Lucas-Logan v. Certas Direct Insurance Company, 2020 ONSC 7313
CITATION: Lucas-Logan v. Certas Direct Insurance Company, 2020 ONSC 7313
DIVISIONAL COURT FILE NO.: 32/19
DATE: 20201127
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
BACKHOUSE, NEWTON, KRISTJANSON JJ.
BETWEEN:
EUNICE LUCAS-LOGAN
Appellant
– and –
CERTAS DIRECT INSURANCE COMPANY
Respondent
Eunice Lucas-Logan, Appellant
Kevin H. Griffiths, Counsel for Respondent
HEARD by Video Conference November 25, 2020
REASONS FOR JUDGMENT
NEWTON J.
OVERVIEW
[1] The Notice of Appeal, delivered July 8, 2019, specifies that this is an appeal from the order of the Licence Appeal Tribunal dated June 19, 2019.
[2] Section 11(6) of the Licence Appeal Tribunal Act provides that appeals from the Tribunal relating to a matter under the Insurance Act may be made to the Divisional Court, but only on a question of law.
[3] Applying Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, the standard of review to be applied on this appeal, provided there is a question of law, is correctness.
[4] At the commencement of the appeal Ms. Lucas-Logan advised the panel that she was not seeking to appeal the decision on the Licence Appeal Tribunal but seeking to have certain claims made under the Statutory Accident Benefit Schedule (“SABS”) included in an already existing statement of claim between the parties.
[5] For the reasons that follow, the appeal is dismissed.
PRELIMINARY ISSUE
[6] Ms. Lucas-Logan advised this panel that the respondent had not used Dropbox as specified for the electronic sharing and filing of documents and that, therefore, the respondent should be precluded from making submissions.
[7] However, it was determined that Ms. Lucas Logan had received “hard copies” of the respondent’s material. As no prejudice was demonstrated, the panel allowed the respondent to make submissions.
THE FACTS
[8] Some background facts are necessary to understand Ms. Lucas-Logan’s reasons for bringing this appeal and why it must be dismissed.
[9] Ms. Lucas-Logan was involved in a motor vehicle accident on March 16, 2013. She sought accident benefits from her insurer, Certas, and disputed some of Certas’ denials of benefits through 2014 to 2018.
[10] The procedure to be followed for the resolution of disputes under the SABS changed on April 1, 2016. Before April 1, 2016 disputes were to proceed to mediation first at the Financial Services Commission (“FSCO”) and, failing resolution, litigation in the courts or arbitration under the Insurance Act before FSCO. Mediation was mandatory and a precondition to litigation or arbitration.
[11] With respect to claims commenced, but not resolved, before April 1, 2016, the mediation, court proceeding, or arbitration could proceed but, if mediation failed, a court proceeding or arbitration could not be brought but the dispute could be submitted for determination by the insured or the insurer to the Licence Appeal Tribunal (see Insurance Act, R.R.O. 1990, Reg. 664).
[12] All disputes brought after April 1, 2016 must proceed, without mediation, to the Licence Appeal Tribunal and no court proceedings, other than an appeal or an application for judicial review, may be brought. (see section 280 of the Insurance Act.)
[13] Ms. Lucas-Logan applied to FSCO for mediation of a dental treatment claim. The mediation was never held.
[14] In February 2015, Ms. Lucas-Logan commenced an action against Certas in the Superior Court of Justice seeking payment of the dental treatment claim and seeking other damages. Certas defended the claim on the basis that Ms. Lucas-Logan could not litigate claims that were not the subject of a failed FSCO mediation.
[15] In October 2015, Ms. Lucas-Logan applied to FSCO again to mediate additional claims Following mediation in March 2016, the mediator reported a failed mediation for 30 claims for accident benefits.
[16] On March 30, 2016, Ms. Lucas-Logan, through her then counsel, commenced an arbitration at FSCO for the 30 failed claims. On September 9, 2016, Ms. Lucas-Logan withdrew her application for arbitration. Prior to that, Ms. Lucas-Logan had discharged her counsel. As requested, FSCO closed its file.
[17] Subsequently, Ms. Lucas-Logan moved before Thomas J. for leave to amend her statement of claim to include the 30 claims for which arbitration was withdrawn and other “fresh” claims.
[18] For reasons dated February 2, 2017 and reported at Lucas-Logan v. Certas, 2017 ONSC 828, Thomas J. stated that Ms. Lucas-Logan could continue her claim for dental treatment costs in the Superior Court since it had not been mediated but could not commence a court action or add to an existing action those claims that were subject to a failed mediation in March 2016. As Thomas. J. noted at para. 19, to allow Ms. Lucas-Logan to do so would “effectively circumvent the effect of the amendment and the law as it existed after April 1, 2016.” Thomas J. concluded that, upon withdrawal of the request to arbitrate, Ms. Lucas-Logan’s only option to continue the dispute was to apply to the Licence Appeal Tribunal.
[19] On January 10, 2018, Ms. Lucas-Logan submitted an application to the Licence Appeal Tribunal for 78 benefits in dispute. At a case conference preliminary issues were raised by Ms. Lucas-Logan and Certas which proceeded to a written hearing and written reasons were released on June 19, 2019 by Adjudicator Lake, E.L. v. Certas Direct Insurance Company, unreported File Number:18-000247?AABS.
THIS APPEAL
[20] As noted, at the commencement of the hearing of this appeal, Ms. Lucas-Logan announced that that she was not seeking to appeal the decision of the Licence Appeal Tribunal but seeking to have her already existing but unresolved claims for accident benefits added to her existing action.
[21] In her factum, Ms. Lucas-Logan submitted that this appeal is “from a decision made in Superior Court of Justice and the Licence Appeal Tribunal” and asks that she be allowed to “particularize the statement of claim issued February 3, 2015.”
[22] Certas argues that the Notice of Appeal filed by Ms. Lucas-Logan on July 8, 2019 appeals the June 2019 decision of the Licence Appeal Tribunal only and that, in any event, the decision of Thomas J. had to be appealed within 30 days.
[23] We agree. That decision has not been appealed and the time for bringing that appeal has expired.
[24] As Ms. Lucas-Logan announced that she is not seeking to appeal the decision of the Licence Appeal Tribunal this appeal is dismissed.
[25] We note that the procedures for resolving disputes for claims for accident benefits changed significantly after Ms. Lucas-Logan presented her first claims. It is unfortunate that Ms. Lucas-Logan has misapprehended the procedural changes to the resolution of accident benefit disputes effective April 1, 2016
COSTS
[26] Certas shall have its costs of this appeal fixed in the amount of $6000.
Newton J.
I agree _______________________________
Backhouse J.
I agree _______________________________
Kristjanson J.
Released: November 27, 2020
CITATION: Lucas-Logan v. Certas Direct Insurance Company, 2020 ONSC 7313
DIVISIONAL COURT FILE NO.: 32/19
DATE: 20201127
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
BACKHOUSE, NEWTON, KRISTJANSON JJ.
BETWEEN:
EUNICE LUCAS-LOGAN
Appellant
– and –
CERTAS DIRECT INSURANCE COMPANY
Respondent
REASONS FOR JUDGMENT
Newton, J.
Released: November 27, 2020