Volume. 7 Issue. 38 – October 18, 2023
This week, an in depth review of the Court commentary regarding the Applicant’s contention that the Tribunal had the jurisdiction to grant the equitable remedy of relief from forfeiture. Ultimately however, the Court determined that such a ruling was unnecessary, in that there was instead the potential for Statutory Relief, a concept that the Tribunal had in error thought not to be within its jurisdiction.
We then also touch briefly on a somewhat similar fact situation, wherein the Tribunal reaffirmed that it did not have jurisdiction to grant equitable remedies, although in this matter there was no consideration of the remedy that the Court found available to the Tribunal.
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Statutory Relief Within Tribunal’s Jurisdiction
Statutory Relief v. Equitable Remedy – The court in Akinyimide v Economical, considered the application before the Tribunal in which the Akinyimide was denied benefits based upon having committed a material misrepresentation regarding her residence address. The Tribunal, at first instance and upon reconsideration, upheld the decision by Economical to deny benefits.
The Tribunal “refused to apply s. 131 of the Insurance Act, R.S.O. 1990, c. I.8, (the “Act”) holding that the LAT has no jurisdiction to award equitable remedies. Section 131 provides, in material part:
131 (1) The obligation of an insured to comply with a requirement under a contract is excused to the extent that, …
(b) the insurer’s conduct reasonably causes the insured to believe that the insured’s compliance with the requirement is excused in whole or in part, and the insured acts on that belief to the insured’s detriment.
No Jurisdiction For Equitable Remedies
In the preliminary decision, “the LAT rejected the appellant’s argument that Economical had “waived a right and is estopped from denying the IRB because the respondent increased her premium after the applicant notified it of her address change and charged her a higher premium retroactive to July 31, 2017.” (para. 46) Although it referred to s. 131 of the Act, the LAT cited other LAT decisions which held that the LAT “derives its powers by statute” and “lacks the jurisdiction to award equitable remedies” and therefore it could not apply the doctrines of waiver and estoppel.”
On reconsideration, the Tribunal further confirmed that “the SABS is a “complete code for resolving disputes between insurers and insureds” (para. 30). The LAT then repeated its earlier finding that it had no jurisdiction to award equitable remedies. It made no mention, however, of s. 131 of the Act.”
Error in Law -Failure to Consider s.131 of the Act
The Court found that the Tribunal “erred in law in finding that it could not apply s. 131 of the Act. Section 131 codifies in legislation what are otherwise equitable remedies. The issue, therefore, is not whether judge-made equitable relief can be awarded by the LAT, but whether the LAT can apply s. 131 of the Act, which is statutory relief”. Accordingly, the “analysis in the Preliminary Decision, which focused on whether the LAT had jurisdiction to award equitable relief, therefore, does not address the right question and the LAT erred in law in finding that, because it does not have jurisdiction to award equitable remedies, it could not apply s. 131.”
A Second Error of Law
The Court suggested that the reconsideration “implicitly recognizes the weakness of the analysis in the Preliminary Decision and gives an alternative justification, asserting that the SABS is a “complete code” preventing the LAT from applying s. 131 of the Act. relying on s. 280(4) of the Act, which states that disputes over entitlement to IRBs “shall be resolved in accordance with the Statutory Accident Benefits Schedule.” But this too is an error of law by the LAT.”
Consumer Protection
The Court further commented that “Section 280 of the Act does not oust consideration by the LAT of other sections of the Act. Subsections 280(1) and (2) grant broad jurisdiction to the LAT to “resolve a dispute” “in respect of an insured person’s entitlement to statutory accident benefits.” There is nothing in section 280 that prevents the LAT from considering other sections of the Act, so long as the LAT’s decision is “in accordance with” the SABS.” In this regard, s.131 “provides protection to consumers which, in the absence of clear direction to the contrary, can and should be invoked by the LAT in appropriate circumstances.”
The Purpose of s.131
In addition, “if the LAT cannot apply s. 131, the purpose of the section is unclear. It is assumed that the legislature does not pass laws that have no purpose…The courts do not require s. 131, as they have equitable jurisdiction, and if it is not able to be used by the LAT, then it appears that there is no need for it. Indeed, the finding of the LAT that it cannot award equitable relief appears to be precisely why s. 131 is in the Act – so that the same kind of relief can be applied by the LAT to protect insured persons in appropriate cases.”
Decision Set Aside – Back for Rehearing
The Court opted not to address whether the Tribunal had jurisdiction to apply equitable remedies, as the conclusion that s.131 can be applied renders this unnecessary. Concluding, “the decisions of the LAT are set aside. The appropriate remedy is to remit the matter back to the LAT for a new hearing by a different member of the Tribunal.” Costs in the amount of $5,000 were payable to Akinyimide.
No Equitable Remedy?
In a somewhat related matter, 22-014027 v Pafco Insurance, the Tribunal held that there was no jurisdiction to grant relief from forfeiture. Specifically, “section 280(4) requires this Tribunal to resolve such disputes in accordance with the Schedule. The Schedule does not provide for equitable remedies such as relief from forfeiture.” Section 129 of the Insurance Act was not “available for me to use as an adjudicator at the Tribunal. Section 129 uses the word “court”. The Tribunal is not a court. I interpret this to mean that the legislature did not intend for section 129 to be available to the Tribunal as court is explicitly noted while Tribunal is not.” Reference was made to an earlier decision, with which the Tribunal herein did not agree, where there was a determination that the Tribunal indeed had access to grant relief from forfeiture.
Missing however from this decision, dealing with payment of IRB prior to the submission of the Disability Certificate (OCF3), was the matter raised by the Court, regarding the applicability of s. 131 of the Act in potentially granting Statutory relief. Were the Applicant to appeal this to the Court, this matter too may well be referred back to the Tribunal for a consideration regarding same.
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