Tammy Kirkwood submission to FSRA Draft Statement of Priorities 2019-007
I was pleased to see the FSRA was creating committees like SAC, Stakeholder Advisory Committee for Property & Casualty (P&C) Insurance, and CAP, Consumer Advisory Panel.
I applied for the SAC and looking forward to being an Advocate and consumer participant. It is unfortunate that the SAC committee’s only participants are from within the insurance industry. It seems odd and unfair that FAIR, Fair association of victims for Accident Insurance Reform, participated in the Working Groups with the other stakeholders for the Drivers Card and Assessment Form and yet isn’t included on this Committee.
There was a lot of information and ideas shared in the meetings over the summer months. Consumers had a voice and we thought that positive changes were going to be made to aid the insurance industry through the regulations and make it easier for consumers to maneuver the insurance process without it causing more trauma to accident victims.
I have reviewed the Draft F2020-21 FSRA Priorities and Budget and find that it is difficult to read and understand. It’s written in terms and wording that leaves many questions.
“• Develop new reporting and analytical tools to enable proactive regulatory monitoring and evidence-based policy decisions. FSRA will: • Report on the health of Ontario’s auto insurance system” How can you have a report on the health of the auto insurance scheme if you haven’t asked consumers whether it is working for them? Otherwise it is just a statement on how profitable or how happy insurers are isn’t it?
Consumers are definitely not being served and it shows in decisions like Tomec (see below) where it’s apparent insurers are not standing behind their product and contract of coverage or following the intent of the SABs.
“effectively penalize the appellant for accessing benefits she is statutorily entitled to”
OR “Statutes are to be interpreted in a manner that does not lead to absurd results. An interpretation is considered absurd if it “leads to ridiculous or frivolous consequences, if it is extremely unreasonable or inequitable, if it is illogical or incoherent, or if it is incompatible with other provisions or with the object of the Page: 16 legislative enactment”
AND “This is an absurd result. To choose it, as the LAT did, is unreasonable.”
This is not what you want to hear in reference to the hearings system for some of Ontario’s most vulnerable persons. Those statements and how the existing system is not serving consumers is exactly where the attention is most needed.
Now that there are no consumers included on the SAC, it is showing that a fair system is now far more unlikely to happen and there will be little improvement over the previous FSCO regulatory system. Consumers are not being represented when the Committee is welcoming only insurers to comment and influence policy.
FAIR, Vice Chair
November 14, 2019
Tomec v. Economical Mutual Insurance Company, 2019 ONCA 882 DATE: 20191108 DOCKET: C66763
 Statutes are to be interpreted in a manner that does not lead to absurd results. An interpretation is absurd if it “leads to ridiculous or frivolous consequences, if it is extremely unreasonable or inequitable, if it is illogical or incoherent, or if it is incompatible with other provisions or with the object of the Page: 16 legislative enactment”: Rizzo & Rizzo Shoes Ltd. (Re),  1 S.C.R. 27, 36 O.R. (3d) 418, at para. 27.
 Here, the decisions below thrust the appellant into a Kafkaesque regulatory regime. A hard limitation period would bar the appellant from claiming enhanced benefits, before she was even eligible for those benefits. However, if the appellant had not claimed any benefits until she obtained CAT status in 2015, she would not be caught by the limitation period: Machaj v. RBC General Insurance Company, 2016 ONCA 257, at para. 6. Alternatively, if the appellant had coincidentally obtained CAT status before 2012, the hard limitation period would not bar her claim for enhanced benefits.
 This outcome is absurd. There is no principled reason for barring the appellant’s claim for enhanced benefits in the first scenario but allowing the claim in the second and third scenario. To do so would effectively penalize the appellant for accessing benefits she is statutorily entitled to, or for developing CAT status too late.
 The impossible position a hard limitation places the appellant is best illustrated by having regard to Economical’s counsel’s oral submissions. Counsel denied that the appellant was put in a lose-lose situation. She argued that the appellant could have applied to the LAT before the expiry of the limitation period for a declaration that, in the future, she would be entitled to extended benefits if she were subsequently found to be CAT. Page: 17
 I start by noting that courts must be cognizant of the significant disparity in resources between large insurance companies and their insureds, who do not have unlimited resources to bring multiple proceedings, including prophylactic claims based on a future contingency: see MacDonald v. Chicago Title Insurance Company of Canada, 2015 ONCA 842, 127 O.R. (3d) 663, at para. 88, leave to appeal refused,  S.C.C.A. No. 39.
 In any event, if such a proceeding were commenced for a declaration, it is difficult to imagine how it could succeed. At best, the appellant could only lead speculative evidence that she might be CAT at some unknown point in the future. Faced with that evidentiary record, the LAT would likely decline to make the requested declaration.
 In my view, the hard limitation period puts the appellant in an impossible situation, where the time for claiming a benefit commences when she is ineligible to make such a claim. This is an absurd result. To choose it, as the LAT did, is unreasonable.