Court File and Parties

CITATION: Aviva General Insurance v. Khan, 2020 ONSC 1290

DIVISIONAL COURT FILE NO.: 699/18

DATE: 20200227

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: Aviva General Insurance, Appellant

AND: Razia Khan, Respondent

BEFORE: Sachs, Backhouse and Mew JJ.

COUNSEL: Michael J.L. White, for the Appellant Daniel J. Holland, for the Respondent

HEARD at Toronto: February 27, 2020

Endorsement

SACHS J. (Orally)

[1] The Appellant Insurer appeals from a decision of the Licence Appeal Tribunal (the “Tribunal”) ordering the Appellant to pay for medical expenses of the Respondent (also referred to as the “Insured”) pursuant to ss.14-15 of the Statutory Accident Benefits Schedule (“SABS”).

[2] Section 11(6) of the Licence Appeal Tribunal Act provides that appeals from the Tribunal may be made to the Divisional Court, but on a question of law only.

[3] Applying Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, the standard of review to be applied on this appeal, provided there is a question of law, is correctness.

[4] The focus of this appeal is a narrow one and arises out of para. 46 of the Tribunal’s decision, which reads:

While I am mindful that it is the [Insured’s] onus to prove her case, I am not persuaded by, the [Insurer’s] suggestion that the Treatment Plan has not been incurred. The evidence before me, specifically paragraph 7 of the [Insured’s] Affidavit, is that $2,342.18 remains outstanding to the Rehab Centre. Moreover, the Standards Benefit statement dated May 28, 2017, shows the [Insured’s] medical benefits available at $50,000-$3,395.00 = $46,605.00. In any event, I find the expense deemed incurred pursuant to s. 3(8) of the Schedule (emphasis added).

[5] The Appellant argues that the Tribunal erred in law when it relied on s. 3(8). Section 3(8) provides authority to the Tribunal to deem that an expense has been incurred (if it has found that it was not incurred). However, in order to do so, the Tribunal must also find the “insurer unreasonably withheld or delayed payment of a benefit in respect of the expense.” According to the Appellant, the Tribunal in this case made no finding that the Insurer had unreasonably withheld or delayed payment of the benefit in question. Further, there was no evidence in the record which supported such a finding and the Respondent Insured did not raise it as an issue.

[6] We agree with the Appellant that s. 3(8) is clear. It cannot be relied upon in the absence of a finding that the insurer unreasonably withheld or delayed payment of a benefit. We also agree that in this case the Tribunal made no such finding nor was there a basis for such a finding. However, we do not agree that this means that the Tribunal’s decision must be set aside.

[7] In our view, reading para. 46 as a whole, s. 3(8) is being used by the Tribunal as an alternate basis for ordering the Insurer to pay the expenses in question. The primary basis for making the order was the Tribunal’s view that the expenses had actually been incurred by the Insured within the meaning of s. 3(7) of SABS. This is clear from the first sentence of para. 46, which reads. “While I am mindful that it is the [Insured’s] onus to prove her case, I am not persuaded by the [Insurer’s] suggestion that the Treatment Plan has not been incurred.” In other words, the Tribunal was of the view that the expenses in question had been incurred. Furthermore, there was an evidentiary basis for him to make this finding, including the accounts from the Treatment Provider detailing the services it had provided (which included the disputed services) and the evidence of the Insured that she had had the treatments in question and owed money to the Treatment Provider for those expenses. We also pause to note that to the extent that there may be a dispute about whether an expense was actually “incurred” within the meaning of s. 3(7) of SABS, that is a question of fact, not a question of law.

[8] For these reasons the appeal is dismissed.

[9] I have endorsed the Appeal Book and Compendium as follows: “This appeal is dismissed for reasons given orally by Sachs J. Costs to the respondent fixed in the amount of $3,000.”

Sachs J.

I agree _______________________________ Backhouse J.

I agree _______________________________ Mew J.

Date of Oral Release: February 27, 2020

Date of Release: