Volume. 6 Issue. 36 – September 14, 2022
‘You Knew There Was No Insurance’ involves the reconsideration of a decision where the Tribunal found it reasonable to conclude that the Applicant was unaware the motorcycle he was operating was uninsured. The Tribunal varied its original decision having found that the wrong test was applied.
In ‘Resolving a Conflict That Did Not Exist’ the Court weighs in on a situation wherein the Tribunal had been “surprised” that an issue regarding an apparent “ambiguity” in the Schedule had never been addressed, being a “genuine conflict in the Schedule as to whether EI sickness benefits can be deducted from an IRB”. Ultimately, the Court found for a fact that no such “ambiguity” existed.
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Applicant Well Aware He Had No Insurance
You Knew There Was No Insurance – Intact sought reconsideration of an earlier Tribunal decision, 19-009063 v Intact, in which the Applicant Vaillancourt was allowed to proceed with his claim for various benefits, as it had not been proven on a balance of probabilities that Vaillancourt knew or ought reasonably to have known that there was no liability coverage on his motorcycle on the day of the accident.
Intact submitted that the Tribunal applied an exclusively subjective test when considering the language of s. 31(1)(a)(i), when it should have applied an objective test. The Tribunal upon reconsideration agreed that there was an error of law in applying a subjective rather than an objective test to the analysis of s. 31(1)(a)(i).
Firstly, it was noted that in the original decision, the adjudicator stated, “Batoor makes it clear at paragraph 76 that the test to apply to the knowledge portion of s. 33(1)(a)(i) is subjective and not objective”. This was found to be in error, as in fact Batoor set out the test to be “when there is no direct evidence of the knowledge of the Applicant as to the insurance coverage on the vehicle, the test in s. 31(1)(a)(i) of the Schedule becomes an objective test”. Further, Batoor goes on to confirm that “in the absence of direct evidence, the decision-maker “must therefore assess what an ordinary rational person, of the age, and background of the Applicant, in the circumstances he encountered that day, ought reasonably to have known about the insurance coverage on the motorcycle”.
Therefore, based upon this faulty premise, the adjudicator then carried out a detailed subjective analysis as to what Vaillancourt knew or believed regarding the existence of liability insurance, and the subjective reasonableness of his knowledge and beliefs. It was then concluded to be reasonable that Vaillancourt was unaware he was operating the motorcycle without liability insurance. It was noted that in this analysis, “the Tribunal did not make reference to what an ordinary rational person, of the age, and background of the applicant, in the circumstances he encountered that day, ought reasonably to have known about the insurance coverage on the motorcycle. This is the analysis that is required for consideration of s.31(1)(a)(i).”
As a result, it was determined that had the Tribunal “applied the objective test required by s. 31(1)(a)(i), it would likely have resulted in a different outcome.” Had the correct test been applied “it would have found that an ordinary, rational person of the age and background of the applicant, in the circumstances he encountered the day of his accident, ought reasonably to have known that the motorcycle he was operating on July 26, 2017 was not insured under a motor vehicle liability policy.”
Amongst the factors relied upon, it was noted that Vaillancourt, in his profession as both a paramedic and dispatcher of emergency helicopters “would have been required to review and understand complex documentation and gather critical information in life and death situations.”
Additionally, he had experience obtaining insurance and adjusting coverage as required. He “paid no insurance premiums for his motorcycle, while continuing to pay premiums for his other vehicle.” He also “knew enough about his insurance coverage to request an adjustment in coverage when he put the motorcycle into storage, but he did not adjust it when he took it out of storage and drove it on the date of the accident.”
Therefore, the “Tribunal’s Decision is varied to find the applicant’s claim is subject to the exclusion in s. 31(1)(a)(i) of the Schedule.”
Court Finds Tribunal Resolved a Conflict of Its Own Making
Resolving a Conflict That Did Not Exist – In Spence v. Aviva, Aviva sought judicial appeal of a Tribunal decision (upheld upon Reconsideration) that EI sickness benefits were not deductible from Spence’s weekly IRB entitlement. The Court ultimately allowed the appeal and set aside the adjudicator’s decision, finding that “the adjudicator erred by introducing a distinction between sickness benefits and other benefits paid under the EIA (collectively, “EI benefits”) that was not called for by either the text, context, scheme, or purpose of the Schedule, thereby creating disharmony where none existed before.”
The Court framed the appeal as determining “whether EI sickness benefits received after an accident must be included in gross employment income under s. 4(1) and therefore deducted from the IRB otherwise payable at the rate of 70 per cent under s. 7(3)(a) of the Schedule.”
The first of three errors by the Tribunal was “in finding ambiguity in the Schedule as it relates to the treatment of EI benefits. As Aviva correctly submits, there is no such ambiguity.” It was noted that EI benefits were referred to in four places in the Schedule, all of which “operate to treat all EI benefits as income, regardless of whether they were being received before the accident, and to treat all EI benefits similarly, regardless of the reason for which the benefits are being paid.”
It was further noted that the adjudicator had found it “unhelpful that the Legislature had not parsed out the different types of EI benefits under the Schedule.” To this, the Court indicated “the fact that they were not parsed out ought to have indicated to the adjudicator the Legislature’s intention not to treat them any differently… it would have been a simple matter to do so, had that been the intent.”
The second error of the Tribunal was in finding that only income from active employment was deductible from IRB. The Tribunal however has affirmed that one need not be engaged in active employment for income to be considered as gross employment income. Deciding as it did was said to having had the effect of overcompensating Spence. The Court did not agree with Spence’s answer that any such overcompensation might be adjusted by the Commission under the EIA, “given the degree to which the adjudicator’s decision interfered with the purpose of the Schedule”. The payment of an EI benefit was noted to involve at least two prerequisites, with all having one in common, “the fact that they are paid “as a result of being employed”, just as the name of the EIA suggests.”
Finally, the Court found that the Tribunal erred in finding the EI benefits paid qualified as a “temporary disability benefit”. For this to be the case, said benefits would need to be “in respect of an impairment that occurred before the accident”, whereas in the within matter the EI was being paid in connection with the very accident for which IRB was received. Therefore, it “was not open to the adjudicator to find that the sickness benefits being paid to Ms. Spence qualified as temporary disability benefits and, therefore, there was no possibility of a conflict in the way in which they were treated under the Schedule.”
As a result of these three errors, the Court allowed the appeal and the original decision was set aside. As agreed, there were no costs payable.
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