Barnes v. Motor Vehicle Accident Claims Fund, 2019 ONSC 1782
CITATION: Barnes v. Motor Vehicle Accident Claims Fund, 2019 ONSC 1782
DIVISIONAL COURT FILE NO.: 17-234
DATE: 20190320
ONTARIO SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
RE: ANNE LOUISE BARNES, Applicant
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MOTOR VEHICLE ACCIDENT CLAIMS FUND and FINANCIAL SERVICES COMMISSION OF ONTARIO, Respondents
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ONTARIO TRIAL LAWYERS ASSOCIATION, Intervenor
BEFORE: MULLINS, MYERS, and FAVREAU JJ.
COUNSEL: Stanley Razenberg and Ashley Frydrych, for Wendy H. Sokoloff, for the applicant Robert Kerkmann, for Her Majesty the Queen in Right of Ontario on behalf of the respondent Motor Vehicle Accident Claims Fund Darryl Singer and Alexander Voudouris, for the intervenor
HEARD at Toronto: February 27, 2018
ENDORSEMENT
F.L. Myers J:
BACKGROUND
[1] The applicant seeks judicial review of the decision of Director’s Delegate Rogers dated April 6, 2017. The Director’s Delegate decided that the amendment to s. 19 of the Statutory Accident Benefits Schedule – Accidents on or after November 1, 1995, O Reg 406/96 that came into force on February 1, 2014 applies to limit claims for attendant care benefits made by the applicant after the amendment was enacted. The Director’s Delegate overruled the decision of Arbitrator Sone dated November 22, 2016. The Arbitrator had determined that the applicant’s claims for attendant care services provided to her after February 1, 2014 remained subject to the pre-existing SABS that was in force when she sustained her injury.
FACTS
[2] The applicant was seriously injured in a snowmobile accident on January 3, 2012. Her mother, Louise McColeman left her job in order to provide care for her adult daughter. The applicant began receiving attendant care benefits for care provided to her by her mother in May, 2012.
[3] Prior to the 2014 amendment, the amount paid for non-professional attendant care under the SABS then in force was based upon the amount of care provided. The quantum was not linked to the amount of any wage or salary loss suffered by the non-professional caregiver: Henry v Gore Mutual Insurance Company, 2013 ONCA 480. The Arbitrator and the Director’s Delegate both noted that the applicant refused to disclose the income that her mother earned prior to leaving her job as she asserted that it was not relevant to the case.
[4] The Minister enacted O Reg 347/13 effective February 1, 2014. Among other things, it amended the formula for calculating the amount of attendant care benefits payable for care provided by non-professional caregivers. In particular, under the new regulation, the benefits payable for care provided by non-professional caregivers cannot exceed the foregone salary or other economic loss incurred by the caregiver. The regulation prevents people from making more money as non-professional caregivers than they would have made at the job that they gave up in order to provide care.
JURISDICTION OF THE COURT
[5] The Court has jurisdiction to hear this application pursuant to s. 2 and s. 6(1) of the Judicial Review Procedure Act, R.S.O. 1990 c. J.1.
THE APPLICANT’S ARGUMENTS – THE BENEFITS WERE VESTED RIGHTS
[6] Ignoring the standard of review for the moment, the substantive issue at play is whether the applicant’s claims for attendant care benefits for care provided by her mother after February 1, 2014 would continue to be paid under the pre-existing law or would be capped by the new regulation at the amount of income lost by her mother by leaving her job. Much of the focus of the argument turned on whether the applicant had a “vested right” in the benefits calculated under the old SABS at the time that it changed.
[7] The applicant’s counsel argued that the applicant suffered a very serious injury. She was recognized as catastrophically impaired by the respondent fund. Her mother left a job in order to care for her. Under the old SABS, in view of the amount of care provided by her mother, the applicant was reimbursed at the maximum available amount of approximately $6,000 per month. This continued for 24 or 25 months. The applicant has grown accustomed to having her mother care for her. Moreover, attendant care can involve highly personal tasks involving a person’s most private moments. The applicant wants her mother to continue providing her attendant care.
[8] Relying on these facts, the applicant argued that her entitlement to benefits at $6,000 per month for her mother had become a vested right prior to the new regulation coming into force.
IS THERE INJUSTICE? THE NEED TO BALANCE PREJUDICE AGAINST BENEFIT
[9] Counsel referred to a chapter from Sullivan on the Construction of Statutes, 6th ed (Markham: LexisNexis Canada Inc., 2014) that instructs that the common law presumes that the legislature does not intend new laws to interfere with vested rights. This presumption is based on “how unfair or arbitrary it would be to abolish or curtail the right”. The author explains at §25.138 that the presumption against interfering with vested rights exists because:
To deprive individuals of interests or expectations that have economic value is akin to expropriation without compensation, which has never been favoured by the common law.
[10] At §25.142 Prof. Sullivan cites the Supreme Court of Canada in Outremont (City) v Outremont (City) Protestant School Board, [1951] Que KB 676 at 692, affd 1952 57 (SCC), [1952] 2 SCR 506 as follows:
A vested or accrued right is a claim or interest that cannot be defeated without causing grave injustice; it is something that should be protected because to take it away would be arbitrary or unfair.
[11] Counsel also cited Coté, The Interpretation of Legislation in Canada, 4th ed, (Toronto: Carswell, 2011) at p. 182 for the following proposition:
By presuming that the legislature wishes to be “just and reasonable”, the judge tries to discover the least burdensome solution under the circumstances, that which operates the best compromise between individual interests, which are served by survival of the former statute, and societal interests, which warrant immediate application.
[12] The question below and before us for review then turned on understanding and balancing the nature of:
a. the interests of the insured applicant and her mother in the state of affairs that existed under the old law (that the mother left her job and the applicant was being paid $6,000 per month for her mother’s attendant care);
b. the purpose of the regulatory amendment (to cap indemnity payments at the amount of income forgone by non-professional caregivers); and
c. the nature of the unfairness of subjecting the applicant to a deprivation akin to expropriation without compensation or to the grave injustice of retroactivity in the circumstances.
[13] The intervenor submitted that the amendment had no public policy purpose other than to provide a windfall to insurers by allowing them to escape payment of fair value for services rendered. Counsel asked us to take judicial notice of the fact that when a family is struck by catastrophic injury to a loved one, they are forced to make decisions about how to structure their affairs. The economics will be a fundamental consideration. Capping the amount of money that an injured party can receive for care provided by a family member after she or he has left employment to be a caregiver unfairly ignores the family’s detrimental reliance on the available benefits. Counsel for the intervenor could not point to any evidence that this was what actually happened in this case. That is why he invoked the doctrine of judicial notice.
[14] Counsel for the intervenor also argued that the new law interfered unfairly with the vested right of the injured party to choose the identity of her caregiver by limiting the benefit available to reimburse the injured party for the care provided by a family member. There was no evidence that the applicant’s freedom to choose a caregiver was affected in this case.
SURPRISE #1
[15] In responding submissions, counsel for the respondent fund advised that the applicant had recently disclosed that her mother’s former employment income exceeded $6,000 per month. The respondent fund has recognized that the applicant is therefore entitled to continue to receive the maximum benefit per month for her mother’s attendant care under the new law as she had before.
[16] The court was surprised. This disclosure raised a question as to whether the legal issue being argued arose on the facts of the case. The applicant has not lost any entitlement to benefits under the new regulation. She will continue to be paid the maximum benefit despite the cap that might limit other peoples’ benefits. The applicant suffers no deprivation of economic value. She suffered no detrimental reliance. There is no expropriation of value. There is no interference with the applicant’s choice of caregiver. The applicant’s individual interests are not affected by the enforcement of any societal interest in the new regulation. It works no injustice upon her.
SURPRISE #2
[17] While telling us about the applicant’s recent income disclosure, counsel for the respondent fund also mentioned that there is a separate legal proceeding in which his client and the snowmobile insurer are in a dispute over which of them ought to be required to fund the applicant’s benefits under the SABS. Counsel told us that the respondent fund and the snowmobile insurer had been through an arbitration and then an appeal to the Superior Court. A further appeal is now pending before the Court of Appeal.
[18] After some inquires and a quick search of on my smartphone, the court found the decision of Lederer J. dated August 8, 2018, in Ontario (Minister of Finance) v. Echelon General Insurance Company, 2018 ONSC 4550. Justice Lederer held that the snowmobile’s insurer Echelon is the party liable to pay the applicant’s benefits under the SABS. Although the respondent fund was represented before us, it has no liability to the applicant under the SABS.
[19] Echelon has appealed Justice Lederer’s decision to the Court of Appeal. There is no stay in place. But the parties to that appeal have apparently agreed to defer the transition of the applicant’s benefits from the respondent fund to Echelon pending the outcome of the appeal.
[20] The court inquired of the applicant’s counsel as to whether the respondent’s concession that it was recognizing the applicant’s entitlement to receive the same maximum benefits under the amended SABS as under the old SABS rendered the appeal moot. Counsel submitted that the appeal is not moot because Echelon, who is actually responsible to pay the applicant’s benefits under the SABS, may not accept the respondent’s concession.
[21] Counsel for the applicant says that it is possible that Echelon might take a position that the applicant’s mother made less than the maximum $6,000 because her net income after source deductions and tax is just less than $6,000. The applicant also fears that Echelon might argue that the mother is not giving up any income because she would have left her job to care for her daughter out of maternal love in any event.
[22] The issue of the mother’s gross versus her net income was not ruled on by the Arbitrator or the Director’s Delegate below because the applicant refused to disclose her mother’s income. She prevented the issue on which she now relies from being heard and resolved. The question of whether Echelon might take a position about the applicant’s entitlement could have been fleshed out if it had been added as a party - especially given that there is a declaration of the Superior Court that provides that it is the party with the legal interest in the issue.
MOOTNESS
[23] In Borowski v. Canada (Attorney General), [1989] 1 SCR 342, 1989 123 (SCC), the Supreme Court of Canada discussed the doctrine of mootness as follows:
The doctrine of mootness is an aspect of a general policy or practice that a court may decline to decide a case which raises merely a hypothetical or abstract question. The general principle applies when the decision of the court will not have the effect of resolving some controversy which affects or may affect the rights of the parties. If the decision of the court will have no practical effect on such rights, the court will decline to decide the case.
The first rationale for the [doctrine of mootness] is that a court's competence to resolve legal disputes is rooted in the adversary system. The requirement of an adversarial context is a fundamental tenet of our legal system and helps guarantee that issues are well and fully argued by parties who have a stake in the outcome.
[24] The issues in this case are moot. The outcome of the issue argued by the parties does not affect them. Apart from the waste of parties’ and judicial time and resources, the case is not fit for decision-making. The intervenor argues that the amended regulation interferes with the way people arrange their affairs and affects their choice of personal caregiver. They argue that there are grave injustices being committed. These are important issues. But resolution of the issues turn on facts. Deciding if the retrospective application of the new regulation works a grave injustice, or is arbitrary, or if it affects someone so unfairly so as to outweigh its beneficent purpose, are factual inquiries. The necessary facts do not arise in this case. As noted above, there is no injustice in this case as the amendment does not impact the applicant even if it applies to her retrospectively.
[25] Moreover, this is not a case where the likelihood of repetition of the issue is remote or where there is an important collateral purpose to justify trying to resolve the issue even though it is moot. The case is all about injustice. The balancing to be performed and the equities engaged are shaped by the experiences of real people who are able to show tangibly the unjust effects on which they rely. The only injustice before the court is to others who may actually suffer real prejudice if the new regulation retrospectively applies to them and who find themselves unable to seek relief because the applicant and the intervenor brought a case with an insufficient factual foundation to succeed.
OUTCOME
[26] The application is dismissed as moot. Counsel for the main protagonists agreed that costs of $7,500 should follow the event.
[27] I am not inclined to exercise the discretion to award costs in light of the unsatisfactory manner that this application was both brought and to which it was responded. Neither the applicant nor the respondent fund moved to admit fresh evidence as to the applicant’s late disclosure of her mother’s income or of the proceedings before Lederer J. Neither of them moved to add Echelon as a party. Neither raised the doctrine of mootness. Moreover, the respondent responded to a case in which it has no interest. And I do not know why the applicant refused to disclose her mother’s income to the tribunals below or why she brought this application given that, on the facts as finally disclosed, it is apparent that she does not suffer harm from the law whose application she is challenging.
[28] I note that we have little information about how much knowledge about these issues each of the individual counsel who appeared before us had. But there should not have been any surprises revealed in court - let alone two. No one is entitled to indemnity for the legal costs they incurred in the circumstances.
Myers J.
I agree
Mullins J.
I agree
Favreau J.
March 20, 2019