Kelly v. The Commonwell Mutual Insurance Group, 2026 CanLII 37022

Licence Appeal Tribunal

Citation: Kelly v. The Commonwell Mutual Insurance Group, 2026 ONLAT 25-015590/AABS Licence Appeal Tribunal File Number: 25-015590/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:

Erin Kelly Applicant

and

The Commonwell Mutual Insurance Group Respondent

DECISION

ADJUDICATOR: Ulana Pahuta

APPEARANCES:

For the Applicant: Imtiaz Hosein, Counsel Christos Kakaletris, Counsel

For the Respondent: Colin MacDonald, Counsel

HEARD: By way of written submissions

OVERVIEW

1Erin Kelly, the applicant, was involved in an automobile accident on April 14, 2025 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, The Commonwell Mutual Insurance Group, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

ISSUES in dispute

2The issue brought forward by the applicant to be decided in this hearing is:

1. Whether the respondent’s counsel is in a conflict of interest because she conducted a s. 33 Examination Under Oath (“EUO”) with respect to a priority dispute and has now requested to conduct a second EUO for the purposes of entitlement to accident benefits.

3The issues brought forward by the respondent to be decided in this hearing are:

1. Does the Tribunal have jurisdiction under s. 280 of the Insurance Act, RSO 1990 in this matter as the application does not concern entitlement to any specific accident benefits?
2. Whether the applicant is barred from proceeding with the Tribunal application, pursuant to s. 55 of the Schedule, because the applicant failed to attend an insurer’s examination under s. 44 of the Schedule.

4At the case conference, the applicant confirmed that the additional issues listed in the application and in the December 16, 2026 Notice of Motion were withdrawn, and she was only proceeding with the issue listed in paragraph [2]1 above.

RESULT

5I find that:

i. The Tribunal does not have the jurisdiction to determine whether counsel is in a conflict of interest as a standalone issue, without any underlying and connected dispute pertaining to a claim for accident benefits. As a result, I have not considered whether the respondent’s counsel is in a conflict of interest because she conducted an EUO with respect to a priority dispute and has now requested to conduct an EUO for the purposes of entitlement to accident benefits.

ii. Given that this was the only issue in dispute brought forward by the applicant, the application is dismissed due to lack of jurisdiction.

iii. Since the application is dismissed for lack of jurisdiction, it is not necessary to consider the respondent’s second issue of whether the applicant should be barred with proceeding with her application due to her failure to attend s. 44 insurer’s examinations.

iv. The Tribunal’s file is closed.

ANALYSIS

Parties’ positions

6The parties agree that the only issue brought forward by the applicant in her application, is whether respondent’s counsel is in a conflict of interest because counsel previously conducted a s. 33 EUO with respect to a priority dispute and has now requested to conduct a second EUO for the purposes of entitlement to accident benefits. No substantive medical or rehabilitation benefits are in dispute in the present application.

7Rather, the applicant submits that, through her application, she seeks the Tribunal’s direction on whether the respondent’s counsel is in a conflict of interest, so that she can make an informed decision on whether to proceed with the EUO. The applicant relies on the Tribunal decision 17-004636 v. The Personal Insurance Company, 2018 CanLII 132225 (ON LAT) and the Divisional Court decision The Personal Insurance Company v Jia, 2020 ONSC 6361 to argue that it is inappropriate for an insurer to retain the same lawyer for any proceeding after conducting a priority EUO. She requests that the Tribunal issue an Order that respondent’s counsel cannot represent the respondent for a s. 33 EUO because she is in a conflict of interest situation.

8Although the applicant acknowledges that there is no specific benefit in dispute in her application, she argues that the Tribunal has jurisdiction to consider issues other than just substantive benefits. She cites Tribunal cases Applicant v TD Insurance, 2018 CanLII 76697 (ON LAT) and Aviva Insurance Canada v 17-004258, 2018 CanLII 39368 (ON LAT) in support of her position. The applicant argues that the Tribunal must necessarily have the jurisdiction to provide direction to the parties and to address issues of law, and relies on s. 3.2 of the Licence Appeal Tribunal Act, 1999, S.O. 1999, c. 12, Sched G to argue that the Tribunal has “all the powers that are necessary or expedient for carrying out its duties”.

9Finally, the applicant argues that the respondent’s counsel agreed to cooperate with this request for direction from the Tribunal. In an email dated November 19, 2025, respondent’s counsel stated that, “Should your client wish to seek direction from the LAT on this issue, we will cooperate fully.” She argues that the respondent cannot now argue that the application is an attempt to “manufacture” jurisdiction.

10The respondent argues that since the applicant has not disputed any entitlement to accident benefits in her application, the Tribunal lacks the jurisdiction to consider the sole issue of whether counsel for the respondent is in a conflict of interest. It submits that as stated in s. 280(1) of the Insurance Act, the Tribunal’s jurisdiction is limited to the “resolution of disputes in respect of an insured person’s entitlement to statutory accident benefits or in respect of the amount of statutory accident benefits to which an insured person is entitled.” It cites Tribunal decision Rogh v. Aviva Insurance Canada, 2023 CanLII 40141 (ON LAT) to argue that in situations where the issue in dispute was the applicability of the Minor Injury Guideline (“MIG”), the Tribunal has determined that it does not have the jurisdiction to determine this standalone issue.

11The respondent submits that it does not dispute that the Tribunal has the jurisdiction to consider the issue of conflict of interest when it is raised in the context of a dispute regarding entitlement to benefits, as was considered in the Tribunal decision Mansuri v. Dominion of Canada Insurance Company, 2022 CanLII 138547 (ON LAT). Rather, it argues that the lack of jurisdiction in this case stems from the applicant’s decision not to dispute any specific accident benefits, or the amount of benefits she is entitled to.

Does the Tribunal have the jurisdiction to determine whether counsel is in a conflict of interest as a standalone issue

12I find that the Tribunal does not have the jurisdiction to determine whether counsel is in a conflict of interest situation as a standalone issue in dispute.

13I agree with the respondent that s. 280(1) of the Insurance Act is clear that the Tribunal’s jurisdiction is limited to disputes relating to entitlement or the amount of accident benefits. I further agree with the reasoning in the decision cited by the respondent, Rogh v. Aviva, where the Tribunal considered whether it had the jurisdiction to consider the applicability of the MIG as a standalone issue. The Tribunal found that the Schedule does not entitle an insured person to apply for a MIG determination on its own, therefore, the MIG was found not to be an entitlement. The Tribunal held that in order for it to have jurisdiction, the application must have been accompanied by a related dispute for an entitlement to statutory accident benefits that required a MIG determination.

14I note the applicant’s submissions that in Tribunal decisions Applicant v TD Insurance and Aviva Insurance Canada v 17-004258, the Tribunal considered catastrophic (“CAT”) determination as a standalone issue. However, in my view, a standalone CAT determination is distinguishable from the present fact pattern. In the decisions cited by the applicant, the Tribunal held that CAT determination could proceed as a standalone issue, as a decision on whether a claimant was CAT impaired directly impacts her entitlement to benefits and arises as an issue from a denial by the insurer. The Tribunal further stated that:

CAT determination directly affects entitlement to benefits, it includes requirements and a process very similar to that for specific SABs, and a claim of CAT impairment can be denied like any benefit. I find these facts persuasive that the result of the CAT determination process is included in the entitlement disputes that can be appealed to the Tribunal.

15This is supported by a plain reading of the Schedule, where s. 45 establishes that an insured person can apply for a CAT determination as a standalone matter and also provides a set list of rules governing how such applications are made.

16In contrast, in the present matter, no such connection to the entitlement to accident benefits has been made. The applicant does not dispute that her application does not relate to any denial of benefits. Rather, the sole issue in dispute relates to a procedural request to disqualify counsel. I agree with the applicant that the Tribunal generally has the jurisdiction to consider the issue of conflict of interest, as it is a procedural fairness issue and the Tribunal has the jurisdiction to provide direction to the parties and to address issues of law. However, I further agree with the respondent that the Tribunal would only have the jurisdiction to address this issue when it is raised in the context of a dispute relating to entitlement or the amount of accident benefits.

17The applicant has not provided any authority or cited caselaw where such a procedural issue has been addressed as a standalone issue, without an existing application relating to the entitlement to benefits. Indeed, in the caselaw cited by the applicant on the issue of a counsel’s conflict of interest, all of the decisions considered the conflict of interest issue as part of a decision, or a motion, relating to an underlying application for substantive accident benefits. While I note the applicant’s submissions that respondent’s counsel had stated that it would cooperate with a request for direction from the Tribunal, the determination of whether the Tribunal has jurisdiction in a matter does not depend on the cooperation or consent of counsel.

18Accordingly, I find that the Tribunal does not have the jurisdiction to determine whether the respondent’s counsel is in a conflict of interest because she previously conducted a an EUO with respect to a priority dispute as a standalone issue. Given that this was the only issue in dispute brought forward by the applicant, the application is dismissed due to lack of jurisdiction.

ORDER

19I find that:

i. The Tribunal does not have the jurisdiction to determine whether counsel is in a conflict of interest as a standalone issue, without any underlying and connected dispute pertaining to a claim for accident benefits.

ii. Given that this was the only issue in dispute brought forward by the applicant, the application is dismissed due to lack of jurisdiction.

iii. Since the application is dismissed for lack of jurisdiction, it is not necessary to consider the respondent’s second issue of whether the applicant should be barred with proceeding with her application due to her failure to attend s. 44 insurer’s examinations.

iv. The Tribunal’s file is closed.