Licence Appeal Tribunal File Number: 23-008961/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:
The Estate of Sivanandan Ganesu, deceased
Applicant
and
BelairDirect Insurance Company
Respondent
DECISION
PANEL:
Hande Bilhan, Tami Cogan, Adjudicators
APPEARANCES:
For the Applicant:
Doug Q. Wright, Counsel
For the Respondent:
Julie Dool, Representative
Christine McKenna, Counsel
Megan Murphy, Counsel
Hearing Reporter:
Breanna Clancy
Interpreter:
Ignasious Selliah - (Tamil Language)
Heard by Videoconference:
August 12, 2024
OVERVIEW
1Sivanandan Ganesu, the applicant, was involved in an automobile accident on November 1, 2018, and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”). The applicant was denied benefits by the respondent, Belair Direct Insurance, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
2The applicant died on June 20, 2023 intestate and the Tribunal application was commenced by counsel on July 26, 2023. To date an Estate Trustee has not been appointed by the Superior Court.
3A case conference was held on January 22, 2024.
PRELIMINARY ISSUE
4The preliminary issue to be decided:
- Is the applicant barred from proceeding with the application because it was filed after the applicant’s death without the appointment of an Estate Trustee?
RESULT
Preliminary Issue
5The application was not properly commenced. The counsel who filed the application has not satisfied the Tribunal that he had legal standing to bring a claim on behalf of the deceased and is acting without instructions.
6The application is dismissed.
ANALYSIS
The Application Was Not Properly Commenced
7We find that the respondent has demonstrated, on a balance of probabilities, that the application was not properly commenced.
8The applicant passed away on June 20, 2023, at the age of 52. He did not have a will.
9The Tribunal application was filed on July 27, 2023, by counsel Doug Wright.
10A case conference was held on January 22, 2024. The case conference order set a preliminary issue hearing at the outset of a 5-day oral hearing, to determine if the applicant is barred from proceeding with the application because it was filed after the applicant’s death without the appointment of an Estate Trustee.
11As of today’s hearing, almost 13 months after the application was filed, the applicant’s estate does not have an executor, administrator or trustee.
12The respondent submits that absent an estate trustee, there was no person with legal authority to initiate and file the Tribunal application. There is also nobody who can provide instructions nor direct the Tribunal proceeding on behalf of the applicant’s estate. The respondent requested that the Tribunal dismiss the application.
13The respondent relies on the following case law to argue their position:
Chandrarajah vs. Economical Insurance, 2024 ONLAT 22-002287/AABS, [Chandrarajah];
Kanthasamy Karthigesu v. Wawanesa Mutual Insurance Company, 2016 ONFSCDRS 269;
Jamil Toma v. State Farm Mutual Automobile Insurance Co., 2014 ONFSCDRS 171, [Toma];
The Estate of Delia Arnold v. Cumis General Insurance Company, 2017 ONFSCDRS 336;
Chechelashvili v. Jevco Insurance Company, 2016 ONFSCDRS 189; and,
Draganov v. Certas, 2023 CanLII 122934 (ON LAT).
14At the hearing, Mr. Wright acknowledged that the applicant does not have an appointed trustee and therefore, he does not have instructions from a representative of the applicant’s estate. He submits the dispute was underway before the applicant died and that disputed treatment plans and an OCF-19 for the determination of catastrophic impairment had been sent to the insurer early in June of 2023. The applicant’s wife had applied to become the estate trustee through separate counsel in March of this year, however he was not aware of the status of the application as it rests with the Superior Court.
15We note that the Tribunal is a creature of statute, and our authority in this case lies in the Insurance Act R.S.O. 1990, CHAPTER I.8 (“the Act”).
16The legal requirement under Section 280(2) of the Act states that the "insured person"...may apply to the Licence Appeal Tribunal to resolve a dispute…". A legally recognized representative, either an executor or an estate trustee can “stand in the shoes” of the deceased and pursue a claim for accident benefits.
17The Tribunal does not have jurisdiction with respect to estate matters. Jurisdiction to appoint an estate trustee belongs to the Superior Court of Justice pursuant to the Estates Act, R.S.O. 1990, c. E.21 and the Rules of Civil Procedure.
18The Licence Appeal Tribunal Rules (“Rules”) do not provide a process for the Tribunal to appoint an estate trustee. The Statutory Powers Procedure Act, RSO 1990, c S.22 (“SPPA”) applies to neither a proceeding to which the Rules of Civil Procedure apply, nor to a proceeding before the Superior Court of Justice.
19We therefore agree with the respondent that the Tribunal has no authority to remedy the lack of an estate trustee. We have not been asked to recognize any person as having legal authority to act on behalf of the applicant and note that no such person exists in the claim before us.
20Although Mr. Wright submits that the dispute had commenced before the applicant passed away, we do not find that submitting treatment plans to the insurer provides counsel with instructions to commence a Tribunal application. It is unclear to us who has been instructing Mr. Wright with respect to this application. Mr. Wright has not demonstrated that he was authorized to commence the application.
21While we are not bound by decisions rendered by other adjudicators of the Tribunal, nor of arbitrators of the Financial Services Commission of Ontario, we find Adjudicator Jarda’s rationale in her decision in Chandrarajah compelling. We also find the Toma and Michael Wentzel v. RBC General Insurance Company, 2013 ONFSCDRS 33 [Wentzel], decisions to be persuasive, and we take guidance from all three decisions.
22In Toma, an application for arbitration was commenced by a deceased insured’s counsel. While the insured’s widow attended the pre-hearing discussion, it was agreed that the arbitration process could not go forward until an administrator or representative of the insured’s estate was appointed. The respondent’s counsel later advised that the insured’s family had not taken any steps to have an estate trustee appointed and that they had no plans to do so. The respondent sought to have the application dismissed. The arbitrator agreed with the respondent and found that the insured’s claims had become vexatious as there was no legally viable way of pursuing the claims.
23In Wentzel, an application was commenced by the insured’s representative after the insured passed away, without an estate trustee having been appointed. The Respondent moved to dismiss the application as a nullity because of the insured’s death and sought costs against the insured’s representative for commencing an unauthorized proceeding. There was no evidence that anyone had undertaken to administer the insured’s estate. The arbitrator concluded that the application had not properly been constituted and was an irremediable nullity and dismissed the application. He also ordered cost against the insured’s representative, which was later upheld on appeal.
24As in both Toma and Wentzel, the case at hand was also filed after the insured’s death, without a legally recognized representative, and the respondent moves to dismiss the application. We agree with the respondent that without a legally recognized representative the counsel had no authority to file this application and it cannot proceed.
25We find that the application was not properly commenced and must be dismissed.
26It is not necessary for us to consider the deceased applicant’s entitlement to the disputed treatment plans, catastrophic impairment, interest, and a s.10 award as neither the applicant nor an estate representative acting on his behalf pursued this claim for accident benefits.
CONCLUSION AND ORDER
27For the reasons outlined above, we find that:
The application was not properly commenced.
The application is dismissed.
28The Tribunal file will be closed.
Released: August 23, 2024
Tami Cogan
Adjudicator
Hande Bilhan
Vice-Chair