The Divisional Court allowed an appeal of an interlocutory order for productions from the Licence Appeal Tribunal.
Facts:
The Appellant was catastrophically impaired as a result of a September 12, 2014 motor vehicle accident.
The Appellant submitted Expense Claims Forms regarding housekeeping services provided to him by Ms. Lucic, his housekeeper, from the date of the accident and ongoing. The Insurer refused to pay the expenses without proof from the Appellant that his housekeeper sustained an economic loss in providing housekeeping services to him.
The Appellant advised the Insurer, repeatedly, that he was advancing his housekeeping claim on the basis that Ms. Lucic provided the housekeeping services in the course of her employment, occupation, or profession in which she would ordinarily be engaged, but for the accident. The Insurer refused to accept this position and maintained the denial pending receipt of proof of Ms. Lucic’s economic loss.
The Appellant applied to the Licence Appeal Tribunal regarding the denied housekeeping benefits. The Insurer brought a motion for productions of Ms. Lucic’s personal and business records.
Applicable Law
Section 23 of the Statutory Accident Benefits Schedule – Effective September 1, 2020, O. Reg. 34/10 (the “SABS”), allows the Appellant to claim reasonable and necessary additional expenses incurred by him for such services to the extent he can demonstrate a substantial inability to perform housekeeping and home maintenance services tat he normally performed before the accident.
Section 3(7)(e) of the SABS defines what it means to have “incurred” the specified services:
3(7) For the purposes of this Regulation, …
(e) subject to subsection (8), an expense in respect of goods or services referred to in this Regulation is not incurred by an insured person unless, …
(iii) the person who provided the goods or services,
(A) did so in the course of the employment, occupation or profession in which he or she would ordinarily have been engaged, but for the accident, or
(B) sustained an economic loss as a result of providing the goods or services to the insured person;
The Motion
The productions motion was heard in writing. The Adjudicator proceeded on the basis that Ms. Lucic was the Appellant’s spouse and that the Appellant’s expense claim was asserted as the economic loss that Ms. Lucic suffered as the appellant’s spouse in providing housekeeping services to him. Both presumptions were incorrect. The Adjudicator ordered “the records related to the spouse’s earnings from her cleaning companies pre- and post-accident … (e.g., personal and corporate tax records)” but excluded the records related to her personal finances more generally.
The Appeal
The Appeal was advanced under s. 11(1) of the Licence Appeal Tribunal Act, S.O. 1999, c.12 Sched. G. Appeals relating to a matter under the Insurance Act, R.S.O. 1990, c. I.8 may be made on a question of law only. The standard of review on a question of law is correctness.
The issues on appeal were (1) whether the appeal was premature, and (2) if not, whether the Adjudicator erred at law in making the Order.
Issue #1 – Was the Appeal Premature?
No. It is a fundamental principle of our legal system that, absent exceptional circumstances, courts should not interfere with ongoing administrative processes, including an arbitration, until after they are completed or until available, effective remedies are exhausted.
However, the case law also provides that an interim order can be challenged if it is “fatally flawed”: see Taylor v. Aviva Canada Inc., 2018 ONSC 4472 at para. 19. In this case the Adjudicator made three errors of law. Collectively, these three errors of law render the Order “fatally flawed.”
Issue #2 – Did the Adjudicator Err at Law in Making the Order?
Yes. The Adjudicator made three errors of law in making the Order.
Issue #2a – Ms. Lucic was not the Appellant’s spouse
There was no evidence of any relationship between the Appellant and Ms. Lucic other than as paid housekeeper. In fact, there was evidence to the contrary in the Respondent’s motion.
It is an error of law to make a finding of a material fact where the finding is based solely on a complete absence of evidence: Johannson v. Saskatchewan Government Insurance, 2019 SKCA 52 at para. 25 which cites the following helpful passage of Klebuc C.J.S. from Murphy v Saskatchewan Government Insurance, 2008 SKCA 57, [2008] 7 WWR 401 at para. 5 thereof:
Since the right of appeal is confined to a question of law, neither the right of appeal nor the jurisdiction of the Court extends to a finding of fact. However, a finding of fact may be grounded in an error of law, as will be the case, for example, when a finding: (a) is based on no evidence; (b) is made on the basis of irrelevant evidence or in disregard of relevant evidence; or, (c) is based on an irrational inference of fact. See: P.S.S. Professional Salon Services Inc. v. Saskatchewan Human Rights Commission et al., 2007 SKCA 149, (2007), 302 Sask. R. 161 at paras. 60–65 (application for leave to appeal to S.C.C. filed February 13, 2008). The right of appeal, of course, extends to such errors of law.
Issue #2b – It was an error in law to require the appellant to provide evidence of economic loss when the Appellant was not asserting such a claim under s. 3(7)(e)(iii)B of the SABS
The Appellant consistently asserted his position that he was claiming housekeeping expenses under s. 3(7)(e)(iii)A of the SABS, not s. 3(7)(e)(iii)B. The Adjudicator had the correspondence confirming this position. The Appellant’s and Respondent’s Notice of Motion also confirmed this position. The correspondence and statement should have been determinative for the Adjudicator. This error of law can be expressed in a number of different ways:
- To the extent that the Adjudicator’s finding of relevance involved a finding of fact or mixed fact and law, the Adjudicator clearly disregarded the evidence before him that the Appellant was not claiming payment of the housekeeping expenses on the basis of economic loss. As discussed in Murphy, a finding of fact made in complete disregard of the evidence constitutes an error of law. In this case, the evidence of the Appellant’s claim was unequivocal. The Adjudicator disregarded that evidence.
- The Adjudicator misdirected himself by looking at the wrong provision of the SABS s.3(7)(e)(iii)(B) rather than s.3(7)(e)(iii)(A). In the further alternative, the error of law can be expressed as the application of an erroneous interpretation of s. 23 of the SABS require compliance with both s.3(7)(e)(iii)(B) and s.3(7)(e)(iii)(A) in order to qualify for payment of housekeeping expenses. Interpreting the requirements in paragraphs (A) and (B) of s.3(7)(e)(iii) to be conjunctive when the language of that provision is unequivocally disjunctive is a clear error of law.
- The Adjudicator erred at law in ordering production of personal and financial documentation of a third party in circumstances in which the Appellant had no control over, or possession of, the records and, accordingly, no ability to compel the third party to provide them.
The Adjudicator should have been alert to the issue of the Appellant’s ability to satisfy the Order given that Ms. Lucic was a third party to the situation.
Conclusion
The present circumstances justified the Divisional Court’s interference.
First, the Order was “fatally flawed”, as described above. Second, the Order requires the Appellant to provide personal and financial documents of a third party. The Appellant has no legal means of compelling Ms. Lucic to provide him with this documentation. Ms. Lucic’s failure to provide that documentation would significantly prejudice, if not wholly exclude, a determination of his claim.
Furthermore, the Insurer has already denied payment of the expenses claimed for failure to produce the demanded tax returns and related documentation of Ms. Lucic and her housekeeping business. The Insurer has taken the position that the housekeeping expenses are not payable until it receives the requested documentation. The Appellant should not have to wait for a refusal from Ms. Lucic. Given the Insurer’s position, it can also be reasonably assumed that, if the Order were to stand, the Insurer would seek a further Order staying the Appellant’s claim for housekeeping expenses, pending production of the documentation from Ms. Lucic.
Both the denial of payment of the claimed expenses and any such stay order based on non-production would be grossly unfair to the Appellant.
The appeal was granted and the Order was set aside.
