Author Archives: Admin4

[1]              The applicant, Joseph Campisi, challenges the constitutionality of two automobile accident provisions in the Insurance Act[1]: s. 267.5(1) which limits the pre-trial recovery of lost income to 70 per cent of gross income[2] and s. 280 which grants sole jurisdiction to the Licence Appeal Tribunal (“LAT”) to resolve Statutory Accident Benefits Schedule (“SABS”) disputes, subject only to appeals on questions of law or applications for judicial review.[3]

[2]              Mr. Campisi says that the impugned provisions violate ss. 15 and 7 of the Charter of Rights[4] and further, that giving comprehensive jurisdiction to LAT to decide SABS disputes and eliminating the parallel court option violates s. 96 of the Constitution Act, 1867.[5]

Decision

[6]              For the reasons that follow, the application is dismissed. The application fails because Mr. Campisi has no standing to bring this proceeding. The application also fails on the merits. Neither ss. 267.5(1) nor 280 of the Insurance Act breaches ss. 15(1) or 7 of theCharter; nor is LAT’s dispute resolution jurisdiction in violation of s. 96 of the Constitution Act, 1867. I will explain each of these points in turn.

[9]              Mr. Campisi also lacks public interest standing. As the Supreme Court made clear in Downtown Eastside[12] public interest standing may be granted in the court’s discretion if the following three prerequisites, in combination, are satisfied:

(i)                 There is a serious justiciable issue raised;

(ii)               The applicant has a real stake or a genuine interest in the issue; and

(iii)            In all the circumstances, the proposed application is a reasonable and effective way to bring the issue before the courts.[13]

[10]         Mr. Campisi does not satisfy the second prerequisite. He has not demonstrated that he has a real stake or genuine interest in the constitutional validity of the two provisions in question.[14] As already noted, Mr. Campisi did not file his own affidavit. And no court has ever granted public interest standing to an applicant in the absence of any direct evidence that he or she has a “genuine interest” in the case.

[11]         Mr. Campisi also fails to satisfy the third prerequisite. I am not persuaded that in all the circumstances, the proposed application is a reasonable and effective way to bring these constitutional issues before the courts. In my view, there are other reasonable and effective ways to bring these issues before the courts.

[13]         The same can be said about s. 280 and the SABS disputes before LAT. Here as well, there are literally thousands of claimants who are actually and directly affected by this legislation. These claimants do not even have to bring an application in Superior Court. They can challenge the constitutionality of s. 280 in their submissions to LAT. Indeed, the case law makes clear that raising the constitutional issue before the very tribunal that is resolving the dispute is the preferred route because then the reviewing court has the full benefit of the tribunal’s reasons for decision as well as a “rich, fully developed record in hand.”[17]

Conclusion

[56]         I therefore conclude as follows. The applicant, Mr. Campisi, lacks both private and public interest standing to bring this application.

[57]          Even if this court in its discretion had granted public interest standing, the application would have failed on the merits. Neither ss. 267.5(1) nor 280 of the Insurance Act are in breach ss. 15 or 7 of the Charter or s. 96 of the Constitution Act, 1867.

[6]                              The trial judge further found that the appellant’s mental injury was aggravated by the third (September 17, 2005) accident. Applying the principle from Bradley v. Groves, 2010 BCCA 361, 326 D.L.R. (4th) 732, he found that the mental injury originally caused by the accident was indivisible from any injury caused by that later accident. Having regard to the appellant’s personality change, his loss of close personal relationships with family and friends, his age, and the period involved, the trial judge awarded him $100,000 for non-pecuniary damage. The claim for past income loss was dismissed.

[1]               In 2016, the legislature transferred jurisdiction under the Insurance Act dealing with statutory accident benefits to the Licence Appeal Tribunal. Counsel for the Tribunal confirms that there is another case before the Divisional Court in which an unopposed order was made that the Tribunal would participate on the issue of standard of review but this appears to be the first judicial review application that has reached this stage since the Licence Appeal Tribunal acquired the jurisdiction.

[2]               In this Application for Judicial Review, counsel for the applicant has brought this motion for an immediate order of prohibition under s. 4 of the Judicial Review Procedures Act (the “JRPA”) staying the Licence Appeal Tribunal proceeding number 16-00364/AABS pending judicial review of two decisions of the Licence Appeal Tribunal in which Aviva’s requests to adjourn a hearing on the determination of a legal issue were denied.  For the reasons that follow, the motion is dismissed.

[16]           As indicated during submissions, I consider that the content of the identical letters dated March 8 and March 10 is “odd”.  Neither has a signature.  There is no indication what is meant by “the Tribunal”. Is it the Executive Chair?  Is it the adjudicator who conducted the case conference on January 30?   Is it the adjudicator assigned to the in-writing hearing on March 15?  Is it someone else?  Is it the Case Management Officer? There is no indication as to why the adjournment was not granted except that the detailed reasons contained in the two written requests were “insufficient”.  By making this observation about oddness, I am mindful that the need for and sufficiency of reasons is a relative issue and I do not hold that reasons were necessarily required.

[17]           I deal first with the motion to stay.  Counsel argues that it is a serious issue that Aviva was denied the right to know why the adjournment was refused, and because the adjournment was refused, Aviva argues that it was denied the right to know the case it is required to meet in the in-writing proceeding.

[18]           Counsel argues that Aviva will suffer irreparable harm because if the stay is not granted until the judicial review is heard, the Tribunal will not have the comprehensive record it should have in order to make the important threshold decision as to whether Mr. Taylor was involved in an “automobile accident” and is therefore entitled to accident benefits. Without the adjournment and the cross-examination, counsel argues that the Tribunal will not be able to make an informed decision on an important coverage issue, the consequences of which could require Aviva to pay millions of dollars. Counsel also argues that the balance of convenience favours Aviva because, if ordered to resume making significant payments, those payments will likely not be recoverable should an appeal be successful.