Licence Appeal Tribunal File Number: 25-006173/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:
Colleen M. Morrissey
Applicant
and
Geico Insurance Company
Respondent
PRELIMINARY ISSUE DECISION AND ORDER
ADJUDICATOR:
Trina Morissette, Vice-Chair
APPEARANCES:
For the Applicant:
Alexandra Roman, Counsel
For the Respondent:
Michael Blinick, Counsel
HEARD: In writing
OVERVIEW
1Colleen M. Morrissey, the applicant, was involved in an accident on July 5, 2022, in the state of New York and sought benefits from Geico Insurance Company, the respondent, 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 and applied to the Licence Appeal Tribunal (“the Tribunal”) for resolution of the dispute.
PRELIMINARY ISSUES IN DISPUTE
2Pursuant to the Case Conference Report and Order (“CCRO”) dated October 22, 2025, the respondent raised the following two preliminary issues:
i. Is the applicant an “insured person” as defined in section 3(1) of the Schedule?
ii. Does the Tribunal have jurisdiction under section 280 of the Insurance Act, R.S.O. 1990, c. I.8 (“the Act”) in this matter?
RESULT
3The Tribunal has jurisdiction to consider equitable remedies, including estoppel.
4Through the doctrine of estoppel by convention, the applicant is an “insured person” pursuant to the Schedule.
5The Tribunal has jurisdiction to determine the application herein.
BACKGROUND
6The parties in this matter filed an Agreed Statement of Facts which includes the following information.
7The applicant is a resident of Ontario. On July 5, 2022, the applicant was a pedestrian in the town of Salina in the state of New York when she was struck by a vehicle insured by the respondent. The applicant was hospitalized; she suffered multiple fractures and reported experiencing ongoing pain through multiple parts of her body. At the time of the accident, she was not insured under any motor vehicle liability insurance policy.
8On July 28, 2022, the applicant submitted an Application for Accident Benefits (OCF-1) to the respondent. On August 12, 2022, the respondent’s adjuster confirmed receipt of the completed OCF-1 and notified the applicant that she had assumed handling of the applicant’s claim pursuant to section 64(21) of the Schedule.
9In further correspondence dated August 12, 2022, the adjuster provided the applicant with information regarding the accident benefits available to her pursuant to the Schedule. The adjuster advised her that she may qualify for non-earner benefits (“NEB”) but that the Schedule required her to submit a Disability Certificate (OCF-3). The letter also outlined the applicant’s right to dispute any determination made by the respondent.
10The applicant submitted an Election Form (OCF-10) and Disability Certificate (OCF-3) to the respondent by August 24, 2022.
11The respondent approved various treatment plans (OCF-18) and provided payment for various invoices (OCF-21) through the means of OCF-9 Explanation of Benefits. All was done in reference to the Schedule. Attendant care benefits (“ACB”) were also approved in line with section 19 of the Schedule. In correspondence dated August 30, 2022 from the adjuster to the applicant, the respondent acknowledged the maximum medical rehabilitation and ACB benefits limit of $65,000.00 and advised the applicant that “[w]e have reviewed a number of other medicals/invoices and would like to bring to the attention of you potentially exceeding these policy limits.” In correspondence dated September 22, 2022, the respondent approved the applicant’s claim for NEB in the amount of $1,273.23.
12In subsequent correspondence dated September 22, 2022, the respondent advised the applicant that it had recently learned the applicant was potentially insured by travel insurance at the time of the accident, and it explained to her how this coverage could affect the applicant’s entitlement to accident benefits provided for by the Schedule.
13On October 7, 2022, in an email exchange between the respondent’s adjuster and the applicant’s legal representative, the applicant was advised that she was not entitled to the benefits provided for under the Schedule and that the respondent would provide her coverage of $50,000.00 USD in accordance with the statutory obligations of the state of New York.
14On February 17, 2023, the respondent advised the applicant that the available policy limit of $50,000.00 USD was nearly exhausted. A payment ledger was provided. The respondent confirmed the remaining amount under the policy limit would be used to fund a portion of the requested expenses and the file would be closed upon making the referenced payment. On February 28, 2023, the respondent confirmed that the benefits available to the applicant had been exhausted and no further payments would be considered.
15On May 9, 2023, the applicant submitted an OCF-19 for catastrophic designation (CAT). In an email response to the applicant’s legal representative on May 9, 2023, the respondent stated:
I am very confused by your OCF 19, Application as this is not a SABS claim.
As per our multiple conversations [the respondent’s] American PIP policy offered $50K policy limits which as you know are exhausted.
SABS does not apply to this claim as she was a pedestrian at the time of the loss, she is not a licensed ON driver therefore; does not have the election of the ON SABS – Again, no option for SABS coverage and no available addition (catastrophic impairment) under [the respondent’s] PIP coverage.
Can you please give us an explanation on why we are receiving the OCF forms when it’s not a SABS claim?
ANALYSIS
16The respondent submits that the statutory framework governing benefits provided for by the Schedule is clear that entitlement to these benefits is reserved for “insured persons” under an Ontario motor vehicle liability policy or when motor vehicle accidents occur within Ontario. Here, the applicant was not insured under any Ontario motor vehicle liability insurance policy, and the accident occurred outside of Ontario. Therefore, the respondent submits the statutory preconditions for the applicant to seek entitlement to benefits provided for in the Schedule have not been satisfied.
17The respondent relies on Young v. Ontario (Minister of Finance), 2003 CanLII 23640 (ON CA) and submits that for the applicant to qualify for benefits pursuant to the Schedule in a situation where an accident occurs outside of Ontario, the applicant would need to be an “insured person” in respect of a particular motor vehicle liability policy issued in Ontario. Here, the respondent submits that the insurance policy was issued in accordance with the legislative authority of the state of New York, as the driver was ordinarily resident in the state of New York at all material times. The applicant did not have a motor vehicle liability insurance policy of her own at the time of the accident, nor was she insured under any other Ontario policy.
18The respondent also submits that the Tribunal’s authority to adjudicate disputes is strictly statutory and limited to the adjudication of disputes concerning entitlement and/or the amount of a benefit. The respondent argues that the Tribunal cannot assume jurisdiction where the claimant was never an “insured person” and equitable principles cannot override statutory ineligibility or be invoked to create an obligation for the respondent to pay the applicant benefits provided for by the Schedule.
19The applicant submits that the respondent is estopped from denying that the applicant is an “insured person” and from denying entitlement to benefits pursuant to the Schedule. The applicant also submits that the Tribunal has jurisdiction to determine this matter because the dispute concerns entitlement to statutory accident benefits which falls squarely within section 280 of the Act. Here, by choosing to adjust and pay benefits pursuant to the Schedule, the respondent created a sufficient connection to Ontario law to engage the Tribunal’s jurisdiction. Therefore, the Tribunal clearly has jurisdiction to render a decision with respect to whether the respondent is estoppel from denying the applicant’s claim.
20The respondent did not file reply submissions.
The Tribunal’s broad powers allow it to consider the issues raised by the parties
21Both parties accept that the Tribunal has jurisdiction to resolve disputes in relation to an insured’s entitlement to statutory accident benefits. However, as set out above, the respondent challenges the Tribunal’s jurisdiction to hear this matter and argues that it is not authorized to exercise equitable principles to allow the application to be considered an “insured person”. Consequently, it argues that the Tribunal ought to find that it does not have the jurisdiction to adjudicate the subject dispute and the application should be dismissed.
22For this argument, the respondent relies on Intact Insurance Co. of Canada v. Lombard General Insurance Co. of Canada, 2015 ONCA 764 (“Intact”), State Farm v. AXA, Arbitration Award, June 11, 2023 (“State Farm”), and Zaidan Group Ltd. V. London (City), 1990 CanLII 2624 (ONCA) (“Zaidan Group”) and submits that Ontario’s courts have consistently held that equity cannot override statutory schemes. It argues that the benefits provided by the Schedule are purely statutory rights, and not equitable rights, and that the equitable objective of the Schedule does not allow for a claim for benefits pursuant to the Schedule to be transformed into an equitable claim. As a result, equitable principles, such as promissory estoppel or any other equitable doctrine, cannot create entitlement to benefits provided for by the Schedule where the governing statute does not provide for such an outcome.
23Relying on Stegenga v. Economical Mutual Insurance Company, 2019 ONCA 615, Botbyl v. Heartland Farm Mutual Inc., 2025 ONSC 3349 (“Botbyl”) and several Tribunal decisions, the applicant argues that the Tribunal’s jurisdiction is broad and includes the authority to apply equitable relief. She also submits that the respondent’s position runs counter to the consumer protection mandate of the Schedule.
24I am not persuaded by the caselaw put forward by the respondent. In Intact, the plaintiff raised the equitable doctrine of laches. The Court of Appeal found that the defence of laches was not available because of the removal of a statutory provision preserving the use of equitable defences from the Limitation Act in its new Ontario limitations scheme. I find that not only are the facts in that matter distinguishable for the facts herein, I note that the Court specifically qualified at para. 57 of its decision: “I wish to make clear that this decision does not address the availability of equitable defences (such as waiver, estoppel and acquiescence) to the extent not founded solely on a plaintiff’s delay in initiating its claim.” The Court therefore did not dismiss the possible consideration of other equitable relief in a context other than the limitation period.
25With respect to State Farm, the respondent did not point me to any specific finding or explain how the facts or findings in State Farm apply to the matter herein. In any event, I am not bound by an arbitration decision.
26In Zaidan Group, the city refused to pay the plaintiff interest on the overpayment of property taxes. The Court of Appeal found that the complete municipal code (the three applicable statutes) did not provide for repayment of interest except under a by-law. Since there was no by-law, there was no entitlement to interest. The Court commented that there was no gap in the legislation for the common law to fill. The doctrine of unjust enrichment therefore did not apply.
27Here, regarding the Tribunal’s enabling legislation, the Divisional Court found that the Tribunal has very broad jurisdiction and that its broad powers include the determination of any questions of law or fact that come before it: see Botbyl at para. 48. This includes equitable remedies. In Botbyl, the Court found that the Tribunal has the jurisdiction to consider relief from forfeiture.
28In Akinyimide v. Economical Mutual Insurance Company, 2023 ONSC 5272 (“Akinyimide”), referred to in Botbyl, the Court stated that there is nothing in section 280 of the Act that prevents the Tribunal from considering other sections of the Act, so long as the Tribunal’s decision is in accordance with the Schedule (at para. 17).
29Section 131(1)(b) of the Act states:
Waiver and estoppel
131(1) The obligation of an insured to comply with a requirement under a contract is excused to the extent that,
(b) the insurer’s conduct reasonably causes the insured to believe that the insured’s compliance with the requirement is excused in whole or in part, and the insured acts on that belief to the insured’s detriment.
30In Akinyimide, the Divisional Court found that section 131 of the Act codifies equitable remedies and that the Tribunal has the jurisdiction to apply it (at para. 23). For these reasons, I am unpersuaded by the respondent’s submission that the Tribunal lacks the jurisdiction to grant equitable remedies. The Court has recognized the Tribunal’s jurisdiction to consider and apply equitable remedies and the Act specifically provides for the application of estoppel.
31I therefore find that the Tribunal has the jurisdiction to consider and apply equitable remedies, and more specifically, estoppel. As per the Court, “section 131 of the Act provides protection to consumers which, in the absence of clear direction to the contrary, can and should be invoked by the Tribunal in appropriate circumstances”: see Akynyimide at para. 21.
Do the facts in this matter meet the test for the doctrine of estoppel?
32I find that, given the facts in this matter, the doctrine of estoppel by convention applies in this case.
33The facts herein are not in dispute.
34The applicant submits that the respondent’s representations left no ambiguity that the claim was being administered pursuant to the Schedule. The respondent approved various OCF-18s and OCF-6s, made multiple NEB payments all by using the Explanation of Benefits form per the Schedule and paid benefits all in reference to the Schedule. It repeatedly referenced non-CAT limits and advised the applicant of her right to dispute determinations before the Tribunal. Even after the respondent changed its position and advised that the applicant’s claim would be assessed pursuant to the state of New York’s statutory scheme, it nevertheless continued to pay her benefits pursuant to the Schedule.
35Having clearly represented that she was an insured entitled to benefits available per the Schedule, the applicant argues that the respondent cannot now, months later, assert that the benefits were provided under a New York PIP policy which wholly contradicts its previous representations. Relying on Ryan v. Moore, 2005 SCC 38, [2005] 2 SCR 53 (“Ryan”), the applicant submits that the respondent is estopped from denying she is an “insured person” and that her claim for accident benefits is governed by a statutory scheme other than the Schedule.
36In Ryan, the Supreme Court of Canada outlined, at para. 59, the following three criteria for the application of estoppel by convention:
i. The parties’ dealings must have been based on a shared assumption of fact or law: estoppel requires manifest representation by statement or conduct creating a mutual assumption. Nevertheless, estoppel can arise out of silence (impliedly).
ii. A party must have conducted itself, i.e., acted, in reliance on such shared assumption, its actions resulting in a change of its legal position.
iii. It must also be unjust or unfair to allow one of the parties to resile or depart from the common assumption. The party seeking to establish estoppel therefore has to prove that detriment will be suffered if the other party is allowed to resile from the assumption since there has been a change from the presumed position.
37The Supreme Court also explained that the “critical requirement” for estoppel by convention is that at the material time both parties must be of “a like mind”, that there is a “mutual assent” in the sense that “each is aware of the assumption of each other” (at paras 61-62).
38For the following reasons, I find that the applicant has satisfied the three-pronged test in Ryan and agree that the respondent made clear and unequivocal representations that the applicant’s claim was being assessed in accordance with the Schedule. Consequently, the applicant relied on those representations to her detriment.
39As previously noted, the respondent did not file reply submissions and it did not address the Ryan test in its initial submissions.
i. Assumption shared and communicated
40I find there is overwhelming evidence of an unequivocal shared assumption that the applicant’s claim was accepted and assessed pursuant to the Schedule. This evidence includes:
i. The submission and acknowledgement of receipt of the applicant’s Application for Accident Benefits (OCF-1) dated July 28, 2022.
ii. On August 12, 2022, the respondent’s adjuster notified the applicant through correspondence that she would be assuming carriage of the claim pursuant to section 64(21) of the Schedule. The adjuster also advised the applicant that the respondent did not have access to HCAI and therefore all correspondence, “including OCF 18’s and OCF 21’s” should be submitted directly.
iii. In subsequent correspondence dated August 12, 2022, the respondent provided an accident benefits package to inform the applicant of the benefits available to her through the automobile policy and the Schedule “which is the regulation that governs payment of Accident Benefits.” The package included excerpts of the Schedule’s provisions as well as an electronic link to the Schedule on the Government of Ontario E-Laws website. The applicant was advised that she had a right to dispute any denials within two years by filing an application with the Tribunal.
iv. On August 24, 2022, the applicant submitted an Election of Non-Earner Benefits (OCF-10).
v. On August 30, 2022, the respondent approved the applicant’s OCF-18 in the amount of $2,460.00 for a pre-discharge home safety assessment.
vi. In subsequent correspondence dated August 30, 2022, the respondent confirmed receipt of an Assessment of Attendant Care Needs (Form 1) dated July 28, 2022 in the amount of $4,527.53/monthly for attendant care. The respondent referenced section 19 of the Schedule and noted that it had yet to receive an application for CAT, therefore her maximum allowance for attendant care was $3,000.00/monthly. It confirmed the applicant’s maximum available limit of $65,000.00 and advised that it had received a number of other medical invoices that could potentially exceed the policy limits.
vii. Also on August 30, 2022, the respondent approved two OCF-18s (dated August 17, 2022), one in the amount of $5,039.89 for chiropractic and massage therapy services and the second in the amount of $2,720.00 for chiropractic services.
viii. On August 31, 2022, the respondent approved two OCF-18s (dated August 15, 2022 and July 25, 2022) in the amount of $9,872.19 and $2,486.00, respectively, for occupational therapy services.
ix. On September 22, 2022, the respondent acknowledged receipt of six additional OCF-21 invoices totalling $16,548.81 CAD. The respondent also advised the applicant that it had learned through her counsel that she carried travel insurance at the time of the accident. It referenced sections 47 and 33 of the Schedule and requested a copy of the applicant’s travel insurance policy.
x. Also on September 22, 2022, the respondent approved an OCF-18 (dated August 31, 2022) in the amount of $2,835.83 for chiropractic services and an OCF-18 (dated September 20, 2022) in the amount of $770.00 for physiotherapy services.
xi. Also on September 22, 2022, in subsequent correspondence, the respondent confirmed their approval for non-earner benefits between July 27, 2022 to September 28, 2022 (9 weeks) for a total of $1,665.00 (payment made on October 6, 2022). It also confirmed that ongoing benefits in the amount of $185.00/weekly would be issued every two weeks.
xii. In an email exchange on October 7, 2022 with applicant’s counsel, the respondent advised that it had decided there was no Ontario coverage for the applicant. The respondent would provide $50,000.00 USD coverage for “ALL benefits” under the New York PIP portion of the policy and there would be no increase considered, even if the applicant is found CAT.
xiii. On December 8, 2022, a cheque in the amount of $523.04 USD is sent to the applicant representing her non-earner benefit from October 13, 2022 to November 9, 2022.
xiv. On December 21, 2022, the respondent provided payment to the applicant’s treatment provider for three additional invoices in the total amount of $398.06 USD.
xv. Also on December 21, 2022, the respondent provided payment to another treatment provider for two additional invoices in the total amount of $1,035.50 USD.
xvi. Additional non-earner benefit payments were made to the applicant as follows:
a. January 13, 2023 in the amount of $261.52 USD for the period December 15, 2022 to December 29, 2022;
b. February 3, 2023 in the amount of $392.28 USD for the period December 30, 2022 to January 19, 2023; and
c. February 23, 2023 in the amount of $261.52 USD for the period February 3, 2023 to February 16, 2023.
In total, the applicant received non-earner benefits in the amount of $11,656.95 USD up to February 16, 2023;
xvii. On February 17, 2023, the respondent advised the applicant that it was in receipt of an invoice for hospital expenses in the amount of $167,766.31 USD. It confirmed a partial payment to the hospital in the amount of $38,343.05 USD which it concluded, exhausted the limit of the applicant’s available benefit limit and requested confirmation as to whether the applicant had applied and been approved for coverage under a travel insurance policy.
xviii. On February 28, 2023, the respondent advised the applicant that the $50,000.00 USD limit had been exhausted and no further payments would be considered.
41In my view, the evidence listed above points to an unequivocal assumption between the parties that the applicant’s claim would be assessed pursuant to the Schedule. It also evidences that the respondent, through its correspondence, expressly assessed the application under the Schedule from the onset by accepting OCF forms, referencing the Schedule, providing the electronic link to the regulation, and confirming that any dispute would be determined by filing an application with the Tribunal.
ii. Detrimental reliance
42In Ryan, the Supreme Court states that this part of the test “requires a finding that the party seeking to establish the estoppel changed his or her course of conduct by acting or abstaining from acting in reliance upon the assumption, thereby altering his or her legal position. If the first step is met, the second requires a finding that, should the other party be allowed to abandon the assumption, detriment will be suffered by the estoppel raiser because of the change from his or her assumed position” (at para. 69).
43On this part of the test, I agree with the applicant that by accepting the OCF-1, OCF-3 and OCF-10, approving various OCF-18s, paying NEBs and explicitly confirming entitlement to the $65,000.00 non-CAT limit, the respondent created an expectation that she was entitled to the full extent of the accident benefits available under the Schedule. Relying on this assumption, including her potential entitlement to CAT policy limits, the applicant incurred additional significant expenses.
44It was only on October 7, 2022, when the applicant’s claim was approaching the $65,000.00 non-CAT limit that the respondent advised applicant’s counsel, through email, that she was not entitled to the benefits provided for under the Schedule but rather, the respondent would provide her coverage of $50,000.00 USD in accordance with the statutory obligations of the state of New York.
45In my view, the applicant has satisfied the element of “detrimental reliance”.
iii. Detriment
46The third element of the Ryan test requires the party seeking estoppel to prove detriment; that it would be unjust or unfair to allow a party to resile from the common assumption (at para. 73).
47Here, the applicant relied on the repeated representations that her claim was being assessed pursuant to the Schedule and incurred expenses over and above the non-CAT limit in the amount of over $26,000.00. These invoices remain outstanding. When the respondent changed its position on October 7, 2022, and advised that the claim would be assessed under the New York PIP policy, the applicant no longer had access to CAT policy limits.
48I agree with the applicant that to allow the respondent to withdraw from its representation that the claim would be administered pursuant to the Schedule, when the applicant had relied on this representation and incurred additional expenses, unjustly and unfairly causes detriment.
Summary – estoppel by convention
49I find that the applicant has satisfied the Ryan test set out by the Supreme Court of Canada. From the initial submission of her application with the respondent, the parties confirmed through their actions and expressly through correspondence, that the statutory provisions of the Act and the Schedule would apply. Relying on this representation, the applicant sought treatment and benefits pursuant to the Schedule. It was only when the total amount of benefits paid approached the non-CAT limit that the respondent changed its position and advised the applicant that her claim would be assessed pursuant to the New York PIP policy, leaving the applicant in a position where she could no longer seek CAT designation and was left with at least $26,0000.00 in outstanding expenses.
50I note that even after the respondent advised the applicant that the claim would be assessed pursuant to the New York PIP policy, it continued to dispense the NEB benefit to the applicant and provided payment of OCF-18s approved treatment plans in accordance with the Schedule.
51I find that the applicant has satisfied the test of estoppel by convention.
The applicant is an “insured person” pursuant to the Schedule
52An “insured person” is defined at section 3(1) of the Schedule.
53The respondent submits that the Tribunal’s jurisdiction requires the existence of an “insured person” as defined by section 268 of the Schedule (although not clear from the submissions, I believe the respondent meant to refer to section 268 of the Act), and a corresponding potential entitlement under the Schedule. Absent these preconditions, the respondent argues that a dispute is not within the Tribunal’s jurisdiction. The Tribunal does not have jurisdiction when the statutory preconditions for the exercise of the authority conveyed by statute are not met.
54The respondent relies on Stegenga v. Economical Mutual Insurance Co., 2019 ONCA 615 and submits that the statutory scheme of the Act and the Schedule presume entitlement for an insured person; it does not empower the Tribunal to decide claims where statutory entitlement is absent. It also relies on Dorman v. Economical Mutual Insurance Co., 2020 ONSC 4004 (“Dorman”) and argues that since the applicant does not quality as an insured person, it is plain and obvious that there is no statutory authority for the Tribunal to adjudicate the subject application that has been initiated by the applicant.
55The Tribunal is a statutory body. It is well settled that a statutory tribunal has no powers other than those it derives from legislation. I agree with the respondent that if the applicant is not an “insured person”, the Tribunal does not have jurisdiction to hear the matter.
56I have found above that the Tribunal has jurisdiction to apply estoppel. I have also found that, based on the evidence, the applicant has persuaded me that estoppel by convention is appropriate in this case.
57An “insured person” at section 3(1)(a)(c) includes “a person who is an occupant of the insured automobile and who is a resident of Ontario or was a resident of Ontario at any time during the 60 days before the accident, if the accident occurs outside Ontario.” While the parties do not dispute that the applicant was a resident of Ontario at the time the accident occurred in New York, I acknowledge that the applicant does not meet the definition in section 3(1)(a)(c). However, through the remedy of estoppel by convention, as set out in detail above, the parties understood that the applicant’s claim was to be assessed pursuant to the Schedule.
58Accordingly, I find that the applicant is an “insured person” under the Schedule and therefore, the Tribunal has jurisdiction to determine whether the applicant is entitled to the claims made herein.
ORDER
59For the reasons stated above, I find:
i. The Tribunal has jurisdiction to consider equitable remedies, including estoppel;
ii. Through the doctrine of estoppel by convention, the applicant is an “insured person” pursuant to the Schedule;
iii. The Tribunal has jurisdiction to determine the application herein; and
iv. The application shall proceed to a hearing on the substantive issues as previously scheduled.
Released: March 26, 2026
Trina Morissette
Vice-Chair