The applicant was injured in an automobile accident and sought benefits pursuant to the SABS. At issue was catastrophic impairment determination and an award request.
The applicant also filed a Motion seeking the LAT’s answers to the following questions:
- Does the applicant’s claims against his insurer because of its actions taken as part of its adjustment of his claims for accident benefits fall within the interpretation of s. 280 of the Insurance Act such that the applicant must pursue his claim at the LAT instead of the courts?
- Does the applicant’s claims for damages against third parties retained by his insurer because of their actions taken to the benefit of his insurer as part of its adjustment of his claims for accident benefits fall within the interpretation of section 280 of the Insurance Act such that the applicant must pursue his claim at the LAT instead of the courts?
The applicant was attempting to add the tort of intrusion upon seclusion to the LAT proceeding and the insurer opposed the applicant’s addition of these claims to the dispute. In this case, the Insurer had allegedly subjected the Applicant to inappropriate surveillance techniques while assessing his claim for catastrophic impairment and an income replacement benefit. According to the Applicant, a special award claim could not capture this alleged misconduct.
The applicant submitted case law which established that all claims related to accident benefits must be heard by the Tribunal as the LAT, and as a result the LAT must have the ability to grant meaningful remedies. Here, the insurer allegedly subjected the applicant to inappropriate surveillance techniques while assessing his claim.
The applicant’s position was the tort of intrusion upon seclusion must be available through the Tribunal. By raising the principle that only express language can extinguish a common law power, the applicant asserted that torts were not displaced during the transfer of accident benefits disputes from the courts to the Tribunal. He relied on Stegenga v. Economical Insurance Company which makes it clear that the Tribunal’s jurisdiction over these disputes is “co-extensive” with the courts. Finally, the applicant highlighted the negative impact the surveillance had on his well-being and relied on two case management orders from the Tribunal where damages were allowed into the proceedings.
The insurer opposed the motion by submitting the Tribunal has already ruled on this point and highlighted that the LAT has different remedial powers from courts which exist to promote efficiency. Therefore, in line with ss. 280(4) and (6) of the Insurance Act, the Tribunal can only order a payment outside of the Statutory Accident Benefits Schedule if a separate regulation allows for it.
Adjudicator, Craig Mazerolle, found that unless specifically listed in the SABS or a related regulation, any of the common law powers afforded to the courts are not available to the Tribunal. As such, the applicant’s claims could not be added to this dispute.
Adjudicator Mazerolle rejected the applicant’s interpretation of Dorman as being used to challenge the need for a separate regulation to order payments outside of the SABS. Rather, he found that Dorman stands for the proposition that it does not matter how a dispute is defined or presented. If it involves accident benefits, it must go to the Tribunal.
Further, Adjudicator Mazerolle rejected the applicant’s interpretation of Wakeling, dismissing that the Court of Appeal “identified that such claims for bad faith are covered by section 280 of the Insurance Act and jurisdiction over same has been transferred from the Courts to this Tribunal.”
Taken together, the adjudicator found the Legislature’s intentions behind the interaction of ss. 280(4) and (6) are clear: the Tribunal may only order payments listed in the SABS or those in related regulations. There is no regulation adding the tort of intrusion upon seclusion, so the applicant’s proposed addition of these claims is not allowed.
Regarding the applicant’s other argument, that there is broad discretion afforded to the Tribunal under the LAT Act, specifically in s. 3(2), the adjudicator relied on Jarrett and rejected the applicant’s position. Here, the applicant is seeking to base a monetary claim on discretionary language, such an order would require disregarding one of the Legislature’s motives in passing s. 280, to limit payments ordered by the Tribunal to those in the Schedule and related regulations.
While the adjudicator accepted that there may be specific allegations and claims that do not fit within the rubric of awards and other forms of relief available at the Tribunal, overall, he was not satisfied that this public policy determination was for him to make. By denying the applicant from adding additional claims to their dispute, this ruling confirms that the legislature has the job of crafting appropriate remedies for the misconduct that applicants allege, while the Tribunal has the responsibility of applying these remedies to specific cases. Reversing these roles would require the Tribunal to step into the realm of public policy considerations, a task best left for legislators. Thus, the bottom line seems to be that there is a lacuna in the legislation, such that all claims for accident benefits can be disputed to the LAT, but any claims ancillary to an accident benefit claim, whether it be by reason of an IE provider, a private investigator or an adjuster, for which the insurer may otherwise be responsible must be pursued by an avenue outside the LAT’s current jurisdiction.
Please look out for our upcoming newsletter which will apply this decision to related privacy issues and their associated remedies.
Selina Ferenac is author of this blog and a summer student at the firm. If you have a question about this decision, please contact Selina or one of our Privacy Practice Group co-chairs, Jennifer Griffiths or Melinda Baxter.