CITATION: Basuric v. Dominion of Canada General Insurance Company, 2022 ONSC 6148
DIVISIONAL COURT FILE NO.: 685/21
DATE: 20221124
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
M. Edwards R.S.J., Stewart and Nishikawa JJ
BETWEEN:
SLADANA BASURIC
Appellant
– and –
DOMINION OF CANADA GENERAL INSURANCE COMPANY (TRAVELERS)
Respondent
Yu Jiang, for the Appellant
Jane Cvijan, for the Respondent
HEARD at Toronto by videoconference: June 16, 2022
M. EDWARDS, RSJ.
Overview
[1] This is an appeal by Sladana Basuric (“Basuric”) from a reconsideration decision issued by the Licence Appeal Tribunal (the “Tribunal”) on July 14, 2021. The Tribunal in its reconsideration decision held that Basuric’s application for statutory accident benefits (“SABs”) was barred because she had failed to notify the Respondent, Dominion of Canada General Insurance Company (“Travelers”) within the prescribed timelines of the circumstances giving rise to her claim for benefits by the Statutory Accident Benefits Schedule, O. Reg 34/10 (the “Schedule”).
[2] Travelers argues that the reconsideration decision involves findings of mixed fact and law and as such Basuric has no right of appeal. The main issue in this appeal is whether Basuric raises a question of law to be reviewed on a standard of correctness.
The Facts
[1] On January 3, 2015, Basuric’s daughter, Tiana Basuric (“Tiana”) was involved in a motor vehicle accident (the “Accident”). Tiana suffered significant injuries, including fractures to her pelvis, a right hip fracture, a ruptured bladder and spleen, as well as a right lung contusion. At the time of Accident, Tiana was eighteen years of age having been born on October 6, 1996. Basuric was not involved in the Accident, nor was she at the scene of the Accident.
[2] Tiana applied for SABs through the same policy of insurance as Basuric.
[3] Between January 2015 and March 2018, Basuric provided Tiana with attendant care services. In order to do so, Basuric stopped working.
[4] Basuric gave notice in accordance with section 32(1) of the SABs (the “Notice”) by delivering an application for accident benefits/OCF-1 (the “OCF-1) in April 2018.
[5] Upon receipt of the OCF-1, Travelers required an explanation for the delayed Notice. Basuric provided a sworn statement on May 23, 2018 (the “Statement”) in which she indicated that Notice was late because she did not know about coverage.
[6] A dispute then arose between Basuric and Travelers regarding her entitlement to SABs. Basuric filed an application with the Tribunal and in response, Travelers sought a preliminary issue hearing to determine whether section 55(1)1 of the SABs prohibited the application because of Basuric’s failure to comply without reasonable explanation with the time limit provided in section 32(1) of the SABs.
[7] The Tribunal scheduled a written preliminary issue hearing which proceeded on January 25, 2021. In its preliminary issue submissions, Travelers took the position that notice under section 32(1) of the SABs had to be given within seven days of the motor vehicle accident or as soon as was practicable thereafter. Travelers argued that Basuric’s notice was late because it was given more than seven days after the accident and that she could have provided notice sooner than April 2018.
[8] Responding to the position asserted by Travelers, Basuric acknowledged that she had given notice by way of her OCF-1 delivered on April 2018. However, in her written submissions, Basuric argued it was not possible for her to give notice before April 2018 and that her explanations for the delay in notice were reasonable.
[9] On January 11, 2021, Vice-Chair McGee issued a preliminary issue decision. In her decision, the Vice-Chair noted that the parties agreed that notice was given on April 25, 2018. The Vice-Chair determined that Basuric could have given notice sooner and that her explanations for the delay in providing notice were not reasonable. Basuric had claimed that she was ignorant of the extent of her coverage. The Vice-Chair determined that ignorance was not a reasonable explanation. Basuric also argued that she had been unable to inquire about the extent of coverage due to the stress she was under providing care for her daughter. The Vice-Chair determined that the stress that Basuric suffered could not justify the three-year delay in her inquiring about coverage and was incompatible with Basuric having been able to coordinate two extended vacations to Bosnia for her and her daughter.
[10] Upon receipt of the decision of the Vice-Chair, Basuric requested reconsideration on grounds that the Vice-Chair had made an error of law and fact. Basuric argued in particular that the Vice-Chair had misstated the timeline set forth in section 32(1) of the Schedule for giving notice of intention to apply for SABs.
[11] On July 14, 2021, Vice-Chair McGee upheld her decision and concluded that Basuric had not identified an error of law or fact that would have likely led the Tribunal to a different conclusion on the preliminary issue. Vice-Chair McGee noted in her reconsideration decision that Basuric had not, prior to the reconsideration decision, argued that the accident was not the triggering event for the notice period and, as such, she could not now make this argument. Vice-Chair McGee further observed that the position taken by Basuric on reconsideration contradicted her overall position that it was the Accident that had caused her impairments.
Jurisdiction and Standard of Review
[12] On an appeal from a decision of the Tribunal, this Court has jurisdiction to hear an appeal on questions of law only-see section 11(3) of the Licence Appeal Tribunal Act, 1999, S.O. 1999, c.12 (the “LAT Act”).
[13] As for the standard of review, in Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, the Supreme Court of Canada determined that “Appellate standards of review” are to be applied on statutory appeals (i.e., correctness on questions of law and palpable and overriding error on questions of fact and mixed fact and law). Because this appeal is limited to questions of law only, the applicable standard of review in this appeal is correctness: See Aviva Insurance Company of Canada v. J.A. and Licence Appeal Tribunal, 2021 ONSC 3185 at para. 2.
Position of the Appellant Basuric
[14] Basuric argues that the Vice-Chair erred in law with respect to her interpretation of section 55(1)(i) of the Schedule. Specifically, she argues that the time requirement set forth in section 55(1)(1) (“within the times prescribed by this regulation”) applies only to that section’s second part (submitting an application for benefits). Basuric argues that the Vice-Chair erroneously extended it to the first part of that section (notifying the insurer of circumstances given rise to a claim for a benefit) and that the first part is not subject to a time requirement “as long as it is done before an application to the Tribunal”.
[15] Basuric argues that the interpretation of the Vice-Chair is contrary to the grammatical and ordinary sense of the words in that section and would require the legislature to have inserted a comma before the words “within the times prescribed by this regulation”. Basuric also argues that the SABs is consumer protection legislation and therefore the Schedule should be given a fair and large liberal interpretation.
Position of Travelers
[16] Travelers argues that the issue raised by Basuric relates to a limitation period and, as such, gives rise to a question of mixed fact and law. Basuric has a statutory right of appeal to this court, which is restricted to questions of law and, as such, Travelers argues that the issues raised by Basuric are not properly before this Court.
[17] Alternatively, Travelers argues that Basuric’s appeal must fail because it is based entirely on new legal arguments related to the statutory interpretation of sections 32(1), 32(10), and 55(1)(1) of the SABs.
The Legislative Notification Requirements for an Application for Accident Benefits
[18] After an automobile accident, a person may seek accident benefits from their insurer. Section 32(1) provides for a time limit for a person to notify their insurer with respect to their intention to apply for accident benefits. Section 32(1) provides:
A person who intends to apply for one or more benefits described in the Regulation shall notify the insurer of his or her intention no later than the seventh day after the circumstances arose that give rise to the entitlement to the benefit, or as soon as practicable after that date. (emphasis added)
[19] If the time limit, as provided in section 32(1) above, is not complied with, an insured may still notify their insurer of their intention to seek accident benefits provided a “reasonable explanation” is provided. In that regard, section 34 of the Schedule provides:
A person’s failure to comply with the time limit set out in the part does not disentitle the person to a benefit if the person has a reasonable explanation.
[20] An insured may apply to the LAT under section 280 of the Insurance Act to resolve disputes over accident benefits under the Schedule. However, section 55 of the Schedule bars an insured from applying to the LAT in certain circumstances. As it relates to the application in this appeal, section 55(1)(1) of the Schedule provides as follows:
(1) Subject to subsection (2) an insured person shall not apply to the Licence Appeal Tribunal under subsection 280(2) of the Act if any of the following circumstances exist:
(i) The insured person has not notified the insurer of the circumstances giving rise to a claim for a benefit or has not submitted an application for the benefit within the times prescribed by this regulation.
Analysis
[21] In Basuric’s reconsideration submissions to the Vice-Chair, Basuric specifically stated:
The Tribunal made an error of law and fact such that the Tribunal would have likely reached a different decision had the error not been made.
[22] In her submissions for reconsideration, Basuric alleged that part of the error of fact and law made by the Vice-Chair was the failure to consider what the “circumstances” were that triggered her obligation as the insured to give notice under section 32 of the SABs. Vice-Chair McGee correctly noted that this was a new legal argument, which was properly addressed at paragraphs 9 – 13 of the reconsideration decision and, in particular, where Vice-Chair McGee stated:
There are a number of flaws in the applicant’s reconsideration submissions. First, paragraph 5 of the Tribunal’s decision is not a misstatement of the statutory test as the applicant suggests; it is a statement of common ground between the parties as acknowledged in their preliminary issue hearing submissions: that the timeline for giving notice under section 32(i) in the circumstances of this case was no later than seven days after the accident, or as soon as practicable after that day. The applicant misapprehends this paragraph of the Tribunal’s reasons.
Second, it is clear from the respondent’s submissions on the preliminary issue (which were filed first into which the applicant responded) that the respondent viewed the accident as the relevant date for the purposes of a section 32(i) analysis. Importantly, the applicant did not contest this in her preliminary issue submissions. Rather, her submissions proceeded from the very same departure point, namely that the circumstances giving rise to her entitlement to benefits was the January 15, 2015 accident. Her submissions focused instead on the reasonableness of her explanation for the delay. The argument that the relevant date triggering the notice period was in March of 2018 is a new argument raised on reconsideration. It was open to the applicant to raise this defence to the preliminary issue at the hearing, but she did not. A reconsideration is not an opportunity to advance new or alternative arguments not advanced at the hearing.
[23] There is no basis to interfere with the reconsideration decision of the Vice-Chair. The issues raised by Basuric on this appeal are issues of mixed fact and law.
[24] In Yatar v. TD Insurance Meloche Monnex, 2021 ONSC 2507, this Court determined that a limitation period involving a statutory accident benefits dispute gives rise to a question of mixed fact and law. While the decision in Yatar was appealed to the Court of Appeal, the appeal only addresses the issue of this Court’s determination as it related to the judicial review application as opposed to the appeal. The decision of this Court in Yatar, as it relates to whether a limitation period involves a question of law or a mixed question of law, was not dealt with by the Court of Appeal.
[25] The issues raised by Basuric in this appeal relate to her arguments concerning why she did not provide notice to her insurer until well after three years post accident. These issues involve issues of fact and law and, as such, applying the principles in Yatar, this Court has no jurisdiction to hear Basuric’s appeal as the issues raised are issues of mixed fact and law.
[26] I am also of the view that, even if the issues raised by Basuric were properly appealed to this Court, she is raising issues that were not raised before the LAT and, as such, it would be improper to hear those issues on an appeal.
[27] The appeal is therefore dismissed with costs, which are fixed in the agreed-upon amount of $6,000, payable by Basuric within 30 days.
“M. EDWARDS, RSJ.”
“STEWART, J.”
“NISHIKAWA, J.”
Released: November 24, 2022
CITATION: Basuric v. Dominion of Canada General Insurance Company, 2022 ONSC 6148
DIVISIONAL COURT FILE NO.: 685/21
DATE: 20221124
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
M. Edwards R.S.J., Stewart and Nishikawa JJ
BETWEEN:
SLADANA BASURIC
Appellant
– and –
DOMINION OF CANADA GENERAL INSURANCE COMPANY (TRAVELERS)
Respondent
REASONS FOR DECISION
M. EDWARDS, RSJ.
Released: November 24, 2022