[CITATION](http://intra.judicialsecurity.jus.gov.on.ca/NeutralCitation/): Kawa Arab v. Unica Insurance, 2022 ONSC 5761
DIVISIONAL COURT FILE NO.: 21-392
DATE: 20221024
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Tzimas, Nishikawa, Davies JJ
BETWEEN:
KAWA ARAB
Appellant
Zeltoon Vaezzadeh, for the Appellant
- and -
UNICA INSURANCE INC.
Respondents
Amanda M. Lennox, for the Respondents
HEARD: April 14, 2022
INTRODUCTION
[1] The Appellant, Kawa Arab, appeals the preliminary issue decision of Adjudicator Nidhi Punyarthi of the License Appeal Tribunal (“LAT”) dated January 24, 2020 and the subsequent reconsideration decision of the Tribunal Vice Chair, Avril A. Farlam dated March 31, 2021. He claims that adjudicators misapplied the law and relied on an incorrect interpretation of the word “employed.”
[2] The appeal is narrow in scope and relates specifically to the Tribunal’s interpretation of section 5(1) of the Statutory Accident Benefits Schedule, effective September 1, 2010, O.Reg 34/10, (“Schedule”). It is brought pursuant to section 11(6) of the Licence Appeal Tribunal Act.
[3] The Appellant is effectively challenging the adjudicator’s decision that he is not eligible to claim income replacement benefits because he does not meet the criteria for entitlement in section 5(1) of the Schedule. He contends that the adjudicator’s decision violated the modern principles of statutory interpretation and defeats the remedial and consumer protection purpose of the Schedule. He argues that the LAT “shut-out” the Appellant from proceeding with his application for income replacement benefits due to an incorrect application of the law and failure to engage statutory principles in relation to the word “employed” in section 5(1) of the Schedule.
[4] The Respondent disagrees. It contends that both the Adjudicator and the Tribunal Vice Chair were correct in their interpretation of section 5(1) of the Schedule. Insofar as the specific issue comes down to the interpretation of the term “employed” in section 5(1) of the Schedule, the Respondent submits that there is no ambiguity in the term “employed”. Rather, the Respondent argues that when Part II of the Schedule is reviewed in its entirety, the term “employed” is “precise and unequivocal” and neither the Adjudicator nor the Vice Chair erred in their interpretation of that term.
[5] For the reasons that follow the appeal is dismissed. Adjudicator Punyarthi and Tribunal Vice Chair Farlam were correct in their interpretation of section 5(1) of the Schedule. They did not err in their conclusion that Mr. Arab had not met the three criteria per section 5(1) of the Schedule in that he was neither employed at the time of the accident, nor receiving employment insurance at the time of the accident, nor been employed for at least 26 weeks of the 52 weeks preceding the accident.
BACKGROUND
[6] The facts are not materially in dispute. On September 16, 2016, the Applicant was involved in a motor vehicle accident. He claimed certain benefits from the Respondent under the Schedule.
[7] The Employer’s Confirmation Form (OCF-2) filed following the Appellant’s application stated that the Appellant had been absent from work since February 11, 2016 and that his last day of work was February 10, 2016. Copies of the Appellant’s pay stubs from his employer indicated that he was last paid for the period from January 30 to February 13, 2016. Five separate Records of Employment all state that the appellant’s last day of work was February 10, 2016.
[8] While the Appellant did not appear for work after February 10, 2016, he was not formally terminated until November 30, 2016. The appellant received employment insurance benefits until June 12, 2016. In the result, the appellant worked for only 20 weeks, as opposed to the minimum of 26 weeks in the 52 weeks before the accident.
[9] The Appellant was denied income replacement benefits. He filed an application to dispute the Respondent’s denial. At the Case Conference on April 26, 2019, the Respondent raised a preliminary issue with regarding the Appellant’s entitlement to income replacement benefits under section 5(1) of the Schedule.
[10] In her decision of January 14, 2020, with reference to the requirements of section 5(1) of the Schedule, the Adjudicator concluded that the Appellant was not employed at the time of the accident, was not receiving employment insurance benefits at the time of the accident and had not worked a minimum of 26 weeks in the 52 weeks before the accident. The Adjudicator also found that the Appellant’s employment relationship with his employer ended after the accident, on November 30, 2016.
[11] In response to the Appellant’s submission that “employed” ought to be interpreted liberally to refer to the employment relationship as a whole and not be limited to the periods that the Appellant was “working”, the Adjudicator concluded that the evidence before her did not support the Appellant’s proposed interpretation. She expressly noted, “Even if I were to accept liberal interpretations of the term “employed” as proposed by counsel for Mr. Arab, the evidence before me does not support any of the proposed interpretations.”
[12] The Appellant requested the reconsideration of the Adjudicator’s decision. In a decision released on March 31, 2021, the Vice Chair dismissed the reconsideration request and upheld the Appellant’s ineligibility to claim income replacement benefits. The Vice Chair concluded that the language in section 5(1) was clear and unambiguous and that no statutory interpretation of the term “employed” was required beyond the literal approach used by the Adjudicator.
ANALYSIS
Issues and Law
[13] The parties agree that there are two issues for this court’s consideration:
i. What is the appropriate standard of review?
ii. Did the Adjudicator and the Tribunal Vice Chair err in their interpretation of the term “employed” and application of section 5(1) of the Schedule?
[14] To set the context, section 5(1) identifies the eligibility criteria for income replacement benefits:
Eligibility criteria
- (1) The insurer shall pay an income replacement benefit to an insured person who sustains an impairment as a result of an accident if the insured person satisfies one or both of the following conditions:
The insured person,
i. was employed at the time of the accident and, as a result of and within 104 weeks after the accident, suffers a substantial inability to perform the essential tasks of that employment, or
ii. was not employed at the time of the accident but,
A. was employed for at least 26 weeks during the 52 weeks before the accident or was receiving benefits under the Employment Insurance Act (Canada) at the time of the accident,
B. was at least 16 years old or was excused from attending school under the Education Act at the time of the accident, and
C. as a result of and within 104 weeks after the accident, suffers a substantial inability to perform the essential tasks of the employment in which the insured person spent the most time during the 52 weeks before the accident. (my emphasis)
[15] The Respondent submitted that there was no error in law in the LAT’s interpretation of the term “employed”. The Respondent also cautioned that although the Appellant framed the appeal as an error of law, to bring his appeal within the jurisdictional requirements of 11(6) Licence Appeal Tribunal Act, (LAT Act), substantively, the arguments raised errors of fact and mixed fact and law, something that was not available to the Appellant.
[16] In light of the suggested framing, and even though this court does not have the jurisdiction to review errors of fact or mixed fact and law, the Respondent added that on the evidence before the Adjudicator, it was open to the Adjudicator to find as a fact that the Appellant did not work after February 10, 2016. Having made that finding, it was also open to her to decide whether or not the Appellant satisfied one or more of the requirements of section 5(1) of the Schedule.
[17] The Appellant disagreed with the Respondent’s critique and described it as an attempt to redirect the court’s attention to the facts, when the sole issue was whether the Adjudicator and then the Vice Chair failed to appreciate the legal term “employed” within its ordinary and grammatical sense, within the object of the Act, intention of Parliament and scheme of the Act, or within the legislative history of the Schedule.
ISSUE 1: Standard of Review
[18] Section 11(6) of the LAT Act provides that an appeal from a decision of the Tribunal relating to a matter under the Insurance Act may only be on a question of law. Pursuant to Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 (S.C.C.), where a court is hearing an appeal from an administrative decision, it would, in considering questions of law, including questions of statutory interpretation and those concerning the scope of a decision-maker’s authority, apply the standard of correctness in accordance with Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, at para. 8.
[19] On a statutory appeal limited to questions of law, the court considers whether the decision-maker correctly identified and interpreted the governing law or legal standard relevant to the facts found by the decision-maker. If an adjudicator ignores evidence that the law requires to be considered to arrive at a decision, that would amount to an error in law, see Canada (Director of Investigation and Research) v. Southam Inc., 1997, 385 at para. 41. Challenges to the sufficiency of or the weight given to evidence supporting a finding of fact do not give rise to a question of law. An error in law or legal principle made during the fact-finding exercise, however, can give rise to an extricable question of law.
[20] The Court’s review of a Reconsideration Decision is narrower than the review of an Adjudicator’s decision by the Vice Chair who undertakes the review. The question for the Court is to determine whether in her reconsideration of the underlying decision, the Vice Chair erred in law in the way she conducted the review or in her decision.
[21] I reject the Respondent’s critique that the Appellant appeal raises an error of fact or mixed fact and law. As I understand the Appellant’s argument, the Adjudicators’ error lay in their narrow interpretation of the term “employed” which limited their consideration to the weeks that the Appellant was at work, as opposed to taking into account the employment relationship as a whole and the formal termination on November 30, 2016. A broad interpretation of the term “employed” would have brought the Appellant within the requirements of section 5(1) of the Schedule because the employer ended the formal employment relationship on November 30, 2016, a few months after accident. This is an error of law and the standard or review for a statutory appeal on a question of law is correctness.
ISSUE 2: Did the LAT err in the interpretation and application of section 5(1) of the Schedule?
[22] The LAT did not err in its interpretation and application of section 5(1) of the Schedule. In the context of the legislative scheme, when the term “employed” is considered in its ordinary and grammatical sense, and with reference to a fair and just result, it is clear and unambiguous that employed is connected to income-earning and receiving wages in exchange for services being rendered.
[23] The modern principle to statutory interpretation requires a purposive approach. The words of a statute are to be read in their entire context and in their grammatical and ordinary sense, harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament. See Vavilov at para. 117.
[24] Those who draft and enact statutes expect that questions about their meaning will be resolved by an analysis that has regard to the text, context and purpose, regardless of whether the entity tasked with interpreting the law is a court or an administrative decision maker. The Adjudicators were required to approach their interpretation of the Schedule in a manner consistent with this principle of interpretation, Vavilov, at para. 118.
[25] I agree with the Respondent that administrative decision-makers are not required to engage in a formalistic statutory interpretation exercise in every case. In addition, when they interpret a particular provision, administrative decision makers may rely on their specialized expertise and experience to enrich and elevate the interpretive exercise. However, where, as in this case, the meaning of a statutory provision is disputed, administrative decision-makers must demonstrate in their reasons that they were alive to need to interpret the impugned provision in a manner that is consistent with the text, context, and purpose of the provision.
[26] The question of law for my consideration comes down to the following analysis: a) Is the term “employed” in section 5(1) of the Schedule clear and unambiguous in its meaning? and b) were the adjudicators, both in the first instance and in the reconsideration alive to the need to interpret the term in a manner that is consistent with the text, context, and purpose of the provision?
a) Is the term “employed” in section 5(1) of the Schedule clear and unambiguous?
[27] When read in its entire context and in the grammatical and ordinary sense, harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament, the term “employed” is unambiguous. The purposive approach to statutory interpretation requires the Court to take the following three steps: 1. Examine the words of the provision in their ordinary and grammatical sense; 2. Consider the entire context of the provision; and 3. Whether the proposed interpretation produces a just and reasonable result.
[28] Section 5(1) is located with Part II of the Schedule, which is entitled Income Replacement, Non-Earner and Caregiver Benefits. This section provides a weekly benefit to income earners, non-income earners and / or caregivers. Section 7 provides for the quantification of the income replacement benefits to be based on the “gross employment income” as defined in section 4(1), which refers to “salary, wages and other remuneration from employment, including fees and other remuneration for holding office, and any benefits received under the Employment Insurance Act (Canada), but excludes any retiring allowance within the meaning of the Income Tax Act (Canada) and severance pay that may be received”.
[29] Although the legislation does not define the term “employed”, when the term is read in its ordinary grammatical sense and considered within the context of Part II of the Schedule it is clear and unambiguous that section 5(1) is not just about the existence of a formal employment relationship. Its purpose is to determine the eligibility to income replacement benefits with reference to the exchange of wages, salary, or other remuneration for services, over a defined period.
[30] Support for this conclusion can be found in the Tribunal’s decision, T.M. v. Aviva General Insurance, 2020 45485 (ON LAT) at paras. 10-16. In that decision, the adjudicator acknowledged that the current version of the Schedule did not define the term employed, leaving it open to interpretation. The adjudicator also acknowledged that the term should be interpreted in favour of the insured as intended by the consumer protection legislation mandate of the Schedule. However, the adjudicator found that a component of the term “employed” included the reference to one’s weekly employment income. The term “employed” in section 5 must therefore be considered in connection with the requirements of section 7 to properly interpret its parameters.
[31] Insofar as the Appellant relied on Joyce v. Cooperators, 1997 CarswellOnt 1423 (OIC), (upheld by the Ont. Div. Ct.), the distinguishing features of the applicable provisions at the time of Joyce, and the methodology used by the Director’s Delegate to define the term “employed” support the arguments advanced by the Respondent.
[32] Joyce was decided under the predecessor legislation to the current provisions. There, too, the term “employed” was not defined. The question for consideration in Joyce was whether, as a casual employee, the claimant met the definition of “employed” so that she may access benefits. The decision-maker relied on the context of the legislation, which expressly contemplated compensation for individuals on a temporary lay-off, to define the term “employed” and find that Joyce satisfied the “employed” requirement and was entitled to benefits.
[33] Reference to people on “temporary lay-off” has been removed from the current provisions of the Schedule. Had the Legislature intended for income replacement benefits to be paid during temporary and / or prolonged absences from employment, it could have included that in the legislation, but it did not. To put it into the Appellant’s context, if section 12 were still the operative legislation, the Appellant would have been correct to rely on Joyce, to support his claim as somebody who remained “employed”, even though he had not worked for months. But the legislation changed. Under the present scheme, section 7 is the section that provides the context for the interpretation of section 5 and section 7 focusses on “gross employment income.” When read together, it is clear and unambiguous that the term “employed” is tied to wages in exchange for services.
[34] As to whether the interpretation of “employed” with reference to sections 4 and 7 of the Schedule produces a fair and just result, the result reflects the minimum requirement of 26 weeks employment out of a 52 week period for income replacement benefits, as contemplated by the legislation. When read in its entirety, Part II of the Schedule intended income earners and non-income earners to be treated differently. It also intended some minimum requirements. The legislature expressly removed the reference to temporary lay-offs. While I appreciate the Appellant’s argument that the Schedule is about consumer protection and the interpretation of “employed” should be interpreted broadly, interpreting the term to capture anyone in an employment relationship independent of their income-earning situation does not accord with the overall parameters of the Schedule.
b) Were the adjudicators, both in the first instance and in the reconsideration alive to the need to interpret the term in a manner that is consistent with the text, context, and purpose of the provision?
[35] The answer to this question is “yes”. Although both decision-makers were very nimble in their reasons, the Adjudicator was alive to the concern about the interpretation of the term “employed”. She went as far as to indicate that even on a liberal interpretation of the term “employed”, the evidence before her was insufficient to support the proposed interpretation and find in Mr. Arab’s favour. The adjudicator expressly considered the termination letter and found that it, on its own, was insufficient to bring the Appellant’s claim within the parameters of s.5 of the Schedule.
[36] Similarly, the Tribunal’s Vice Chair was very much alive to the concerns over the interpretation of “employed”. The Vice Chair turned her mind to the issue, held that the term “employed” was clear and unambiguous within s. 5(1) of the Schedule and was therefore not required to engage in any statutory interpretation. Given that other adjudicators have recognized that the term “employed” is not defined in the legislation, it may have been useful for the Vice Chair to elaborate on the reasons for the finding that the term “employed” was unambiguous and clear. However, that flaw does not rise to the level of amounting to an error in law.
CONCLUSION
[37] For the foregoing reasons the appeal is dismissed. The parties agreed to costs of $3500 to be awarded to the successful party. Accordingly, the Respondent is entitled to the said costs.
Tzimas J.
I agree, ___________________________
Nishikawa J.
I agree, ___________________________
Davies J.
Released: October 24, 2022
CITATION: Kawa Arab v. Unica Insurance, 2022 ONSC 5761
DIVISIONAL COURT FILE NO.: 21-392
DATE: 20221024
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
BETWEEN:
KAWA ARAB
Appellant
- and –
UNICA INSURANCE INC.
Respondents
REASONS FOR JUDGMENT
Released: October 24, 2022