



COURT OF APPEAL FOR ONTARIO

CITATION: Dorman v. Economical Mutual
    Insurance Company, 2021 ONCA 314

DATE: 20210513

DOCKET: C68563 & C68566

Huscroft, Nordheimer and
    Harvison Young JJ.A.

DOCKET: C68563

BETWEEN

Bradley Dorman

Plaintiff (Respondent/

Respondent by way of
    cross-appeal)

and

Economical Mutual Insurance
    Company
,
Her Majesty the
    Queen in Right of Ontario, Philip Howell and Brian Mills

Defendants (
Appellants/Respondents by way of cross-appeal
/

Respondent/Appellant by way of
    cross-appeal
)

AND BETWEEN

Jeanette Mieyette

Plaintiff (Respondent)

and

Allstate Insurance Company of
    Canada
,
Her Majesty the Queen
    in Right of Ontario, Philip Howell and Brian Mills

Defendants (
Appellants
/
Respondent
)

AND BETWEEN

Shelli-Lynn Black

Plaintiff (Respondent)

and

Belair Insurance Company Inc.
    carrying on business as Belair Direct
,
Her Majesty the Queen in Right of Ontario, Philip Howell and
    Brian Mills

Defendants (
Appellants
/
Respondent
)

AND BETWEEN

Catherine Brooks

Plaintiff (Respondent)

and

Intact Financial Corporation
    c.o.b. Intact Insurance
,
Her
    Majesty the Queen in Right of Ontario, Philip Howell and Brian Mills

Defendants (
Appellants
/
Respondent
)

AND BETWEEN

William Elliott

Plaintiff (Respondent)

and

Aviva Insurance Company of
    Canada
,
Her Majesty the Queen
    in Right of Ontario, Philip Howell and Brian Mills

Defendants (
Appellants
/
Respondent
)

AND BETWEEN

Jill Nicholson

Plaintiff (Respondent)

and

Unifund Assurance Company
,
Her Majesty the Queen in Right of Ontario,
    Philip Howell and Brian Mills

Defendants (
Appellants
/

Respondent
)

AND BETWEEN

Fernanda Sampaio

Plaintiff (Respondent/

Respondent by way of
    cross-appeal)

and

Certas Home and Automobile
    Insurance Company
,
Her
    Majesty the Queen in Right of Ontario, Philip Howell and Brian Mills

Defendants (
Appellants/Respondents by way of cross-appeal
/

Respondent/Appellant by way of
    cross-appeal
)

AND BETWEEN

David MacLeod

Plaintiff (Respondent)

and

The Commonwealth Mutual
    Insurance Group
,
Her Majesty
    the Queen in Right of Ontario, Philip Howell and Brian Mills

Defendants (
Appellants
/
Respondent
)

AND BETWEEN

Madeleine Bonhomme

Plaintiff (Respondent)

and

Co-operators General
    Insurance Company
,
Her
    Majesty the Queen in Right of Ontario, Philip Howell and Brian Mills

Defendants (
Appellants
/
Respondent
)

AND BETWEEN

John Ross Robertson

Plaintiff (Respondent)

and

Echelon General Insurance
    Company
,
Her Majesty the
    Queen in Right of Ontario, Philip Howell and Brian Mills

Defendants (
Appellants
/
Respondent
)

AND BETWEEN

Mark Cicciarelli

Plaintiff (Respondent)

and

Wawanesa Mutual Insurance
    Company
,
Her Majesty the
    Queen in Right of Ontario, Philip Howell and Brian Mills

Defendants (
Appellants
/
Respondent
)

AND BETWEEN

Kristopher Baron

Plaintiff (Respondent)

and

St. Paul Fire and Marine
    Insurance Company, Travelers Insurance Company of Canada
,
Her Majesty the Queen in Right of Ontario,
    Philip Howell and Brian Mills

Defendants (
Appellants
/
Respondent
)

AND BETWEEN

Gary Gibbons

Plaintiff (Respondent)

and

TD Insurance
,
Her Majesty the Queen in Right of Ontario,
    Philip Howell and Brian Mills

Defendants (
Appellants
/
Respondent
)

AND BETWEEN

Brian Nagle

Plaintiff (Respondent)

and

Gore Mutual Insurance Company
,
Her Majesty the
  Queen in Right of Ontario, Philip Howell and Brian Mills

Defendants (
Appellants
/
Respondent
)

AND BETWEEN

David Sura

Plaintiff (Respondent)

and

CUMIS General Insurance
    Company
,
Her Majesty the
  Queen in Right of Ontario, Philip Howell and Brian Mills

Defendants (Appellants
/
Respondent)

DOCKET: C68566

AND BETWEEN

Bradley Dorman

Plaintiff (Appellant/

Respondent by way of
    cross-appeal)

and

Economical Mutual Insurance
    Company
,
Her Majesty the
    Queen in Right of Ontario, Philip Howell and Brian Mills

Defendants (
Respondent/Appellant by way of cross-appeal
/

Respondents/Respondents by way of
    cross-appeal
)

AND BETWEEN

Jeanette Mieyette

Plaintiff (Appellant/

Respondent by way of
    cross-appeal)

and

Allstate Insurance Company of
    Canada
,
Her Majesty the
    Queen in Right of Ontario, Philip Howell and Brian Mills

Defendants (
Respondent/Appellant by way of cross-appeal
/

Respondents/Respondents by way of
    cross-appeal
)

AND BETWEEN

Shelli-Lynn Black

Plaintiff (Appellant)

and

Belair Insurance Company Inc.
    carrying on business as Belair Direct
,
Her Majesty the Queen in Right of Ontario, Philip
    Howell and Brian Mills

Defendants (
Respondents
)

AND BETWEEN

Catherine Brooks

Plaintiff (Appellant)

and

Intact Financial Corporation
    c.o.b. Intact Insurance
,
Her Majesty the Queen in Right of Ontario, Philip Howell and Brian Mills

Defendants (
Respondents
)

AND BETWEEN

William Elliott

Plaintiff (Appellant/Respondent by way of cross-appeal)

and

Aviva Insurance Company of
    Canada
,
Her Majesty the Queen in Right of Ontario, Philip Howell and Brian Mills

Defendants (
Respondent/Appellant by way of cross-appeal
/

Respondents/Respondents by way of
    cross-appeal
)

AND BETWEEN

Jill Nicholson

Plaintiff (Appellant/
Respondent by way of cross-appeal)

and

Unifund Assurance Company
,
Her Majesty the Queen in Right of Ontario, Philip Howell and Brian Mills

Defendants (
Respondent/Appellant by way of cross-appeal
/

Respondents/Respondents by way of
    cross-appeal
)

AND BETWEEN

Fernanda Sampaio

Plaintiff (Appellant)

and

Certas Home and Automobile
    Insurance Company
,
Her Majesty the Queen in Right of Ontario, Philip Howell and Brian Mills

Defendants (
Respondents
)

AND BETWEEN

David MacLeod

Plaintiff (Appellant/
Respondent by way of cross-appeal)

and

The Commonwealth Mutual
    Insurance Group
,
Her Majesty the Queen in Right of Ontario, Philip Howell and Brian Mills

Defendants (
Respondent/Appellant by way of cross-appeal
/

Respondents/Respondents by way of
    cross-appeal
)

AND BETWEEN

Madeleine Bonhomme

Plaintiff (Appellant/
Respondent by way of cross-appeal)

and

Co-operators General Insurance
    Company
,
Her Majesty the Queen in Right of Ontario, Philip Howell and Brian Mills

Defendants (
Respondent/Appellant by way of cross-appeal
/

Respondents/Respondents by way of
    cross-appeal
)

AND BETWEEN

John Ross Robertson

Plaintiff (Appellant/
Respondent by way of cross-appeal)

and

Echelon General Insurance
    Company
,
Her Majesty the Queen in Right of Ontario, Philip Howell and Brian Mills

Defendants (
Respondent/Appellant by way of cross-appeal
/

Respondents/Respondents by way of
    cross-appeal
)

AND BETWEEN

Mark Cicciarelli

Plaintiff (Appellant/
Respondent by way of cross-appeal)

and

Wawanesa Mutual Insurance
    Company
,
Her Majesty the Queen in Right of Ontario, Philip Howell and Brian Mills

Defendants (
Respondent/Appellant by way of cross-appeal
/

Respondents/Respondents by way of
    cross-appeal
)

AND BETWEEN

Kristopher Baron

Plaintiff (Appellant)

and

St. Paul Fire and Marine
    Insurance Company, Travelers Insurance Company of Canada
,
Her Majesty the Queen in
    Right of Ontario, Philip Howell and Brian Mills

Defendants (
Respondents
)

AND BETWEEN

Gary Gibbons

Plaintiff (Appellant/
Respondent by way of cross-appeal)

and

TD Insurance
,
Her Majesty the Queen in Right of Ontario, Philip Howell and Brian Mills

Defendants (
Respondent/Appellant by way of cross-appeal
/

Respondents/Respondents by way of
    cross-appeal
)

AND BETWEEN

Brian Nagle

Plaintiff (Appellant/
Respondent by way of cross-appeal)

and

Gore Mutual Insurance Company
,
Her Majesty the Queen in Right of Ontario, Philip Howell and Brian Mills

Defendants (
Respondent/Appellant by way of cross-appeal
/

Respondents/
Respondents by way of
    cross-appeal
)

AND BETWEEN

David Sura

Plaintiff (Appellant/
Respondent by way of cross-appeal)

and

CUMIS General Insurance
    Company
,
Her Majesty the Queen in Right of Ontario, Philip Howell and Brian Mills

Defendants (
Respondent/Appellant by way of cross-appeal
/

Respondents/Respondents by way of
    cross-appeal
)

Glenn Frelick, Dona Salmon and Adam
    Mortimer, for the appellants/respondents by way of cross-appeal (C68563) and
    the respondents/respondents by way of cross-appeal (C68566)

Her Majesty the Queen in Right of Ontario,
    Philip Howell and Brian Mills

Ron Bohm, Paul Harte, Jay Ralston and Kevin
    Kemp, for the respondent/respondent by way of cross-appeal (C68563) and the
    appellant/respondent by way of cross-appeal (C68566) Bradley Dorman, and for
    the respondents (C68563) and the appellants/respondents by way of cross-appeal (C68566)
    Jeanette Mieyette, William Elliott, Jill Nicholson, David MacLeod, Madeleine
    Bonhomme, John Ross Robertson, Mark Cicciarelli, Gary Gibbons, Brian Nagle and
    David Sura, and for the respondents (C68563) and the appellants (C68566)
    Shelli-Lynn Black, Catherine Brooks and Kristopher Baron, and for the respondent/respondent
    by way of cross-appeal (C68563) and the appellant (C68566) Fernanda Sampaio

Mark Gelowitz, Laura Fric and Carla Breadon,
    for the respondent/appellant by way of cross-appeal (C68563 & C68566) Economical
    Mutual Insurance Company

Byron Shaw and Selina Mamo, for the
    respondents (C68563 & C68566) Intact Financial Insurance and Belair
    Insurance Company Inc.

Paul Martin, Sarah Armstrong and Daanish
    Samadmoten, for the respondents (C68563) and the respondents/appellants by way
    of cross-appeal (C68566) Aviva Insurance Company of Canada, Co-operators
    General Insurance Company, CUMIS General Insurance Company and Gore Mutual
    Insurance Company

Arthur Hamilton, for the respondent (C68563)
    and the respondent/appellant by way of cross-appeal (C68566) Wawanesa Mutual
    Insurance Company

Christine Lonsdale and Alison Bond, for the
    respondent/appellant by way of cross-appeal (C68563) and the respondent (C68566)
    Certas Home and Automobile Insurance Company

Belinda Bain, Scott Kugler and Heyla
    Vettyvel, for the respondent (C68563) and the respondent/appellant by way of
    cross-appeal (C68566) TD Insurance

Cheryl Woodin and Joseph Blinick, for the
    respondents (C68563 & C68566) St. Paul Fire and Marine Insurance Company of
    Canada and Travelers Insurance Company of Canada

Glenn Zacher, Alexandra Urbanski and Patrick
    OKelly,
for the respondents (C68563) and the respondents/appellants
    by way of cross-appeal
(C68566) Unifund Insurance Company and Allstate
    Insurance Company of Canada

Paul Tushinski and Gillian Eckler, for the
    respondent (C68563) and the respondent/appellant by way of cross-appeal (C68566)
    Commonwealth Mutual Insurance Company

Lisa Armstrong, for the respondent (C68563)
    and the respondent/appellant by way of cross-appeal (C68566) Echelon General
    Insurance Company

Heard: April 28, 2021 by video
    conference

On appeal from the orders of Justice Edward
    P. Belobaba of the Superior Court of Justice, dated July 10, 2020, with reasons
    reported at 2020 ONSC 4004, 151 O.R. (3d) 791, and from the costs order, dated
    September 2, 2020, with reasons reported at 2020 ONSC 4952, 8 C.C.L.I. (6th)
    184.

REASONS FOR DECISION

[1]

The plaintiff appellants filed proposed class actions
    against 15 auto insurers and the Financial Services Commission of Ontario
    (FSCO), the government entity that regulates the insurers, along with its
    current and former Superintendents. They alleged that the insurers had
    improperly reduced their statutory accident benefits (SABs) by deducting Harmonized
    Sales Tax (HST), and that the FSCO wrongfully failed to investigate the
    practices of the insurers after receiving complaints, and also failed to
    enforce its own guidelines on HST and SABs.

[2]

Two of the insurers, Belair and Intact, entered into
    tentative settlements with the plaintiff appellants who claimed against them.
    The settlements were conditional on the proceedings being certified as class
    proceedings and on court approval of the settlements.

[3]

The FSCO, and most of the respondent insurers,
    brought parallel motions under rr. 21.01(1)(a) and 21.01(3)(a) of the
Rules
    of Civil Procedure
, R.R.O. 1990, Reg. 194, seeking to stay or dismiss the
    proposed class actions on the basis that the Superior Court of Justice lacks
    jurisdiction. The plaintiff appellants, who had entered into tentative
    settlements with Belair and Intact, sought a determination that the court has
    jurisdiction to certify the proceedings as class proceedings and to approve the
    settlements.

[4]

The motion judge concluded that the Superior
    Court of Justices jurisdiction was ousted by s. 280 of the
Insurance Act
,
    R.S.O. 1990, c. I.8 and that the Licence Appeal Tribunal (LAT) has exclusive
    jurisdiction over the plaintiff appellants dispute against the insurers.
    Accordingly, he granted the motions to dismiss the proposed class actions and
    declined to approve the settlements with Belair and Intact. He dismissed the
    Crowns motions, finding that it was not plain and obvious that the proposed
    class actions against the FSCO were barred by s. 280 because the allegations
    were not concerned with SAB entitlements or amounts, but instead were concerned
    with the FSCOs misconduct.

[5]

The plaintiff appellants appeal from the dismissal
    of their claims and the refusal to approve the Belair and Intact settlements.
    The Crown appeals from the decision not to dismiss the claims against the FSCO.
    The respondent insurers seek leave to appeal the costs order made in their favour
    by the motion judge.

[6]

For the reasons that follow, the plaintiffs appeals
    (C68566) and the Crowns appeal (C68563) are dismissed. Leave to appeal the
    costs order is refused.

The plaintiffs appeals

[7]

We see no error in the motion judges analysis. Section
    280 of the
Insurance

Act
provides a clear answer to
    the plaintiff appellants claim. That section provides as follows:

280
(1) This section applies with respect to the resolution of disputes
    in respect of an insured persons entitlement to statutory accident benefits or
    in respect of the amount of statutory accident benefits to which an insured
    person is entitled.

(2) The insured person or the
    insurer may apply to the Licence Appeal Tribunal to resolve a dispute described
    in subsection (1).

(3) No person may bring a proceeding
    in any court with respect to a dispute described in subsection (1), other than
    an appeal from a decision of the Licence Appeal Tribunal or an application for
    judicial review.

[8]

As the motion judge noted, no court actions are
    permitted with respect to either disputes about entitlement to SABs or the
    amount of the SAB. The LAT has exclusive jurisdiction over such disputes. This
    was confirmed by this courts decision in
Stegenga v. Economical Mutual
    Insurance Company
, 2019
    ONCA 615, 147 O.R. (3d) 65, at paras. 21-22 and 53.
The
    plaintiff appellants cannot avoid this result with policy arguments that the
    exclusive jurisdiction of the LAT undermines the purpose of the Act or hinders access
    to justice. The Act is clear and must be given effect.

[9]

Nor does it avail the appellants that s. 280 does
    not specifically prohibit representative actions. The Act cannot be read as
    prohibiting only individual actions. Moreover, the
Class Proceedings Act
,
    1992
, S.O. 1992, c. 6 is procedural in nature and does not confer
    jurisdiction on the court that does not otherwise exist. Nor can it be said
    that a dispute about HST is not a dispute about the amount of the benefits to
    which a person is entitled. Finally, there is no scope for a judicial
    settlement approval jurisdiction. As the motion judge explained, settlements
    cannot be approved unless a proposed class action is certified, and
    certification is impossible because the action is barred by s. 280(3).

The Crowns appeal

[10]

Again, we see no error in the motion judges
    analysis. As he explained, the plaintiff appellants dispute with the FSCO
    concerns failures related to its duties. Although a finding of wrongful conduct
    is a predicate determination that must be made before the plaintiff appellants
    allegations can be established, this goes to the causes of action rather than
    the jurisdiction of the court over the claim. Nothing in s. 280 deprives the
    court of jurisdiction, over the tort claims alleged, in preference to the LAT.
    The LAT is concerned only with claims between insured persons and insurers.

Costs

[11]

Most of the respondent insurers seek leave to
    appeal the costs order. They sought over $600,000 in costs on the motion, but
    the motion judge awarded them $15,000 to be shared amongst them, as they deem appropriate,
    and awarded a further $1,000 to each insurer as costs of the action, for a
    total of $28,000.

[12]

The respondent insurers allege that the motion
    judge erred by ignoring and misapplying relevant factors, undervaluing the
    result of the motion and the importance of the issues at stake, pointing to the
    potential value of the plaintiff appellants claims. The motion judge is also said
    to have erred by considering irrelevant and improper factors.

[13]

We see no such errors. It is well-established
    that costs are within the discretion of the motion judge and should not be
    interfered with unless there is an error in principle, or they are plainly
    wrong. In this case, the motion judge was well familiar with the case, having
    case managed it throughout. It was open to him to conclude that this was a
    straightforward motion on a jurisdictional question and that the costs incurred
    were excessive in the circumstances. Although he may have put the matter
    bluntly, his conclusion reveals no error in principle and is entitled to
    deference.

[14]

In addition, motion judges have considerable
    experience with the appropriate quantum of costs for many different types of
    motions. They are therefore often able to establish a fair and reasonable
    amount to fix for costs without the need for lengthy submissions or a detailed
    review of the time spent, or the rates charged. The quantum of costs sought
    does not, by itself, require any different approach.

Disposition

[15]

The

plaintiffs appeals and the Crowns appeal
    are dismissed. Leave to appeal the costs order is refused.

Costs on the appeal

[16]

Economical, the lead respondent on the plaintiffs
    appeals, is entitled to its costs on the appeal, which are fixed at $10,000,
    all-inclusive.

[17]

The respondents Belair and Intact do not seek
    costs. No costs order is made in favour of the other respondent insurance
    companies.

[18]

The respondents on the Crowns appeal are
    entitled to costs in the net agreed amount of $4,500, all-inclusive.

Grant
    Huscroft J.A.

I.V.B.
    Nordheimer J.A.

A.
    Harvison Young J.A.


