Aviva General Insurance Company v. Maharaj, 2026 CanLII 39707

Citation: Aviva General Insurance Company v. Maharaj, 2026 ONLAT 24-010417/AABS

Licence Appeal Tribunal File Number: 24-010417/AABS

In the matter of an application pursuant to subsection 280(2) of the Insurance Act, RSO 1990, c I.8, in relation to statutory accident benefits.

Between:

Aviva General Insurance Company

Applicant

and

Nicholas Maharaj

Respondent

DECISION

VICE-CHAIR: Brian Norris

APPEARANCES:

For the Applicant: Geoffrey Keating, Counsel

For the Respondent: Olga Poznyakova, Paralegal

HEARD: By way of written submissions

OVERVIEW

1Nicholas Maharaj (“Maharaj”) was involved in an automobile accident on March 28, 2017, and sought benefits from Aviva General Insurance Company (“Aviva”) pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the “Schedule”).

2Maharaj was denied non-earner benefits (“NEBs”) by Aviva and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute. The issue went to a hearing, and reconsideration, in which the Tribunal determined that Maharaj was entitled to NEBs for the period from February 20, 2018 to March 28, 2019, and ongoing, based on a denial notice that failed to comply with the Schedule.

3Following the hearing and reconsideration, Aviva requested an updated disability certificate from Maharaj and requested that Maharaj attend for insurer’s examinations (“IEs”). Maharaj did not submit an updated disability certificate and did not participate in IEs. Aviva then suspended Maharaj’s NEBs payable in response to his refusal to participate in IEs and produce an updated disability certificate.

ISSUES

4The issues in dispute are:

i. Does section 281 of Insurance Act apply with respect to Aviva’s suspension of Maharaj’s entitlement to NEBs effective August 17, 2022 (the “Suspension”)?

ii. Whether the Suspension is otherwise valid?

iii. Is the Aviva liable to pay an award under section 10 of Regulation 664 because it unreasonably withheld or delayed payments to the respondent?

RESULT

5Section 281 of the Insurance Act does not apply with respect to Aviva’s suspension of Maharaj’s payments for NEBs.

6Aviva’s suspension of Maharaj’s entitlement to NEBs is valid pursuant to section 33(6) of the Schedule.

7Aviva is not liable to pay an award.

ANALYSIS

8The crux of this dispute is whether the decision by the Tribunal in Maharaj v. Aviva Insurance Canada, 2021 CanLII 13191 (ONLAT) (“the initial decision”) entitles Maharaj to NEBs in perpetuity and precludes Aviva from requesting an updated disability certificate or seeking IEs. For the following reasons, I find that it does not, and Aviva is permitted to request an updated disability certificate and seek IEs with respect to the Applicant’s entitlement to NEBs, pursuant to section 37(1) of the Schedule.

The relevant sections of the Insurance Act and the Schedule

9Section 281(1) of the Insurance Act states:

After the Licence Appeal Tribunal issues a decision, the insurer shall not reduce the benefits to the insured person on the basis of an alleged change in circumstances, alleged new evidence or an alleged error except as provided under this section.

10Section 281(2) of the Insurance Act states:

The insurer may reduce benefits if,

(a) The insured person agrees;

(b) The insurer is authorized to do so as a result of a successful appeal of the Licence Appeal Tribunal’s decision; or

(c) The insurer is authorized to do so by the Licence Appeal Tribunal.

11Section 33(1)1 of the Schedule states:

An applicant shall, within 10 business days after receiving a request from the insurer, provide the insurer with the following:

1. Any information reasonably required to assist the insurer in determining the applicant’s entitlement to a benefit.

12Section 33(6) of the Schedule states:

The insurer is not liable to pay a benefit in respect of any period during which the insured person fails to comply with subsection (1) or (2).

13Section 33(8) of the Schedule states:

If an applicant who failed to comply with subsection (1) or (2) subsequently complies with that subsection, the insurer,

(a) Shall resume payment of the benefit, if a benefit was being paid; and

(b) Shall pay all amounts that were withheld during the period of non-compliance, if the applicant provides a reasonable explanation for the delay in complying with the subsection.

14Section 37(1) of the Schedule states:

If an insurer wishes to determine if an insured person is still entitled to a specified benefit, the insurer may, but not more often than is reasonably necessary,

(a) request that the insured person submit, within 15 business days, a new disability certificate completed as of a date on or after the date of the request;

(b) notify the insured person that the insurer requires an examination under section 44; or

(c) do both.

15Section 37(2) of the Schedule states:

An insurer shall not discontinue paying a specified benefit to an insured person unless,

(a) The insured person fails or refuses to submit a completed disability certificate if requested to do so under subsection (1);

(b) The disability certificate submitted on behalf of the insured person does not support the insured person’s continuing entitlement to the benefit;

(c) The insurer has received the report of the examination under section 44, if the insurer required an examination under that section, and has determined that the insured person is not entitled to the benefit;

(d) The insurer is entitled under subjection (7) to refuse to pay the specified benefit;

(e) The insured person has resumed his or her pre-accident employment duties;

(f) The insurer is no longer required to pay the specified benefit by reason off subsection (7), paragraph 2 of subsection 28(1), subsection 33(6) or section 57 or 58; or

(g) The insured person is not entitled to the specified benefit for a reason unrelated to whether he or she has an impairment that entitles the insured person to receive a specified benefit.

16Section 37(3) of the Schedule states:

If an insured person fails to submit a completed disability certificate as required under subsection (1), no specified benefits are payable for the period commencing the 15th business day after the day the insured person received the insurer’s request and ending, if the insured person subsequently submits a completed disability certificate, the day the insurer receives the completed disability certificate.

Arguments of the parties

17Aviva submits that section 281 of the Insurance Act cannot apply with respect to its suspension of benefits and that it has an ongoing obligation to adjust Maharaj’s claim for NEBs, which includes seeking an updated disability certificate or IEs, pursuant to section 37(1) of the Schedule, to determine ongoing entitlement to the benefit. It further submits that applying section 281 of the Insurance Act with respect to the specific facts of this case would result in absurd consequences.

18Aviva submits that the Tribunal should follow the reasoning in M.C. v. Wawanesa Insurance Company, 2019 CanLII 110109 (ON LAT) (“MC”). In MC, a reconsideration decision, the Tribunal confirmed that the use of the term “to date and ongoing” preserves the Applicant’s right to an ongoing benefit until such time that they are no longer eligible under the Schedule. The Tribunal also found that without the benefit of such language, a potential dispute from the day after the release of a decision may ensue. The Tribunal opined that using the term “to date and ongoing” allows an insurer to continue adjusting the insured persons claim for ongoing entitlement to a specified benefit.

19Maharaj submits that MC is not applicable because it addresses income replacement benefits (“IRBs”), instead of NEBs. He distinguishes the two specified benefits by highlighting that IRBs have two distinct tests, one for the first 2 years following the accident, and another for the period after two yours following the accident. Maharaj submits that Aviva’s position, and the cases it refers to, does not consider its technical breaches and a non-compliant denial notice cannot be cured following the hearing. He submits that the Aviva is now barred from curing the insufficient denial notice and that finding is “locked in” based on the Tribunal’s decision.

20I infer from these submissions above that Maharaj takes the position that, because there is only one test to qualify for NEBs, Aviva does not have another opportunity to adjust his claim following the initial decision. Whereas, if he were claiming IRBs, the Respondent would have an opportunity to adjust the claim on or around the two-year mark when the test becomes more stringent.

21Maharaj further submits that section 281 of the Insurance Act protects his entitlement to NEBs after the Tribunal issued a decision. He submits that section 281 of the Insurance Act takes precedence over section 37 of the Schedule. To Maharaj, Aviva must follow the procedures outlined in section 281(2) of the Insurance Act following the initial decision. Maharaj submits that section 281 clearly prohibits Aviva from reducing benefits after the Tribunal issued the initial decision, except as provided within the Insurance Act.

Findings

22I find that Aviva is permitted to suspend the payment Maharaj’s NEBs in light of his failure to provide an updated disability certificate and attend at IEs.

23I agree with and adopt the reasoning outlined in Balasubramaniam v. Aviva General Insurance Company, 2023 CanLII 4452 (ON LAT) (“Balasubramaniam”), submitted by Maharaj. In Balasubramaniam, the Tribunal concluded that section 287 of the Insurance Act (now section 281) barred the insurer from reducing benefits unless it met the criteria as outlined in the current section 281(2), referenced earlier. Moreover, the adjudicator in Balasubramaniam also found that, despite the operation of the Insurance Act, and the barrier to reducing benefits outlined therein, the insured person’s obligation to comply with section 33 of the Schedule remained. It was determined then that there is no exception under section 33(6) where the insurer is not liable to pay a benefit during the insured person’s period of noncompliance with a section 33 request for information.

24Though I recognize that it is not binding upon me, I find that the application of the principles outlined in Balasubramaniam is the best way to address the current dispute. This is because the adjudicator correctly balanced the rights of the insured, as outlined in section 281 (then 287) of the Insurance Act, with the rights of the insurer, as outlined in the Schedule. It was determined that while the insurer was barred from reducing the insured’s entitlement to IRBs without a variation or revocation order pursuant to the Insurance Act, it maintained the obligation to continually adjust the Applicant’s claim, which includes seeking information pursuant to section 33 of the Schedule, or an updated disability certificate or an IE, pursuant to section 37(1).

25I find that section 281 does not override section 33 of the Schedule, and Maharaj’s obligation to provide information to Aviva that is reasonably required to adjust his claim. The operation of section 281 of the Insurance Act does not allow Maharaj to avoid his responsibility to provide information requested pursuant to section 33 of the Schedule., nor does it exempt him from producing an updated disability certificate or attending an IE pursuant to section 37(1). Considering Aviva’s ongoing obligation to adjust Maharaj’s claim, it is permitted to investigate whether Maharaj continues to be entitled to the benefit, which includes seeking information via section 33 or 37 of the Schedule. Then, after Aviva receives the information, it can make the choice to apply for a variation or a revocation of a prior determination on the benefits. Maharaj’s refusal to provide information required to adjust his claim has stifled Aviva’s ability to seek information and decide as to whether it should apply for a variation or revocation.

26Having failed to provide the requisite information, the Applicant is not compliant with section 33 of the Schedule and Aviva is entitled to suspend Maharaj’s NEBs. This is because Aviva has virtually no other option to compel Maharaj to produce the information than to suspend the Maharaj’s NEBs pursuant to section 33 of the Schedule.

27It is important to highlight that section 33(8) of the Schedule mitigates the impact of a suspension of benefits. This is because section 33(8) provides that amounts withheld during a suspension may be repaid if there is a reasonable explanation for the delay. To me, this demonstrates that a suspension of benefits under section 33 of the Schedule may only be temporary and may not lead to any loss of benefits if there is a reasonable explanation for the delay. In other words, a suspension of benefits is different from a reduction of benefits because suspended benefits may be repaid.

28Lastly, I find that sections 33 and 37 of the Schedule are not impacted by a prior Tribunal decision in any way. There is no provision in section 33 that bars Aviva from exercising its right to seek information reasonably required to adjust Maharaj’s claim for NEBs. This right includes seeking an updated disability certificate, or attendance at IEs. This is consistent with Aviva’s ongoing obligation to adjust Maharaj’s claim, which does not end following a Tribunal decision. Aviva must continue to adjust the claim, which can include a request for an updated disability certificate, give notice of an IE, or do both, pursuant to section 37 of the Schedule. Similarly, a prior Tribunal decision does not permit Maharaj to ignore a request for information made pursuant to section 33 request, nor is he exempt from complying with his obligations outlined in the Schedule.

29It would be an unreasonable windfall for an insured person to receive NEBs for their life simply because the Tribunal found that the insurer gave an insufficient stoppage notice. While an insufficient notice may be the path to entitlement at a hearing, it cannot be said that a finding of an insufficient notice at a hearing would grant NEBs in perpetuity. The ongoing nature of specified benefits, such as NEBs, means that the claim requires ongoing adjusting and may be revisited, provided that revisiting the claim is done not more than reasonably necessary, in accordance with section 37 of the Schedule.

30Accordingly, I find that Aviva’s suspension of Maharaj’s benefits is valid.

Award

31Maharaj sought an award under section 10 of Regulation 664. Under section 10, the Tribunal may grant an award of up to 50 per cent of the total benefits payable if it finds that an insurer unreasonably withheld or delayed the payment of benefits.

32Maharaj claims entitlement to an award on the basis that Aviva unreasonably withheld or delayed the payment of NEBs through an invalid suspension of benefits.

33Having determined that Aviva’s suspension of Maharaj’s NEBs is valid, it follows that the benefits have not been unreasonably withheld or delayed. Thus, I find no award payable.

CONCLUSION AND ORDER

34I find that Aviva’s suspension of Maharaj’s entitlement to NEBs is valid and not subject to section 281 of the Insurance Act.

35Aviva is not liable to pay an award.