whether the court should grant the equitable remedy, it was not a determination that the Tribunal has the authority to do so: see Yaromich at paragraph 52.
[ 38 ] Furthermore, at paragraph 50 in Yaromich, the Superior Court stated that it was not pointed to any section of the legislation that prevents the applicant from withdrawing their first application and proceeding with their second as long as only one application proceeds at a time. That is not the situation in the present case, here the applicant has two similar applications proceeding against two different insurers. I am not aware of, nor were any submissions made by either party, that the applicant has withdrawn either one of the applications so that only one application remains. In my view, there is no gap in the legislation or the requirement for the Tribunal to be empowered to use any equitable remedy. An applicant is free to withdraw their application for accident benefits at any time before a decision is rendered by the Tribunal. The consent of the Tribunal or the respondent is not required to withdraw an application. But once two applications are made, then the Disputes Between Insurers Regulation 283/95 (“Priority Dispute Regulation”) applies which is a Regulation that the Tribunal does not have jurisdiction over.
[ 39 ] As a result of the above, I find the Tribunal erred in its original decision in finding that it had the authority to grant relief from forfeiture to allow the applicant to rescind their first application. The choice to do so, lies exclusively with the applicant and they have not chosen to do so.
Relying on obiter dicta comments from the Court of Appeal on a hearing under the Priority Dispute Regulation in an unrelated matter was an error.
[ 40 ] The Tribunal’s original decision also relied on obiter dicta comments from the Court of Appeal in Continental Casualty Company v. Chubb Insurance Company of Canada, 2022 ONCA 188 (“Continental”) which was a priority dispute between insurers under the Priority Dispute Regulation and the Arbitration Act, 1991, S.O. 1991, c. 17.
[ 41 ] I find the Tribunal in the original decision erred when relying on the obiter dicta comments to suggest that they applied to the Tribunal. Continental was not a dispute under the Schedule and it did not make reference to s. 129 of the Insurance Act. Furthermore, the Court of Appeal did not refer to the Tribunal as having the authority to invoke relief from forfeiture in those obiter dicta comments. To infer otherwise, is an error of law such that the Tribunal would likely have reached a different result had the error not been made.
Finding that s. 129 of the Insurance Act and the word “court” applies to the Tribunal was an error.
[ 42 ] Lastly, I find the Tribunal erred in stating that the word “court” in s. 129 of the Insurance Act means that “one can reasonably assume it excludes administrative tribunals, such as this one” (see paragraph 47), but then went onto conclude that the Tribunal has the authority to grant relief from forfeiture in s. 129 because it forces an applicant to “frivolously exhaust their appeal options with the Tribunal in order to advance to the Court and attempt to seek a potential remedy…”. The decision went on to state that forcing applicants to exhaust their options at the Tribunal before accessing a remedy through the courts is “contrary to the consumer protection mandate” and “is not in accordance with the overall scheme of the Schedule” (see paragraphs 48-49 of the original decision), is an error of law which likely would have resulted in a different result.
[ 43 ] The Tribunal attempted to craft a remedy in the Schedule where one does not exist. The Tribunal’s role is to apply the legislation as it reads. There was no ambiguity which required an analysis of the principles of statutory interpretation. Section 129 specifically refers to “court” and as acknowledged by the Tribunal “one can reasonably assume it excludes administrative tribunals”. However, despite mentioning that, the Tribunal went on to read into the Schedule a remedy that does not exist by granting itself the authority to do what was not explicitly set out for a Tribunal.
[ 44 ] As a result of the above, I find that 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.
CONCLUSION & ORDER
[ 45 ] The respondent’s request for reconsideration is granted, the Tribunal’s decision released August 2, 2023 is rescinded.
[ 46 ] The applicant is not entitled to relief from forfeiture.
Sandeep Johal
Vice-Chair
Tribunals Ontario – Licence Appeal Tribunal
Released: April 5, 2024