Citation: Tran v. Aviva, 2016 ONSC 549

AMENDED DIVISIONAL COURT FILE NO.: 83038/13

DATE: 2016-01-22

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

Single Judge B. Glass

BETWEEN:

JENNY TRAN & AJAX UNISEX SALON & SPA INC. Appellants

– and –

AVIVA CANADA INC. Respondent

COUNSEL:

R. Parker, for the Appellants

P. Yannakis, for the Respondent

HEARD: January 21, 2016

Small Claims Court Appeal

[1] Jenny Tran & Ajax Unisex Salon & Spa Inc. appeal a Small Claims Court decision of Deputy Judge Davis granting judgment in favour of AVIVA Canada Inc. for the sum of $5,567.10 with respect to payment for alleged massage therapy treatments pursuant to a treatment plan for a person injured in a motor vehicle accident.

[2] Aviva claimed the funds because it had paid for massage treatments and then had discovered that Ms. Tran was not a licensed massage therapist. There had been no waiver of a treatment plan. The form completed by Ms. Tran stated that she was a massage therapist. Further, the form was signed by Ms. Tran and it stated that she understood that one commits an offence under the Insurance Act to knowingly make a false or misleading statement or representation and also that one commits an offence under the Criminal Code to defraud or attempt to defraud by deceit, falsehood or other dishonest acts.

[3] At the trial, Ms. Tran testified that she was an unlicensed massage practitioner not a therapist, that she had been told by an Aviva person to check off massage therapist because there was no check space for unlicensed massage practitioner.

[4] The deputy judge was alive to the issue that compensation for massage therapy services flowed from massage treatment conducted by a licensed therapist. The preponderance of evidence clearly demonstrates that Ms. Tran completed the Aviva form and did not disclose to the insurance company that she was unlicensed. The thrust of her defence was that Aviva found out she was not licensed and still paid her so that in effect the company suffers a hard luck story of being unwise enough to pay and discovered later that she was unlicensed to the extent that Aviva is not entitled to be repaid.

[5] Such a position virtually tells the story that if Ms. Tran can get away with tricking Aviva and is not discovered before payment, then Aviva is out of luck. At this appeal, she argues that she was paid some compensation after the company was investigating her for fraud and further that Aviva had a 1 year limitation time to make a claim.

[6] Aviva says 1 year is incorrect and that it would be a 2 year limitation; however, this is a fraudulent activity that would not have been caught even with Ms. Tran’s 1 year limitation argument.

[7] The deputy judge provided reasons that address the issues at play. He correctly noted that if she was not a licensed massage therapist, she was not entitled to compensation. I might note that the only exception there would have been a waiver by Aviva for no treatment plan which would not require services by a licensed massage therapist.

[8] Evidence was presented at trial by witnesses from the regulatory body for Massage Therapists as well as Aviva investigatory personnel. The trial judge assessed the evidence in reaching a conclusion about what had happened. His reasons for his decision are clear. His decision was one that a trial judge could make based on the evidence.

[9] There is no error by the trial judge.

[10] Therefore, the appeal is dismissed.

[11] Costs to the respondent, Aviva.

Justice B. Glass

Released: January 22, 2016