Campisi v. Her Majesty in Right of Ontario as Represented by the Attorney General of Ontario et al.
[Indexed as: Campisi v. Ontario (Attorney General)]
Ontario Reports Court of Appeal for Ontario Rouleau, Watt and D. M. Brown JJ.A. October 30, 2018
144 O.R. (3d) 638 | 2018 ONCA 869
Case Summary
Charter of Rights and Freedoms — Standing — Applicant applying for declaration that certain provisions of Insurance Act relating to automobile accident claims violate ss. 7 and 15 of Charter — Application judge not erring in finding that fact that applicant was lawyer who represented clients affected by impugned provisions did not give him private or public interest standing to bring application — Canadian Charter of Rights and Freedoms, ss. 7, 15 — Insurance Act, R.S.O. 1990, c. I.8.
The applicant, a lawyer, brought an application for a declaration that s. 267.5(1) of the Insurance Act, which places limits on the recovery of pre-trial income loss in automobile accident claims, and s. 280 of the Act, which confers jurisdiction over statutory accident benefits disputes to an administrative tribunal, violate ss. 7 and 15 of the Canadian Charter of Rights and Freedoms and that s. 280 contravenes s. 96 of the Constitution Act, 1867. The application was dismissed on the ground that the applicant lacked standing. The applicant appealed.
Held, the appeal should be dismissed.
The application judge did not err in finding that the fact that the applicant represented clients affected by the impugned provisions did not give him private or public interest standing to bring the application. The applicant's scholarly contributions regarding the Act did not exemplify a genuine interest in the outcome of the application, and the applicant had not established that the application was a reasonable and effective way of bringing the issues before the courts.
Cases Referred To
Statutes Referred To
Canadian Charter of Rights and Freedoms, ss. 7, 15
Insurance Act, R.S.O. 1990, c. I.8, ss. 267.5(1), 280
Counsel
Rocco Galati and Peter Murray, for appellant.
Daniel Guttman and Padraic Ryan, for Attorney General of Ontario.
Jeff Galway, for Insurance Bureau of Canada.
Decision
[1] BY THE COURT: -- The appellant appeals from the dismissal of his application for a declaration that two provisions of the Insurance Act, R.S.O. 1990, c. I.8, relating to automobile accident claims -- ss. 267.5(1) and 280 -- violate ss. 7 and 15 of the Canadian Charter of Rights and Freedoms and that s. 280 contravenes s. 96 of the Constitution Act, 1867. Section 267.5(1) places limits on the recovery of pre-trial income loss and s. 280 confers jurisdiction over statutory accident benefits disputes to an administrative tribunal.
[2] The application judge found that the appellant, a lawyer, lacked private and public interest standing to bring the application. The fact that his practice involved representing clients who were affected by these provisions did not give him standing to mount a challenge to the sections. The appellant maintains that the application judge erred in denying both private and public interest standing.
[3] We disagree.
[4] In our view, the application judge correctly determined that private interest standing is not made out. The appellant failed to demonstrate that the impugned provisions affect him personally and directly. The appellant's experience litigating insurance claims and his concern for properly advising his clients and for adequately settling their claims falls short of establishing that the provisions had a direct impact on him. As the application judge noted, the appellant has not been injured in an automobile accident, is not claiming for lost income and is not disputing a statutory benefit entitlement before the administrative tribunal.
[5] Turning to the issue of public interest standing, the appellant argues, in effect, that the application judge considered each of the three factors in Canada (Attorney General) v. Downtown Eastside Sex Workers United Against Violence Society, [2012] 2 S.C.R. 524, [2012] S.C.J. No. 45, 2012 SCC 45, separately, requiring that each of the three be satisfied. In his submission, the application judge ignored the flexibility in the application of the test that the Supreme Court of Canada prescribes. We would not give effect to this submission.
[6] Although the application judge's reasons could be read as suggesting that his analysis of each of the three factors was carried out separately and that he may have viewed them as prerequisites, in our view, this suggestion is not made out. The application judge correctly listed the three factors, namely whether the case raises a serious justiciable issue; whether the applicant has a real stake or a genuine interest in its outcome; and whether, in all the circumstances, the proposed application is a reasonable and effective way to bring the issue before the courts.
[7] Reading the reasons as a whole, it is apparent that the application judge considered the three factors in combination and with the flexibility required. We reject, therefore, the suggestion that he acted on the wrong principles or erred in law.
[8] Further, we do not consider that the appellant's scholarly contributions regarding the Insurance Act exemplify a genuine interest in the outcome of the application. Moreover, the appellant, who has not filed an affidavit in his own name, has failed to establish that the application is a reasonable and effective way of bringing the case to court. Although his two affidavit witnesses may be unable to bring an action themselves, the appellant has not provided a compelling reason why an auto accident victim who is directly impacted by the impugned provisions could not challenge the legislation.
[9] The application judge's discretionary decision is, in our view, entitled to deference and we see no reason to interfere.
[10] The appeal is therefore dismissed. Costs are awarded to the Attorney General in the amount of $10,000, inclusive of HST and disbursements. No costs are awarded to the Insurance Bureau of Canada.
Appeal dismissed.
End of Document
