Court File and Parties
CITATION: Khan v. Aviva, 2024 ONSC 4056
DIVISIONAL COURT FILE NO.: DC-23-1378-AP
DATE: 2024-07-18
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Fitzpatrick, O’Brien and Cullin JJ
BETWEEN:
RAVINDERRAJ KHAN
Appellant
– and –
AVIVA INSURANCE COMPANY OF CANADA
Respondent
Counsel:
Tal Eshel, for the Appellant
Kevin Griffiths, for the Respondent
HEARD at Oshawa: June 26, 2024
REASONS FOR DECISION
Cullin, J.
Overview
[1] The appellant, Ravinderraj Khan ("Mr. Khan"), was involved in a motor vehicle accident on February 21, 2015 ("the accident").
[2] The respondent, Aviva Insurance Company of Canada ("Aviva"), is Mr. Khan’s statutory accident benefits insurer. Following the accident, Mr. Khan submitted an Application for Accident Benefits to Aviva pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010, O. Reg. 34/10 (the “SABS”).
[3] Disputes arose regarding Mr. Khan’s entitlement to benefits. In 2021, he commenced an application to the License Appeal Tribunal ("LAT") that sought entitlement to a catastrophic impairment designation, attendant care benefits, goods and services proposed in nine treatment plans, interest, and a special award.
[4] Mr. Khan’s application to the LAT was denied in its entirety. He appeals the decision, dated February 3, 2023 (Khan v Aviva Insurance Company of Canada), and the reconsideration decision, dated April 20, 2023 (Khan v Aviva Insurance Company of Canada), of LAT Vice-Chair Chloe Lester (“V/C Lester”).
[5] For the reasons that follow, I would deny Mr. Khan’s appeal.
Standard of Review
[6] The LAT’s enabling statute, the License Appeal Tribunal Act, 1999, S.O. 1999, c. 12, Sch. G, provides at s. 11(6) that an appeal to the Divisional Court relating to the Insurance Act may proceed on a question of law only. Counsel agree that the standard of review in this appeal is correctness.
Decision of the Licence Appeal Tribunal
[7] Vice-Chair Lester’s denial of Mr. Khan’s application was rooted in the following factual findings:
a. As a result of the accident, Mr. Khan suffered an exacerbation of pre-existing physical impairments and the onset of new psychological impairments.
b. The accident had little to no impact on Mr. Khan's pre-existing physical impairments after the spring of 2017.
c. Mr. Khan’s accident-related psychological symptoms improved with treatment.
d. By 2019, Mr. Khan had no physical or psychological impairments caused by the accident.
e. Mr. Khan’s psychological state deteriorated starting in the fall of 2017 and continuing into 2018 due to a number of stressors arising from the onset of frequent seizures and shoulder dislocations.
f. Neither the seizures nor the shoulder dislocations were caused by the accident. No treating doctor or expert, including experts retained by Mr. Khan, attributed the seizures to the accident. The shoulder dislocations were attributed to a Hills-Sachs deformity which was unrelated to the accident.
[8] Given these factual findings, V/C Lester concluded that Mr. Khan did not meet the “but/for” test of causation required to establish entitlement to a catastrophic impairment designation.
[9] With respect to the specific benefits and monetary awards claimed, V/C Lester found:
a. Because Mr. Khan was not suffering from accident-related physical and psychological impairments by 2019, he was not entitled to the attendant care benefits that he was claiming from May 1, 2019 onwards.
b. Mr. Khan did not satisfy his burden of demonstrating that the nine disputed treatment plans included in his application were reasonable and necessary. One treatment plan was not denied by Aviva within the timeframe required by the SABS, but nothing was owing as it was not established that any expense was incurred before it was properly denied.
c. Since Mr. Khan was not entitled to benefits, he was not entitled to interest or a special award.
[10] Mr. Khan’s request for a reconsideration was denied by V/C Lester. She found that the request raised no errors of fact or law that required reconsideration.
Issues and Analysis
[11] This appeal raised the following issues:
a. Did V/C Lester err in finding that Mr. Khan was not catastrophically impaired and specifically:
i. Did the manner in which V/C Lester weighed the evidence amount to an error in law?
ii. Did V/C Lester's analysis on causation amount to an error in law?
b. Did V/C Lester err when she failed to award up to $36,000 in attendant care benefits notwithstanding her conclusion that Mr. Khan was not catastrophically impaired?
c. With respect to the disputed treatment plans:
i. Did V/C Lester err in law when she ruled that the nine treatment plans were not reasonable and necessary?
ii. Did V/C Lester err in law when she refused to award two treatment plans pursuant to section 38(11) of the SABS?
iii. Did V/C Lester err in law when she failed to award the treatment plans because Aviva denied them without providing adequate medical reasons?
Catastrophic Impairment - Weighing the Evidence and Causation
[12] In argument, counsel for Mr. Khan conceded that the record disclosed no errors of law with respect to V/C Lester’s weighing of the evidence or her analysis on causation in determining that Mr. Khan was not entitled to a catastrophic impairment designation. Her assessments of credibility and findings of fact were available to her on the record. Her decision identified both the “but for” and the “material contribution” tests for causation and properly applied the “but for” test as agreed by counsel. The appeal fails on this issue.
Attendant Care Benefits
[13] Mr. Khan argued before the LAT that he was entitled to attendant care benefits from May 1, 2019 onward as a catastrophically impaired claimant.
[14] In this appeal, Mr. Khan argues that, even if V/C Lester found that he was not entitled to attendant care benefits at the level of a catastrophically impaired claimant, she was obliged to consider whether he was entitled to attendant care benefits at the level of a non-catastrophically impaired claimant.
[15] Pursuant to ss. 19 and 20 of the SABS, a non-catastrophically impaired claimant may claim attendant care benefits to a limit of $36,000 for services required within the first 104 weeks following an accident. In this case, that entitlement expired well before May 1, 2019.
[16] In argument, counsel conceded that there was no disputed claim by Mr. Khan for non-catastrophic attendant care benefits. Pursuant to s.55(1) of the SABS, applications before the LAT are limited to disputed claims between the insured and the insurer. Neither the LAT nor this Court have the jurisdiction to adjudicate issues that are not before them. The appeal fails on this issue.
[17] There were nine disputed treatment plans before the LAT for services consisting of: occupational therapy, dated June 19, 2019; psychological treatment dated June 24, 2019, October 21, 2019, December 13, 2019, and May 7, 2020; a psychological assessment, dated November 13, 2019; an attendant care assessment, dated September 11, 2019; and, massage therapy, dated September 9, 2019.
[18] Sections 15 and 16 of the SABS require an accident benefits insurer to pay for reasonable and necessary medical and rehabilitation treatment expenses incurred by an applicant as a result of an accident, within the monetary limits provided in the SABS. The burden is on the applicant to prove on a balance of probabilities that the treatment claimed is reasonable and necessary.
[19] Aviva argues, and I agree that, given V/C Lester’s finding that Mr. Khan was suffering from no accident-related physical or psychological impairments by 2019, she was correct to dismiss his claims for benefits under the disputed treatment plans, all of which were submitted after June 2019. In other words, as there was no error of law in V/C Lester’s underlying factual findings about Mr. Kahn’s accident-related impairments, it follows that she was entitled to dismiss the claims for benefits.
[20] Mr. Khan also submits that V/C Lester erred in failing to award the treatment plans dated December 13, 2019 and May 7, 2020 which were denied by Aviva outside of the time limit provided in s.38(8) of the SABS. This argument must fail for the following reasons:
a. V/C Lester found that the treatment plan dated December 13, 2019 was denied outside of the time limit but declined to order benefits as there was no evidence before her that expenses were incurred between the time limit and January 29, 2020 when the treatment plan was properly denied. This analysis correctly applied s.38(11) of the SABS.
b. V/C Lester found that the treatment plan dated May 7, 2020 was denied within the time limit. Her analysis correctly applied s.38(8) of the SABS.
[21] Mr. Khan finally submits that V/C Lester erred in failing to award the treatment plans because Aviva denied them without providing adequate medical reasons. No shortcomings in Aviva’s independent medical assessments were advanced in the application to the LAT.
[22] I agree with Aviva’s submission that it is improper to raise this issue for the first time on appeal.
[23] Mr. Khan’s application stated, without qualification, that he attended for an insurer’s examination with respect to the disputed benefits and that the treatment plans were denied because the insurer deemed them not to be reasonable and necessary. This was the issue before V/C Lester and it was properly determined by her. This ground for appeal must also fail.
Interest and Special Award
[24] Mr. Khan’s claims for interest and a special award were derivative of his claims for benefits. As no appealable issues were identified with respect to the underlying claims for benefits, it is not necessary to address these claims further.
Disposition and Costs
[25] Mr. Khan’s appeal is therefore denied.
[26] In accordance with the agreement of the parties, the costs of this appeal are fixed in the amount of $2,500 plus HST, payable by the appellant to the respondent.
Cullin J.
I agree _______________________________
Fitzpatrick J.
I agree _______________________________
O’Brien J.
Released: July 18, 2024
CITATION: Khan v. Aviva, 2024 ONSC 4056
DIVISIONAL COURT FILE NO.: DC-23-1378-AP
DATE: 2024-07-18
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Fitzpatrick, O’Brien and Cullin JJ.
BETWEEN:
RAVINDERRAJ KHAN
Appellant
– and –
AVIVA INSURANCE COMPANY OF CANADA
Respondent
REASONS FOR DECISION
Released: July 18, 2024