CITATION: DeGroot v. Licence Appeal Tribunal, 2022 ONSC 6160
DIVISIONAL COURT FILE NO.: 876/21
DATE: 20221102
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Edwards R.S.J., D.L. Corbett and O’Brien JJ.
BETWEEN:
Byrnell DeGroot
Gus Triantafillopoulos, for the Appellant
Appellant
– and –
Licence Appeal Tribunal and
Trevor Guy, for Licence Appeal Tribunal
Security National Insurance Company
Joseph Hogan, for Security National
Respondents
HEARD at Toronto (by videoconference):
March 24, 2022
EDWARDS R.S.J.
Overview
[1] The Appellant was injured in a motor vehicle accident on November 12, 2017 (the "Accident"). The Appellant sought an income replacement benefit ("IRB") from the Respondent, Security National Insurance Company (the "Insurer"), pursuant to the Statutory Accident Benefits Schedule – effective September 1, 2010 (the "SABS"). The Appellant applied to the Licence Appeal Tribunal (the "LAT") where the main issue was whether the Appellant was entitled to an IRB from November 19, 2017 to date and ongoing and if so, in what amount.
[2] The LAT determined that the Appellant was entitled to an IRB in the amount calculated by his expert accountant. The Appellant’s request for a "special award" was denied. The Appellant asked the LAT to reconsider its decision. The LAT affirmed its decision. The Appellant appeals to this court and argues that the Adjudicator made an error of law in his interpretation of section 7 of the SABS. The Appellant argues he is owed a higher IRB for the period November 12, 2019 to October 6, 2020.
The Facts
[3] The Appellant was injured in the Accident. He applied to the LAT in May 2020, claiming entitlement to an IRB. At the time of the Accident, the Appellant was self-employed as a heavy machine operator and, as a result of his injuries, it is alleged that he has been unable to return to his pre-accident employment, or any occupation for which he is reasonably suited by training, education, or experience. The Respondent is responsible for providing the Appellant with accident benefits insurance coverage pursuant to Policy #28858039 (the "Policy"), which includes IRBs.
[4] At the hearing before the LAT, both the Appellant and Respondent presented expert accounting evidence. The Adjudicator accepted the evidence of the Appellant’s expert and determined that the Appellant was entitled to an IRB to October 6, 2020 for a total amount of $32,488.04 and thereafter, once the amount had been calculated.
[5] Prior to the hearing before the LAT, the parties attended a case conference on October 2, 2020, at which time the LAT issued a case conference report, which amongst other things confirmed that the issues in dispute included:
(a) whether Mr. DeGroot was entitled to an IRB from November 17, 2017 to date and ongoing, and if so, in what amount;
(b) whether the Insurer was liable to pay Mr. DeGroot a "special award" under O. Reg. 664 for unreasonably withholding or delaying payment; and
(c) whether Mr. DeGroot was entitled to interest on any amount outstanding.
The LAT Adjudicator’s Decision
[6] On March 26, 2021, the Adjudicator, Robert Watt, determined that based on the Respondent’s concession in May 2018 that the Appellant was entitled to an IRB and the Respondent’s concession that the Appellant was entitled to an IRB post 104 weeks, the Appellant was therefore entitled to a total IRB from November 12, 2017 to October 6, 2020 in the amount of $32,488.04.
[7] As it relates to quantum, Adjudicator Watt accepted the Appellant’s evidence as reflected in the expert evidence of the Appellant’s accountant who determined the Appellant was entitled to an IRB of $161.11 per week.
[8] As for the period after October 6, 2020, Adjudicator Watt could not determine the quantum of the IRB because no further calculations were provided by either expert tendered by the Appellant and the Respondent.
The Request For Reconsideration
[9] On October 14, 2021, the Appellant filed a request for reconsideration with the LAT and argued, among other things, that Adjudicator Watt had incorrectly determined the quantum of the IRB. Specifically, he argued that while his own expert had determined the weekly IRB from November 19, 2019 to October 6, 2020, he was in fact entitled to the minimum weekly IRB payable (ie. $185).
[10] The Appellant also argues that Adjudicator Watt erred in not determining his IRB quantum for the period after October 6, 2020 and that as a matter of procedural fairness he should have been entitled to at least $185 per week.
[11] As part of his reconsideration request, the Appellant also argued that Adjudicator Watt had erred in determining that he was not entitled to a "special award".
[12] The Appellant’s request for reconsideration was dismissed by the LAT on October 21, 2021. In coming to this result, Adjudicator Watt determined that there was no error in calculating the quantum of the IRB from November 12, 2019 to October 6, 2020. Adjudicator Watt determined that section 7(3) of the Schedule allowed post accident income to be deducted from an insured’s IRB. This was precisely what the Appellant’s own expert had done in arriving at approximately $163 per week as opposed to the minimum amount the Appellant suggested he was entitled to, specifically $185 per week.
[13] As for the question of any error in not determining the quantum entitlement after October 6, 2020, Adjudicator Watt determined that this issue was moot because the Respondent had confirmed on April 21, 2021 that it would pay the Appellant an IRB from October 6, 2020 and ongoing in the amount of $400 per week.
[14] As for the issue of the Appellant’s request for reconsideration of the "special award", Adjudicator Watt determined that there was no error in denying his request for a "special award".
The Issues
[15] There are three issues raised by the Appellant. The first issue is whether the LAT made an error of law by not awarding the Appellant an IRB of $185 per week for the period from November 12, 2017 to November 31, 2019 and ongoing. This issue specifically engages the interpretation of section 7(2)(1)(ii) of the Schedule, which in essence stipulates that the minimum weekly base amount of an IRB for an insured after 104 weeks of disability is $185. This issue also engages section 7(3) of the Schedule, which as applied by the Appellant’s own expert, allows for a deduction of 70% of the Appellant’s post accident gross weekly income. This resulted in an IRB payable of less than $185 as provided for in section 7(2)(1)(ii) of the Schedule.
[16] The second issue raised by the Appellant is whether the LAT made an error of law by not quantifying the amount of the Appellant’s entitlement to ongoing IRBs beyond October 6, 2020.
[17] The third issue raised by the Appellant is whether the LAT violated the rules of natural justice and procedural fairness in his decision to not grant the Appellant an award under section 10 of O. Reg. 664, or what is more commonly referred to as a "special award".
Jurisdiction and Standard of Review
[18] Pursuant to section 11(1) and (6) of the Licence Appeal Tribunal Act, 1990, SO 1999, c. 12 (the "Act"), this court has jurisdiction to hear this appeal on questions of law only. Because this appeal is statutorily restricted to questions of law, the correctness standard applies. See Canada (Minister of Citizenship & Immigration) v. Vavilov 2019 SCC 65.
Positions of the Parties
Issue One – Did the LAT make an error of law by not awarding the Appellant an IRB of $185 per week per week for the period of November 12, 2019 to December 31, 2019 (i.e., did the LAT error in its application of section 7 of the Schedule?
[19] The Appellant argues that the proper application of section 7(2)(1)(ii) of the Schedule requires an insurer to pay a minimum of $185 per week beginning at the 104-week mark post accident. The Respondent accepts that section 7(2)(1)(ii) of the Schedule provides that the minimum weekly base amount of an IRB for an insured after 104 weeks of disability is $185. The Respondent however argues that s.7(3)(b) of the Schedule allows an insurer to deduct from the minimum IRB, 70% of any income from self employment earned by the insured person after the accident.
[20] In support of its position, the Respondent argues that Adjudicator Watt was correct in his approach to determine the amount owed to the Appellant and specifically was correct in his reliance on the evidence provided by the Appellant, which specifically calculated the amount the Appellant was entitled to at $161.44 per week. The Appellant’s expert had properly applied section 7(3) of the Schedule.
Issue Two – Did the LAT make an error of law by not quantifying the amount of ongoing IRB payments owed beyond October 6, 2020?
[21] The Appellant argues that Adjudicator Watt failed to address the issue of the amount of ongoing IRB payments and this was an error because Adjudicator Watt was required to answer the legal questions before him. The Respondent argues that Adjudicator Watt relied on the only evidence before him in the quantification of payments, as well as his finding that this issue was moot.
Issue Three – Did the LAT made an error of law by failing to make a "special award" pursuant to section 10 of Regulation 664?
[22] The Appellant argues that the test outlined in section 10 of Regulation 664 requires the Appellant to simply show that the insurer has unreasonably withheld or delayed payments and that this burden was discharged at the original hearing.
[23] The Respondent submits that the decision not to make a "special award" under section 10 is a discretionary decision based on the facts and that an appeal from that decision involves questions of fact or mixed fact of law which cannot be heard by this court.
[24] Both the Respondent and the LAT also submit that Adjudicator Watt did not make an error of law as it relates to a question of a "special award"; that he applied the correct legal tests set forth in section 10 and that how he weighed the evidence is a question of fact, which cannot be appealed.
Issue One - the minimum IRB amount
(a) The Decision at the Hearing
[25] Adjudicator Watt did not make any error in relation to the calculation of IRBs owed to the Appellant, nor did he make any error in fixing the weekly amount at $161.44 as established in the Appellant’s evidence adduced through his own expert.
[26] It was within the adjudicator’s discretion to accept the calculations of the Appellant’s expert where those were the only calculations before him. In that regard, it is also important to note that the Appellant’s own expert calculated the amount owing by considering section 7(3) of the Schedule. This is contrary to the position now asserted by the Appellant, where the Appellant argues that section 7(2)(1)(ii) of the Schedule is determinative and stipulates that the minimum weekly base amount of an IRB after 104 weeks of disability is $185.
(b) The Decision on Reconsideration
[27] Effectively, at the Hearing, the Appellant conceded the point he argued on Reconsideration and now argues before this court, and so the Respondent and the Adjudicator did not address at the Hearing the contrary position the Appellant now advances in this court. Generally, this court will not permit new issues to be raised on appeal: Perez v. Governing Council of the Salvation Army of Canada (1998), 1998 7197 (ON CA), 42 OR (3d) 229 (CA); Kaiman v. Graham, 2009 ONCA 77. Parties are expected to raise all of their issues at first instance: it offends the principle of finality to permit parties to raise issues serially, on appeal. It would have been in the discretion of the LAT, on reconsideration, to refuse to entertain this issue on the basis that the appellant had admitted at the Hearing that the benefit was $161.44 per week and not some greater amount.
[28] This said, the LAT did consider the appellant’s argument on Reconsideration and rejected it for the following reasons, with which I agree:
The applicant argues that the amount of IRB should be the minimum of $185.00 per week and disputed his accountant's calculations. The applicant's argument is contrary to his own accountant's calculations, taking into account section 7(3) of the Schedule, which the applicant has ignored.
The Tribunal found the amount to be, as the applicant's own accountant calculated the amount. The applicant's accountant took into account sections 7(2)1(i) and 7(3)(b) of the Schedule and properly calculated the amount. I don't agree with the applicant's' interpretation of section 7(3)(b) of the Schedule not applying, as this section has no limitations attached to it, and is therefore universal in its application.
I find therefore that there was no error of law or fact made by the Tribunal.
Issue Two – Did the LAT err in refusing to determine a quantum of IRBs after October 6, 2020
[29] The relevant issue as it relates to the quantum of the IRB after October 6, 2020 is not the propriety of the LAT’s original decision refusing to determine the quantum of the Appellant’s post 104 IRB, but rather Adjudicator Watt’s exercise of discretion to refuse to decide a matter he had found to be moot.
[30] While the issue of mootness as it relates to the reconsideration of the decision of Adjudicator Watt is determinative of this issue it is worth repeating paragraph 39 of Adjudicator Watt’s original decision where he stated:
There are no other calculations for the period following October 6, 2020. I cannot therefore make any order to cover that period. Hopefully the parties will exchange the appropriate financial data and other information required to determine that IRB payments, after October 6, 2020.
[31] If there had been no reconsideration decision and if the issue of mootness had not been raised Adjudicator Watt would have been equally correct in his determination reflected in paragraph 39 above.
[32] As previously noted, the parties had attended a case conference in October 2020 and had framed the issues in dispute. The first issue was whether or not the Appellant was entitled to an IRB from November 17, 2017 to date and ongoing and if so in what amount. The Appellant had the onus at the hearing before Adjudicator Watt to prove the quantum of the IRB. The expert evidence supplied by the Appellant did not provide Adjudicator Watt with the tools that he required to calculate an ongoing benefit. The Appellant simply did not meet his onus, which is why Adjudicator Watt made the decision he did reflected in paragraph 39 above and simply asked the parties to try and "work it out". In essence, the admonition from Adjudicator Watt was followed by the Respondent when it agreed on April 21, 2021 to pay the Appellant an IRB from October 6, 2020 and ongoing in the amount of $400 per week, which is the maximum amount ordinarily payable under the Schedule.
[33] As it relates to the question of mootness, the decision of whether to hear and decide a moot issue is one which is an exercise of discretion. This court must therefore defer to the exercise of the LAT’s discretion unless the decision of the Adjudicator was unreasonable; was based on irrelevant or extraneous considerations; was based on a wrong principle, or where no weight had been given to a relevant consideration. - See Canadian Pacific Ltd. v. Matsqui Indian Band 1995 145 (SCC), [1995] 1 SCR 3 at paras. 39 and 112; Volochay v. College of Massage Therapists of Ontario 2012 ONCA 541 at para. 52; Strickland v. Canada (Attorney General) 2015 SCC 27 at para. 39; and Ball v. McAulay 2020 ONCA 481 at paras. 118 and 124.
[34] The Adjudicator reasonably exercised his discretion when he determined this issue was moot. This is particularly so recognizing that the question of the Appellant’s entitlement to a post 104 IRB is scheduled before a hearing before the LAT in November 2022. It would be premature and inappropriate to ask this court to hear submissions on the issue of entitlement to post 104 IRBs where this same issue is currently in dispute between the parties and scheduled for a timely hearing at the LAT.
Issue Three – Did the LAT violate the rules of natural justice and procedural fairness in its decision to not grant the Appellant a "special award" under section 10 of Regulation 664
[35] Pursuant to section 11(6) of the Act, appeals from the decision of the LAT may only be made on questions of law. The standard of review, as it relates to a question of law, is correctness - see Vavilov at para. 37. The determination of what amounts to an error of law in the context of a "special award" was reviewed by this court in Malitskiy v. Unica Insurance Inc. 2021 ONSC 460. The court made clear in its decision that the issue of whether to grant a "special award" under section 10 is very fact specific and engages a high degree of discretion.
[36] Adjudicator Watt properly identified the test for what constitutes unreasonable behaviour as reviewed in Malitsky. What constitutes unreasonable behaviour on the part of an insurer in withholding or delaying payments must amount to unreasonable behaviour, which was excessive, prudent, stubborn, inflexible, unyielding, or immoderate. Adjudicator Watt properly reviewed what constitutes unreasonable behaviour when he stated at paragraph 42 of his reasons:
The Respondent in this case was relying on its expert witness PWC to calculate the amount of the IRB to be paid. PWC continued to maintain right up to the hearing that it did not have the requisite information calculating the IRB amount. Even though PWC was requesting more information than CRA and was wrong it is position, this does meet the criteria for making an award. I am therefore not ordering any award.
[37] Adjudicator Watt properly referenced the correct test to determine whether the conduct of the Respondent amounted to unreasonable behaviour and exercised his discretion in refusing to make a "special award". Adjudicator Watt made no error of law as it relates to the exercise of his discretion, having considered the evidence, the facts, and the submissions of the parties. Adjudicator Watt’s substantive decision on this issue does not give rise to an issue of natural justice or procedural fairness.
Disposition
[38] For these reasons the appeal is dismissed with costs in the amount of $5,000.00, inclusive.
EDWARDS R.S.J.
I agree D.L. CORBETT J.
I agree O’BRIEN J.
Released: November 2, 2022
CITATION: DeGroot v. Licence Appeal Tribunal, 2022 ONSC 6160
DIVISIONAL COURT FILE NO.: 876/21
DATE: 20221102
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Edwards R.S.J., D.L. Corbett and O’Brien JJ.
BETWEEN:
Byrnell DeGroot
Appellant
– and –
Licence Appeal Tribunal and Security National Insurance Company
Respondents
REASONS FOR DECISION
D.L. Corbett J.
Released: November 2, 2022