



COURT OF APPEAL FOR ONTARIO

CITATION: Yang v.
    Co-operators General Insurance Company, 2022 ONCA 178

DATE: 20220302

DOCKET: C69292

Lauwers, Huscroft and Coroza JJ.A.

BETWEEN

Celia Yang

Plaintiff (Appellant)

and

Co-operators General Insurance Company, Vivian
    Poon, Mala Leidoux,
SCM Insurance Services Inc. (a.k.a. Cira Medical
    Services Inc.), Dr. Robert Brian Hines, Ranya Ghatas, SCM Insurance Services GP
    Inc., Cira Health Solutions LP, Dr. Abraham Orner (a.k.a. Dr. Avi Orner), Ariel
    Ang
and
SmartSimple Software Inc.

Defendants (
Respondents
)

Paul Bates, Peter Murray and Ashu Ismail, for the
    appellant

R. Lee Akazaki, for the respondents, SCM Insurance
    Services Inc. (a.k.a. Cira Medical Services Inc.), SCM Insurance Services GP
    Inc., Cira Health Solutions LP, Dr. Abraham Orner (a.k.a. Dr. Avi Orner), and
    Ariel Ang

P. Voula Kotoulas, for the respondent, Ranya Ghatas

Anne E. Posno and Kathleen Glowach, for the respondent,
    Dr. Robert Brian Hines

Daniel Freudman, for the respondent, SmartSimple
    Software Inc.

Heard: Thursday, January 27, 2022 by video conference

On appeal from the order of Justice Paul Perell of the Superior
    Court of Justice, dated March 1, 2021, with reasons reported at 2021 ONSC 1540.

REASONS FOR DECISION

[1]

The motion judge dismissed the appellants action because the Superior
    Court lacked jurisdiction over the subject matter. He also held that the
    appellants asserted causes of action had no chance of success and that her
    pleadings were so frivolous, scandalous, and vexatious that they should be
    struck without leave to amend under r. 25.11 of the
Rules of Civil Procedure
,
    R.R.O. 1990, Reg. 194.

[2]

The appellant appeals from this decision. She argues that the motion
    judge  erred in holding that the Superior Court lacked jurisdiction over the
    subject matter of her claim and that in striking her pleadings under both rr.
    21.01(1)(b) and 25.11.

[3]

We do not accept these arguments. The appeal is dismissed for the
    reasons that follow.

[4]

The motion judge made no error in interpreting and applying s. 280 of
    the
Insurance Act
, R.S.O. 1990, c. I.8, which grants the Licence
    Appeal Tribunal exclusive jurisdiction over disputes in respect of statutory
    accident benefits. To that extent, s. 280(3) also deprives the Superior Court
    of jurisdiction.

[5]

Although the statement of claim alleges many causes of action, as the
    motion judge noted the crux of the appellants complaints is a dispute about
    how her insurer (Co-operators) handled her claims under the
Statutory
    Accident Benefits Schedule
, being O. Reg. 34/10 under the
Insurance
    Act
. She alleges that her insurer coerced the respondent health care
    practitioners into staging multiple examinations under s. 44 of the
Schedule

and preparing false reports and that the other respondents were complicit
    in that conspiracy. As part of this conspiracy, she alleges that her insurer,
    the assessors, and SmartSimple Software Inc. breached her privacy and withheld or
    destroyed relevant documents.

[6]

The motion judge relied on this courts decision in
Stegenga v.
    Economical Mutual Insurance Co.
, 2019 ONCA 615, 147 O.R. (3d) 65, in which
    Zarnett J.A. held that s. 280 covers a wide array of disagreements connected in
    some way to statutory accident benefits, including disagreements about how the
    insurers obligations were or should have been performed.

[7]

At its core, the appellants statement of claim concerns the
    respondents alleged efforts to circumvent the
Schedule
. Framing the action
    as one in bribery, conspiracy, breach of privacy, breach of contract, or breach
    of fiduciary duty does not alter the substance of her claim:
Stegenga
,
    at paras. 54-61;
Mader v. South Easthope Mutual Insurance Company
,
    2014 ONCA 714, 123 O.R. (3d) 120.

[8]

Now that the appellant has settled with her insurer and its employees,
    she submits that s. 280 is not a bar to her claim because the Licence Appeal
    Tribunal is empowered only to adjudicate disputes between an insured and an
    insurer. The appellant relies on the language of s. 280, as well as
Dorman
    v. Economical Mutual Insurance Company
, 2021 ONCA 314, 155 O.R. (3d) 338,
    and
Lowe v. Guarantee Co. of North America
(2005), 80 O.R. (3d) 222 (C.A.).

[9]

We disagree. The claim in
Dorman

that this court held
    was not statute-barred by s. 280 was a class action for systemic negligence
    against the Financial Services Commission of Ontario (FSCO). The allegations
    against FSCO were that it had failed to investigate complaints against insurers
    and failed to enforce its own guidelines. In constrast, the appellants claims concern
    the way in which she was assessed for statutory accident benefits under s. 44
    of the
Schedule
. That is squarely within the Licence Appeal Tribunals
    mandate. The only damage pleaded attributable to the remaining defendants is
    that the appellant may have received fewer benefits than she was owed. As the
    motion judge noted, her physical injuries arise from the car accident, not the
    actions of the respondents. In the words of
Dorman
, this remains a
    case concerned with [
Schedule
] benefits and amounts: at para. 4. On
    the pleadings in this case, there is no need to revisit the interpretation of
    s. 280 thoroughly cavassed in
Stegenga
.

[10]

The
    appellant chose to settle with her insurer. The fact that she cannot now independently
    seek damages against each of the other parties does not oust the Tribunals
    jurisdiction over the subject matter of the claim:
Stegenga
, at para. 52.

[11]

Even
    if the action were not barred by s. 280 of the
Insurance Act
, the
    motion judges refusal to grant leave to the appellant to amend her pleadings is
    a discretionary decision entitled to deference:
Darmar Farms Inc. v.
    Syngenta Canada Inc.
, 2019 ONCA 789, 148 O.R. (3d) 115, at para. 30. We
    see no reason to interfere with his decision to deny leave.

[12]

In
    these circumstances, it is unnecessary to review the motion judges conclusions
    on each cause of action.

[13]

The
    appellant also appeals from the motion judges costs order. However, she has
    not sought leave to appeal costs, which is required when the main appeal is
    dismissed:
Courts of Justice Act
, R.S.O. 1990, c. C.43, s. 133(b). In
    any event, the appellant has failed to identify any error in principle that
    would justify interference with the motion judges costs order:
Hamilton v.
    Open Window Bakery Ltd.
, 2004 SCC 9, [2004] 1 S.C.R. 303.

[14]

The
    appeal is dismissed. The respondents are entitled to costs of this appeal in
    the following all-inclusive amounts:

a)

$15,000 to SCM Insurance Services Inc. (a.k.a. Cira Medical Services
    Inc.), SCM Insurance Services GP Inc., Cira Health Solutions LP, Dr. Abraham Orner
    (a.k.a. Dr. Avi Orner), and Ariel Ang;

b)

$10,000 to Dr. Robert Brian Hines;

c)

$7,000 to SmartSimple Software Inc.; and

d)

No costs to Ranya Ghatas.

P. Lauwers J.A.

Grant Huscroft J.A.

S. Coroza J.A.


