Court Rejects Constitutional Challenge of LAT Barrier to Court Actions for SABS Disputes

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In an eagerly anticipated Superior Court decision, Justice Belobaba dismissed a personal injury lawyer’s constitutional challenge to sections 267.5(1) and 280 of the Insurance Act.

Section 267.5(1) limits the pre-trial recovery of lost income to 70 percent of gross income.

Section 280 provides that accident benefits disputes can only be resolved at the LAT.

The Applicant argued that these sections violated sections 7 (life, liberty and security of the person) and 15 (equal protection under the law, without discrimination based upon mental or physical disability) of the Charter. He further argued that the barrier to court access for SABS disputes violated s. 96 of the Constitution Act, 1867 (which set out the appointment of judges and limited the types of cases that could be decided by provincial agencies and tribunals).

Justice Belobaba efficiently dismissed every argument and found that the Applicant lacked standing to bring the challenge. He failed to prove a genuine private or public interest. He did not have his own injury claim, failed to provide evidence that his client(s) had such a claim and did not provide an affidavit in his own name. Instead, his law clerk provided an affidavit and answered in cross examination that the Applicant drives an automobile and “has a concern for the welfare of all accident victims.”

Justice Belobaba found:

There is little to no evidence about the impact or effect on accident victims of the pre-trial income recovery limitation in s. 267.5(1) and absolutely no evidence about s. 280 and the actual workings of the LAT dispute resolution system and its effects on actual claimants. The Supreme Court has made clear that “Charter decisions should not and must not be made in a vacuum” and that “the absence of a factual base … is fatal.”

In the alternative that he was wrong about the lack of standing, Justice Belobaba then went on to discuss the alleged breaches of the Charter and the Constitution Act, 1867, finding that:

1) The challenged sections did not create a distinction based upon a prohibited Charter ground (“neither of the impugned provisions discriminates between persons based on their physical disability”)

2) The cap on pre-trial income damages was a distinction based upon the cause of the injury (auto v. slip and fall, for example) and not the nature of the disability

3) The mandatory LAT system is not a distinction based upon disability as all persons were required to use the administrative scheme

4) There was no evidence of deprivation of life, liberty or security of the person – in any event, s. 7 of the Charter “does not embrace the right to bring an action for the recovery of damages for personal injury. A civil action is economic and proprietary in nature and as such outside the range of interests protected by s. 7”

5) If the power conferred on a tribunal does not conform to a power exercised exclusively by a Superior Court at the time of Confederation, “that is the end of the matter” and the jurisdiction of the tribunal will be sustained.

Perhaps the plaintiff bar will challenge the lack of costs at the LAT on an access to justice basis in an upcoming LAT proceeding with an injured claimant. Justice Belobaba appears to have poured cold water on that argument by saying that “unwritten constitutional principles, including the rule of law, may help in interpreting the text of the written constitution, but they do not provide an independent basis for striking down statutes”.

There is no word on any appeal. Given the standing findings, one is not expected.

Read the case at <>.

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