Dismissal of constitutional Challenge to the LAT and restrictions on pre-trial MVA income loss.
Released May 31, 2017 | Full Decision [CanLII]
This application was a constitutional challenge to two automobile accident sections in the Insurance Act. The Applicant challenged s. 267.5(1) which limits the pre-trial recovery of lost income to 70 per cent of gross income, and s. 280, which grants sole jurisdiction to the Licence Appeal Tribunal (“LAT”) to resolve Statutory Accident Benefits Schedule (“SABS”) disputes, subject only to appeals on questions of law or applications for judicial review.
The Applicant, through his counsel, argued that s. 267.5(1) and s. 280 violate ss. 15 (1) and 7 of the Charter of Rights and Freedoms (“Charter”). He also argued that giving comprehensive jurisdiction to the LAT to decide SABS disputes and eliminating the ability of people to sue in the Superior Court over SABS disputes violates s. 96 of the Constitution Act, 1867.
Mr. Justice Belobaba dismissed the application. He held that the application failed because the Applicant did not have standing to bring the application. He also held that neither of the provisions breaches s. 15(1) or 7 of the Charter and that the LAT’s dispute resolution jurisdiction did not violate s. 96 of the Constitution Act, 1867.
Standing
The Applicant is a personal injury lawyer. Mr. Justice Belobaba held that he did not have private interest standing because he had not been injured in an auto accident; he had not made a claim for lost income and he was not disputing a SABS denial before the LAT. The Judge held that the Applicant did not meet the applicable test for private interest standing because he didn’t have a real stake or genuine interest in the issue and because the proposed application was not a reasonable and effective way to bring this constitutional challenge before the courts.
Section 15(1) of the Charter
The Judge held that neither of the impugned sections breached s. 15(1) of the Charter because they do not create a distinction on the basis of race, national or ethnic origin, colour, religion, sex, age or mental or physical disability. He held that there was nothing in either section that singles out persons with disabilities for discriminatory treatment.
Section 7 of the Charter
Mr. Justice Belobaba held that the case law is clear that neither a statutory limitation on tort damages nor the elimination of a court option deprives an accident victim of his or her right to life, liberty or security of the person. He cited an Ontario Court of Appeal case (Rogers v Faught, 2002 CanLII 19268 (ON CA)) that held that a civil action is economic and proprietary in nature and as such outside the range of interests protected by section 7 of the Charter.
Section 96 of the Constitution Act, 1867
Section 96 of the Constitution Act, 1867 provides that certain areas of the law that were in the exclusive jurisdiction of the Superior, District and County courts at the time of Confederation can never be removed from that jurisdiction. Mr. Justice Belobaba held that the test set out by the Supreme Court of Canada in Residential Tenancies, 1981 CanLII 24 (SCC) was not met in this application. The Judge held that statutorily prescribed no-fault accident benefits did not exist in 1867 because neither automobiles nor automobile insurance existed at that time. Therefore, the Judge held that SABS disputes were “novel jurisdiction” that was not within the jurisdiction of the Superior, District and County courts at the time of Confederation.
The Judge also held that the s. 96 challenge also failed at the third step of the Residential Tenancies test – whether the resolution of SABS disputes by LAT is “necessarily incidental” to the achievement of a broader policy goal. He held that the resolution of SABS disputes by the LAT is necessarily incidental to the broad policy goals that led the provincial legislature to establish threshold no-fault automobile insurance in the first place.
Justice Belobaba also held that unwritten constitutional principles, including the rule of law, did not help the Applicant succeed in striking down the impugned sections of the Insurance Act.
The application was dismissed with the issue of costs to be determined after written submissions.
Read the full decision on CanLII
Counsel for the Applicant: Peter Murray and Rocco Galati for the Applicant
Counsel for the Respondent Attorney General of Ontario: Daniel Guttman and Padraic Ryan
Counsel for the Respondent Insurance Bureau of Canada: Jeff Galway and John Mather
