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Nov 1, 2018

Ont. C.A. Upholds Dismissal of Court Application Challenging LAT’s Jurisdiction over SABS disputes, agreeing Applicant lacked standing

Posted in Accident Benefits

Author Bevin Shores

Related Lawyer Sabina Arulampalam

In the Blawg-posted case of Campisi v Ontario (Attorney General), a challenge to the amended section 280 of the Insurance Act granting sole jurisdiction of the Licence Appeal Tribunal (LAT) over statutory accident benefits (SABS) disputes, the Ontario Court of Appeal has upheld the application judge's dismissal of the application for want of standing.

The earlier Blawg post, by Sabina Arulampalam, is pasted below.

On appeal, in Campisi v. Ontario (Attorney General), 2018 ONCA 869, the Court of Appeal agreed with the application judge that "the appellant, a lawyer, lacked private and public interest standing to bring the application" (para 2).

In succinct reasons, the Court explained that it saw no basis to interfere with the application judge's decision:

"[4]          In our view, the application judge correctly determined that private interest standing is not made out. The appellant failed to demonstrate that the impugned provisions affect him personally and directly. The appellant’s experience litigating insurance claims and his concern for properly advising his clients and for adequately settling their claims falls short of establishing that the provisions had a direct impact on him. As the application judge noted, the appellant has not been injured in an automobile accident, is not claiming for lost income, and is not disputing a statutory benefit entitlement before the administrative tribunal.

"[5]          Turning to the issue of public interest standing, the appellant argues, in effect, that the application judge considered each of the three factors in Canada (A.G.) v. Downtown Eastside Sex Workers, 2012 SCC 45, [2012] 2 S.C.R. 524, separately, requiring that each of the three be satisfied. In his submission, the application judge ignored the flexibility in the application of the test that the Supreme Court of Canada prescribes. We would not give effect to this submission.

"[6]          Although the application judge’s reasons could be read as suggesting that his analysis of each of the three factors was carried out separately and that he may have viewed them as prerequisites, in our view, this suggestion is not made out. The application judge correctly listed the three factors, namely whether the case raises a serious justiciable issue; whether the applicant has a real stake or a genuine interest in its outcome; and whether, in all the circumstances, the proposed application is a reasonable and effective way to bring the issue before the courts.

"[7]          Reading the reasons as a whole, it is apparent that the application judge considered the three factors in combination and with the flexibility required. We reject, therefore, the suggestion that he acted on the wrong principles or erred in law.

"[8]          Further, we do not consider that the appellant’s scholarly contributions regarding the Insurance Act exemplify a genuine interest in the outcome of the application. Moreover, the appellant, who has not filed an affidavit in his own name, has failed to establish that the application is a reasonable and effective way of bringing the case to court. Although his two affidavit witnesses may be unable to bring an action themselves, the appellant has not provided a compelling reason why an auto accident victim who is directly impacted by the impugned provisions could not challenge the legislation.

"[9]          The application judge’s discretionary decision is, in our view, entitled to deference and we see no reason to interfere."

Campisi v Ontario 2018ONCA0869

Sabina's note follows: 

In Campisi v. Ontario, the Ontario Superior Court of Justice dismissed a legal challenge brought by Ontario personal injury lawyer Joseph Campisi, affirming the legality of key provisions of the Insurance Act.

While this case has been gaining attention for its challenge to section 280 of the Insurance Act which provides for the sole jurisdiction of the Licence Appeal Tribunal (LAT) over statutory accident benefits (SABS) disputes, the Applicant also challenged section 267.5 (1), which limits the pre-trial recovery of damages for lost income to 70 per cent of gross income. 

As you will recall, in 2014, the provincial legislature adopted one of the key recommendations of the Cunningham Report, and amended s. 280 of the Insurance Act. Effective April 1, 2016, all SABS disputes would be resolved solely via the LAT, subject only to appeals on questions of law or applications for judicial review. The option to bring an Accident Benefits action in the Superior Court of Ontario was eliminated.

More specifically, Mr. Campisi’s application to the court alleged that the above-noted impugned sections of the Insurance Act infringe Sections 15(1) and 7 of the Charter and, further, contravenes Section 96 of the Constitution Act, 1867, which gives the federal courts jurisdiction over civil disputes that exceed $65,000 (in current dollars). 

In his decision, Justice Edward Belobaba concluded that Campisi lacked both private and public interest standing to bring this application to the court. Additionally, Justice Belobaba found that even if Campisi had appropriate standing to bring forward this case, he would still dismiss the application on its merits as s. 280 did not breach sections 15 or 7 of the Charter, or s.96 of the Constitution Act, 1867.

Justice Belobaba held that neither of the impugned sections draw distinctions based on a prohibited ground enumerated in s. 15(1) of the Charter, or on any other analogous ground. He noted that the fact that insured persons with SABS disputes may be physically disabled and are required to proceed via the LAT (with no recourse via the court system except as already noted), was not a distinction on the basis of disability. He drew on the principles articulated by the Supreme Court of Canada in Nova Scotia Workers’ Compensation Board v Martin, 2002 SCC 54 at para 72, and concluded that the distinction between those who are able to enforce legal rights in the court system, and those who are subject to an administrative scheme is not a distinction based on a disability. As such, Justice Belobaba found that Campisi’s s. 15(1) challenge to s.280 did not succeed.

Furthermore, Justice Belobaba noted that the pre-trial limitation on recovery of damages for income loss applies whether the accident victim is physically disabled or not, and regardless of severity of any injury. He indicated that the fact that auto accident victims are subject to this limitation while, for example, home accident victims are not, is not a distinction based on disability; rather, it is a distinction based on the cause or place of the injury, which is not a prohibited ground under the Charter.

With respect to the alleged breach of Section 7 of the Charter, Justice Belobaba found that Campisi filed insufficient evidence with respect to any alleged deprivation of life, liberty, or security of the person regarding the application or operation of the impugned sections. Furthermore, Justice Belobaba found that the case law was 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.

And, in respect of s. 96 of the Constitution Act, the applicant failed to meet two steps of the three-part test for determining when s. 96 of the Constitution Act, 1867 allows jurisdiction to be conferred on an administrative tribunal. In terms of the first step, His Honour noted that the type of dispute that the LAT is deciding did not exist in 1867. And because “new powers or jurisdiction are not part of the core of jurisdiction protected via s. 96 of the Constitution Act, 1867” this finding alone is “dispositive of the matter.” And, the s. 96 challenge also fails at the third step of the test: whether the resolution of SABS disputes by LAT is “necessarily incidental” to the achievement of a broader policy goal. His Honour stated: "In my view, it cannot be seriously contested that the resolution of SABS disputes by 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."

Campisi v. Ontario, 2017onsc2884



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Bevan Shores

Bevin Shores

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