Surprising the Panel at Divisional Court: Barnes v. Motor Vehicle Accident Claims Fund, 2019 ONSC 1782 (CanLII) by Evan Argentino

Apr 09, 2019

Barnes v. MVACF, argued last month in Divisional Court, demonstrates two major takeaways: you must never surprise the court with relevant and material facts or evidence; and you must ensure that when you apply to the court, the issue(s) to be decided actually affects the parties and are not moot.  The summarized version of the decision below demonstrates that these takeaways are not as obvious as one may think.

Factual Background Given Rise to Judicial Review at the Divisional Court

On January 3, 2012 the Applicant was involved in a snowmobile accident resulting in serious injuries.  Her mother left her job to care for the applicant.  In May 2012 the Applicant began receiving the maximum attendance care benefits of $6,000 per month for non-professional caregiver services provided by her mother.

Section 19 of the Statutory Accident Benefits Schedule (“SABS”) was amended to limit the amount of Attendance Care benefit received by a non-professional caregiver to the amount of wage or salary they earned prior to becoming the caregiver.  This amendment came into force on February 1, 2014.

The respondent, MVACF, brought an application at the Financial Services Commission arguing that the amendment applied retroactively thereby limiting the amount of attendance care benefit entitled to the Applicant.  On November 22, 2016 Arbitrator Sone held that the Applicant’s claim remained subject to the pre-existing SABS.  On Appeal, Director’s Delegate Rogers held on April 6, 2017 that the amendment applied to the applicant, however the quantum of attendance care was not determined because the applicant refused to disclose her mother’s income that she earned at her previous job.

The Applicant sought judicial review of Director Delegate Rogers’ decision, and the MVACF responded to the application, despite two very important facts that were not disclosed until oral submissions.

Two Surprises the Court was not Pleased to Learn during Oral Submissions

To the courts’ surprise, during responding submissions, counsel for the MVACF advised the court that the applicant had recently disclosed that her mother’s former employment income exceeded $6,000 per month.  The MVACF admitted that the applicant is therefore entitled to continue to receive the maximum quantum of attendant care benefit such that the question of giving the amendment retroactive application was not live in this case.

Counsel for MVACF further advised that it has a separate legal proceeding against the snowmobile insurer, Echelon, to determine which of the two are required to pay the applicant’s attendance care benefit.  The issue was arbitrated and then appealed to the Superior Court, where Justice Lederer held that Echelon is the party liable to pay the applicant’s attendant care benefits under the SABS.  Despite such decision, Echelon was not added as a party to the application for judicial review.

Judicial Review Dismissed: Issues are Moot

The Divisional Court was not pleased to learn of these two facts during oral submissions as it demonstrated that the issue before the court as to whether the amended section of the SABS applied retroactively was moot (i.e. a decision of the court will have no practical effect on the rights of the parties).

The applicant mother’s income exceeds the maximum quantum of attendant care benefit and therefore she does not suffer any harm or injustice.  She would be entitled to $6,000 per month in attendant care benefits under both the old and the new SABS.

Furthermore, the MVACF responded to the application for judicial review which it had no interest and neither party moved to add Echelon as a party to the application.

Justice Myers refused award costs to either party due to the “unsatisfactory manner that the application was both brought and to which it was responded.”

A court will never be pleased when presented with a surprise or an issue that is moot,  as it is an inefficient use of judicial time and resources.

Evan Argentino is a student at the firm and the author of this blog. If you have a question about this decision, please contact Evan

Add Comment