*Since the writing of this blog the tribunal made errors in law or fact, cancelled the decision and allowed the matter to be reheard, however, the matter was never reheard.

J.T. and Aviva Canada Inc., 16-003674/AABS, July 14, 2017, Adjudicator Rebecca Hines

An earlier blog post detailed the efforts of Aviva Canada Inc. to seek a stay of proceeding pending a Judicial Review of an interlocutory decision of the License Appeal Tribunal. The stay was denied, and Aviva was encouraged by the Court to await the determination of the LAT on the larger issues.

On July 14, 2017, Adjudicator Hines released her decision. Three issues were to be addressed by the submissions:

  1. Was this an accident within the meaning of the Schedule?
  2. Who owned the ATV on the date of the incident?
  3. Was Aviva estopped from denying coverage to the Applicant under the Schedule?

The dispute involved an ATV operated on private property. The property had been sold with a closing date approximately one month after the date of the incident. J.T. had been visiting the property with his friend and the friend’s parents, G.E. and L.S., who were the purchasers of the property. The ATV was to be sold as a “chattel” to the property when the house sale closed. J.T. was injured when the ATV was involved in an incident on the property. J.T. sought coverage for accident benefits pursuant to his father’s policy.

On the date of the incident, G.E. and L.S. had attended at the property to make arrangements to store some items prior to the move, and to make payment for some of the chattels included in the sale.

At issue was whether or not G.E. and L.S. became occupiers of the property prior to the transfer of the property on closing, as well as whether they became owners of the ATV in question. As the ATV was operated on land owned/occupied by the registered ATV owner, an exclusion for coverage is found in section 15(9) of the Off Road Vehicles Act.

The Applicant sought a determination first that the ATV formed the definition of a ‘newly acquired vehicle’. The LAT confirmed that G.E. and L.S. were not the owners of the ATV, and thus, J.T. could not seek coverage under the newly acquired provisions of the policy. Adjudicator Hines reviewed the evidence submitted by way of Affidavit provided by the Applicant, which she did not find compelling to confirm that ownership had transferred from to G.E. and L.S.

Further, Adjudicator Hines had applied the requirements of the Sale of Goods Act, as put forth by Aviva, to demonstrate that the ownership of the ATV had not been transferred in accordance with same, and thus ownership rested with the registered owners of the property still. As well, she found that the ATV was not in a “deliverable state”, and therefore could not meet the requirements of section 8 of the Off Road Vehicles Act.

As R.H. and S.H. were the owners of the property where the incident occurred, and were found to be the owners of the ATV in question, then the ATV did not fall into any expanded definition of an “automobile” and thus, the incident could not qualify as an “accident” pursuant to the Schedule.

One of the most important findings of the LAT was that the doctrine of equitable relief is not available through the Tribunal.

The Applicant sought entitlement to benefits in the alternative on the basis that Aviva was estopped from denying same based on its prior conduct. Aviva had provided, on a good faith basis, benefits to J.T. while information was obtained regarding the specifics of the incident.

When it became apparent that the incident occurred on land owned/occupied by the owners of the ATV, Aviva properly advised J.T. that there was no coverage for accident benefits.

Adjudicator Hines confirmed that the Tribunal has no jurisdiction to grant equitable relief.

While the courts have jurisdiction to grant such a remedy, there is no statutory or intrinsic authority of a administrative tribunal to do so. As Adjudicator Hines stated, “the Tribunal, on the other hand, cannot simply step into the role of the courts and enjoy similar jurisdiction”.

Where an insured person no longer has access to the court to determine issues in dispute with respect to accident benefits, the doctrine of estoppel is no longer available as a remedy.

As such, it was determined that Aviva was not estopped from denying benefits on the basis that it had starting paying same.

If you have a question about this blog or a similar file, please contact Eric Grossman at 416-777-5222