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Campisi v Ontario, 2017 ONSC 2884 (CanLII)

[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.

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