Licence Appeal Tribunal File Number: 24-013099/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:

Aviva Insurance Company of Canada

Applicant

and

B.D.

Respondent

PRELIMINARY ISSUE HEARING DECISION AND ORDER

ADJUDICATOR: Tami Cogan

APPEARANCES:

For the Applicant: James Brown, Counsel

For the Respondent: Kevin Sawyer, Counsel

HEARD: By way of written submissions

OVERVIEW

1B.D., the respondent, was involved in an automobile accident on November 5, 2021, in the province of Quebec, and sought benefits pursuant to section 59(2) of the Statutory Accident Benefits Schedule – Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”).

2A dispute arose as to whether the Schedule, or the Automobile Insurance Act, CQLR c A-25 (the “AIA”) applies to the procedures for adjusting the claim. The insurer, Aviva Insurance Company of Canada applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”) for resolution of the dispute.

PRELIMINARY ISSUE IN DISPUTE

3The preliminary issue to be decided is:

i. Following an election under s. 59(2) of the Schedule to receive benefits in the same amounts and subject to the same conditions as those available in Quebec, is the procedure for adjusting the claim governed by the Automobile Insurance Act of Quebec (“AIA”) and its applicable legislation, or is it governed by the Schedule?

result

4When an election is made pursuant to s. 59(2) of the Schedule, the procedure for adjusting the claim is governed by the Schedule.

PROCEDURAL ISSUES

Motion to Anonymize the Decision

5The respondent filed a motion requesting an order to have the Tribunal’s decision anonymized to protect the privacy of the respondent on the grounds that the decision will contain personal details about her mental health.

6The applicant did not take a position on this request.

7The open court principle applies to administrative tribunals, whose proceedings and adjudicative records are presumptively open to the public. Normally, the Tribunal’s decisions include the full names of the parties to the proceeding. Public access to tribunal proceedings and the adjudicative record is protected by s. 2(b) of the Charter of Rights and Freedoms. Limitations on the open court principle may take the form of anonymization of the decision, a publication ban, sealing all or part of the adjudicative record, or holding a hearing behind closed doors. In the case of Sherman Estate v Donovan, 2021 SCC 25, the Supreme Court of Canada held that a person seeking to limit the open court principle must establish the following:

i. Court openness poses a serious risk to an important public interest;

ii. The order sought is necessary to prevent this serious risk to the identified interest because reasonably alternative measures will not prevent this risk;

iii. As a matter of proportionality, the benefits of the order outweigh its negative effects.

8Further, s. 2(2) of the Tribunal Adjudicative Records Act, 2019 (“TARA”), the Tribunal may order that all or part of an adjudicative record be treated as confidential and not disclosed to the public if the Tribunal determines that:

i. matters involving public security may be disclosed; or

ii. intimate financial or personal matters or other matters contained in the record are of such a nature that the public interest or the interest of a person served by avoiding disclosure outweighs the desirability of adhering to the principle that the record be available to the public.

9Rule 13.1 of the Licence Appeal Tribunal Rules is consistent with TARA and permits the Tribunal to restrict public access to the adjudicative record on the same grounds.

10The Supreme Court recognized privacy as an important public interest. I find that the public disclosure of the applicant’s identity does pose a serious risk to their privacy relating to their medical and mental health conditions.

11The order sought is not for a publication ban or the sealing of the Tribunal’s decision. The order sought is for the order to be anonymized through the use of initials, allowing the decision and its reasons to be public. I find this is the most reasonable measure to protect the applicant’s privacy.

12I find the negative effect of anonymizing the decision is minimal because the decision and the reasons for the decision remain available to the public, thus the public can understand the basis of the decision without intruding upon the health privacy of the applicant. I find that proportionally, the benefit of protecting the applicant’s privacy and professional reputation outweighs the negative effects of the public not knowing the applicant’s identity.

13The Tribunal’s decision will be anonymized by using the applicant’s initials as the only identifier.

ANALYSIS

Law

14Pursuant to s. 59(2) of the Schedule, if an accident occurs outside of the province of Ontario, an insured person may elect to receive either of the following, but not both:

i. The benefits described in the Schedule, other than the benefits referred to in paragraph ii;

ii. Benefits in the same amounts and subject to the same conditions as if the person was a resident of the jurisdiction in which the accident occurred and was entitled to payments under the law of that jurisdiction.

15If an election is made under s. 59(2), the insurer shall pay benefits in accordance with the election.

Background and parties’ positions

16I find that when an election is made pursuant to s. 59(2), the substantive law of the AIA is adopted, however, the procedural law of the Schedule governs the adjustment of the claim. My reasons will follow.

17The parties agree that the respondent is entitled to the benefits as they exist within the Quebec legislative framework.

18The applicant submits that the procedures for adjusting the claim should be in accordance with the Schedule, and not the AIA. Therefore, the applicant is required to attend the Examination Under Oath (“EUO”), as requested.

19The respondent submits that the substantive and procedural law of Quebec applies to the adjustment of the claim, and because there is no mechanism in the AIA for an EUO, the respondent does not have to attend the EUO, or Insurer’s Examinations.

20It is the wording of s. 59(2)2 of the Schedule that leads to the dispute of interpretation between the parties. Section 59 specifies that an insured elects to receive “benefits in the same amounts and subject to the same conditions” as the other jurisdiction, that being Quebec.

21The applicant interprets the “conditions” to be with regard to the substantive benefits. While the respondent interprets the “conditions” to be procedural.

22The parties each relied on J.W. v. Wawanesa Insurance, 2019 ONLAT 18-003407/AABS (“J.W.”). The parties disagree on what determination V.C. Flude made as to whether the Schedule allows for both substantive and procedural to be under the AIA. At paragraph 12 he states “Once J.W. made her election, she was thereafter to be treated as if she resides in Quebec. Thus, whether procedurally or substantively, it is the law of Quebec that applies, just as it applies to Quebec residents, and governs her claim for benefits. [Emphasis Added]

23I find that in J.W., the dispute was in regard to the quantum of a benefit, which V.C. Flude determined was subject to the AIA. V.C. Flude was not making a determination in regard to the procedural application because it was not in dispute between the parties.

24The respondent also relies on Tolofson v. Jensen; Lucas (Litigation Guardian of) v. Gagnon, 1994 CanLII 44 (SCC), [1994] 3 S.C.R. 1022 (“Tolofson”) to support that s. 59 is an interjurisdictional mechanism to extend jurisdiction to the Tribunal. However, I disagree with the respondent, that the court determined that both the substantive and the procedural law should be applied in accordance with the Quebec law, when an election is made under s. 59(2).

25In Tolofson, the Supreme Court of Canada (“SCC”) addressed the application of the lex loci principle and whether it applies to substantive or procedural law. The lex loci principle, simply put, determines which law applies when there is a conflict based on location or jurisdiction. For the case at hand, it means that the law of the place where the accident happened, that being Quebec.

26In making their decision, the SCC considered Cheshire and North's Private International Law (12th ed. 1992), at pp. 74-75, which states:

One of the eternal truths of every system of private international law is that a distinction must be made between substance and procedure, between right and remedy. The substantive rights of the parties to an action may be governed by a foreign law, but all matters appertaining to procedure are governed exclusively by the law of the forum.

27Further, La Forest J. stated: “The reason for the distinction is that the forum court cannot be expected to apply every procedural rule of the foreign state whose law it wishes to apply. The forum's procedural rules exist for the convenience of the court, and forum judges understand them. They aid the forum court to “administer [its] machinery as distinguished from its product” (Poyser v. Minors (1881), 7 Q.B.D. 329, at p. 333 per Lush L.J.).

28In following the SCC, I find that the substantive law is adopted from the place where the accident happened, but the procedural law remains subject to the place where the litigation is being undertaken.

29La Forest J. also considered what he referred to as a pragmatic approach to determining if legislation is substantive or procedural, applied by the British Columbia Court of Appeal in the case of Block Bros. Realty Ltd. v. Mallard (1981), 1981 CanLII 504 (BC CA), 122 D.L.R. (3d) 323 (B.C.C.A.), who stated “ … legislation should be categorized as procedural only if the question is beyond any doubt. If there is any doubt, the doubt should be resolved by holding that the legislation is substantive.”

30In accepting this approach, I find the answer to the question of whether the “conditions” referred to in s. 59(2) are substantive or procedural, is that the conditions are substantive, and refers to the accident benefits, not the process by which the claim is adjusted.

31I find that this is consistent with the consumer protection spirit of the Schedule, because the s. 59(2) election allows the applicant to receive her preference of the accident benefits pursuant to the AIA, while providing the parties with the familiar framework in which to address disputes that may arise.

CONCLUSION AND ORDER

32For the reasons above, I find:

i. When an election is made pursuant to s. 59(2) of the Schedule, the procedural law governing the adjustment of a claim, is the Schedule, while the available accident benefits, are governed by the substantive law of the location in which the accident occurred.