In Campisi v. Ontario, 2017 ONSC 2884, plaintiff lawyer and Osgoode Hall Law School insurance law professor Joseph Campisi (himself the applicant) challenged the constitutionality of two sections of the Insurance Act:
1. Section 267.5 (1), which limits the pre-trial recovery of a plaintiff’s income loss to 70% of gross income; and,
2. Section 280, which grants sole jurisdiction to the LAT to resolve Statutory Accident Benefits Schedule (“SABS”) disputes.
Mr. Campisi argued that the sections of the Insurance Act violated sections 15 and 7 of the Charter of Rights and Freedoms (“Charter”), and that section 280 violated section 96 of the Constitution Act, 1867.
Out of the gate, Justice Belobaba (who interestingly, himself was a former Osgoode Hall Law School professor) found that Mr. Campisi had no standing to bring the Charter application in the first place. He had not been injured in an automobile accident. He did not have a tort action or a LAT appeal. The fact that Mr. Campisi a) is a personal injury lawyer, b) drives an automobile, and c) attested to having concern for the welfare of all accident victims, was not enough to establish private interest standing to bring the application. The Court also found that Mr. Campisi lacked public interest standing to bring the application where it was found that he did not have a real stake or genuine interest in the constitutional validity of the two sections of the Insurance Act. Justice Belobaba found that a Charter application brought by a claimant or plaintiff be a more effective way of bringing the issues before the court. The Court relied the Supreme Court of Canada in McKay v. Manitoba, where it was held that Charter decisions should not be made in a vacuum in the absence of a factual matrix. Where Mr. Campisi was not directly, personally effected by the sections of the Insurance Act, there was no evidence before the court regarding how the Insurance Act sections personally effected the applicant.
Despite the finding of a lack of standing, the Court proceeded to decide the issues before the Court on the merits as well. Justice Belobaba found that neither sections 267.5(1) nor 280 of the Insurance Act breached section 15(1) of the Charter. Section 15 (1) of the Charter protects individuals’ equality before the law. It prohibits discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability, along with any other analogous form of discrimination. The Insurance Act sections do not “single out” persons with disabilities, nor do they provide for discriminatory treatment. Justice Belobaba relied on Hernandez v. Palmer, where the Court found that the type or category of accident victim was not an enumerated or analogous ground protected by section 15 (1) of the Charter. In addressing the constitutionality of section 280 of the Insurance Act, Justice Belobaba relied on the Supreme Court of Canada’s decision in Nova Scotia (Workers’ Compensation Board) v. Martin, where it was held that the distinction between those who are able to enforce legal rights in the court system and those who are part of an administrative scheme is not a distinction based on disability.
Justice Belobaba found that neither sections 267.5(1) nor 280 of the Insurance Act breached section 7 of the Charter. In considering a Charter challenge under section 7, the Court must consider a two-step test:
1. whether the legislation deprived the person of life, liberty and security of the person, and
2. if there is a deprivation of life, liberty and security of the person, whether that deprivation is in accordance with the principle of fundamental justice.
It was found that the statutory limitation on the recovery of tort damages under section 267.5(1) of the Insurance Act did not deprive an accident victim of their right to life, liberty and security of the person. Justice Belobaba relied on the British Columbia Court of Appeal decision of Whitbread v. Walley, where the Court of Appeal considered sections of the federal Shipping Act, that limited recovery for personal injury damages. The British Columbia Court of Appeal found that tort claims are proprietary in nature and that the right to sue for damages was not protected under section 7 of the Charter.
Justice Belobaba found that the elimination of the right to sue in court under section 280 of the Insurance Act did not deprive an accident victim of their right to life, liberty and security of the person. Justice Belobaba relied on the Ontario Court of Appeal decision of Filip v. Waterloo, where a plaintiff argued that the notice requirements under section 284 of the Municipal Act interfered with a plaintiff’s right to sue the city and, thus, violated section 7 of the Charter. Again, the Ontario Court of Appeal found that section 7 of the Charter did not encompass the civil right to bring an action for the recovery of damages for personal injury.
Justice Belobaba found that section 280 of the Insurance Act did not violate section 96 of the Constitution Act, 1867. The Supreme Court of Canada Case of Re Amendments to the Residential Tenancies Act (Nova Scotia), held that new powers or jurisdiction, not within the power of the superior courts at the time of confederation, are not at the core of jurisdiction protected under section 96 of the Constitution Act, 1867. Where the resolution of a SABS dispute did not exist in 1867, Justice Belobaba found that section 280 of the Insurance Act did not violate section 96 of the Constitution Act, 1867. Further, Justice Belobaba found that the LAT is “necessarily incidental” to the Legislature’s broader policy goal of providing accident victims with speedy no-fault benefits and a quick and efficient dispute system. Justice Belobaba compared the LAT to the Supreme Court of Canada case of Sobeys Stores, where the Supreme Court found that the labour standards tribunal was necessarily incidental to the legislature’s broader policy goal of providing minimum standards of protection for non-unionized employees and a speedy system for dispute resolution.
Justice Belobaba’s decision does leave room for an accident victim to personally challenge the constitutionality of sections 267.5 (1) and 280 of the Insurance Act, however the precise case law applied by Justice Belobaba does seem to suggest that even if an accident victim can establish that they have standing to bring an application, the ultimate outcome of such an application would be the same – that the Insurance Act removal of the right to sue for accident benefits and the inability to claim in tort for pre-trial income loss at greater than 70% – will be found to be within the jurisdiction of the province to enact.
Meredith Harper is a member of the Appellate Advocacy, Loss Transfer and Priority, and Catastrophic Loss practice groups. If you have a question about this decision, the Insurance Act, or a similar file please contact Meredith.