The Licence Appeal Tribunal Isn’t Unconstitutional

June 6, 2017 | Michael Prosia

The Licence Appeal Tribunal isn’t going anywhere.

In 2014, the Ontario government passed the Fighting Fraud and Reducing Automobile Insurance Rates Act.  Prior to this legislation, accident benefits claimants could contest a denial of benefits by filing an Application for Arbitration with the Financial Services Commission of Ontario, or commencing an action in the Superior Court.  However, by virtue of this legislation, claimants lost this election as of April 1, 2016.  Now claimants are required to bring their claims through the Licence Appeal Tribunal, and are prohibited from commencing an action in the Superior Court.

Joseph Campisi, a personal injury lawyer, claimed that this change was in violation of s. 96 of the Constitution Act, 1867, and in violation of both s. 7 and s. 15 of the Canadian Charter of Rights and Freedoms.  He commenced an Application against Her Majesty in Right of Ontario seeking a declaration of its unconstitutionality.  Justice Belobaba rejected Campisi’s arguments, with reasons reported in Campisi v. Ontario, 2017 ONSC 2884.

Significantly, Justice Belobaba concluded that as a lawyer, and not a personal injury victim himself, Campisi lacked standing to bring the Application.  Despite finding that Campisi did not have standing, Justice Belobaba addressed each of Campisi’s arguments on their merits.

The most interesting of the arguments was Campisi’s position that the amendment was in violation of s. 96 of the Constitution Act, 1867.  Because accident benefits disputes are contractual disputes, and would have been within the jurisdiction of the Superior Court at the time of Confederation, it was argued that the legislature could not confer exclusive jurisdiction of these disputes on an administrative tribunal.  Justice Belobaba found this position disingenuous:

 [45]          Here the dispute that is being resolved by LAT is not simply “a contractual dispute” of the type that ordinarily fell within the jurisdiction of superior courts at the time of Confederation. To characterize SABS disputes as ordinary contractual disputes that existed in 1867 – as the applicant tries to do – is not only overly broad but, frankly, disingenuous. To begin with, modern-day insurance policies are not ordinary, freely negotiated contracts. They are “statutory contracts” that do not reflect the words of the parties but “the words of the statute or of the regulation.”[42] However, I need not dwell on this point.

[46]         There is a more obvious point that in my view is determinative.

[47]         The disputes that LAT is resolving are disputes about the availability of statutorily prescribed no-fault accident benefits. This is a novel power or jurisdiction that did not exist in 1867 because neither automobiles nor automobile insurance existed in 1867. And certainly not statutorily prescribed no-fault automobile accident benefits.

Justice Belobaba also soundly rejected Campisi’s Charter arguments, and it is clear from the decision that Justice Belobaba did not see this as a close case on any of the grounds advanced.  Justice Belobaba noted that Campisi had failed to establish that the change created a distinction based on a prohibited ground enumerated in s. 15, and that the right to security of the person under s. 7 is not violated by a law that restricts a person’s ability to access the courts to recover damages for personal injury claims.

The Licence Appeal Tribunal has limited authority to award costs to a successful party.  As such, the plaintiff personal injury bar has expressed concern over access to justice issues, with the prosecution of low value claims being considered cost prohibitive.  For this reason, it is hard to fault Campisi for attempting to challenge the legislation, which would have been a significant victory for the plaintiff injury bar had he been successful.

 

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