Citation and Court Information

CITATION: Aviva Insurance Company of Canada v. J.A., 2021 ONSC 3185

DIVISIONAL COURT FILE NO.: 400/20

DATE: 2021/04/30

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: Aviva Insurance Company of Canada, Appellant

and:

J.A. and LIcence Appeal Tribunal, Respondents

BEFORE: Swinton, Sachs and Lococo JJ.

COUNSEL: Jessica J.L. Rogers, for the Appellant Samia M. Alam, for the Respondent, J.A. Valerie Crystal, for the Respondent, Licence Appeal Tribunal

HEARD at Toronto by videoconference: April 28, 2021

ENDORSEMENT

[1] The Appellant, Aviva Insurance Company of Canada, appeals the Licence Appeal Tribunal (“LAT”) Reconsideration decision by Adjudicator Jesse Boyce dated May 25, 2020, in which he confirmed his initial decision dated February 12, 2020. In both decisions, the LAT awarded the Respondent, J.A., funding for his catastrophic impairment (“CAT”) assessments pursuant to s. 25(1)5 of the Statutory Accident Benefits Schedule – Effective September 1, 2010 (“2010 SABS”).

[2] Appeals to the Divisional Court from the LAT are confined to questions of law. The applicable standard of review is correctness.

[3] The question of law raised by this appeal is whether the LAT erred in its interpretation of the obligation imposed on insurers to fund CAT assessments pursuant to s. 25(1)5 of the 2010 SABS.

[4] Section 25(1)5 imposes a mandatory obligation on the insurer to pay for a CAT assessment. It reads as follows:

Cost of examinations

25(1) The insurer shall pay the following expenses incurred by or on behalf of an insured person:

5. Reasonable fees charged for preparing an application under section 45 for a determination of whether the insured person has sustained a catastrophic impairment, including an assessment or examination necessary for that purpose.

[5] In this case J.A’s family physician filed an OCF 19. At that time, J.A. had not obtained his own CAT assessment. Aviva determined that there was insufficient medical information and decided to conduct its own CAT assessment of J.A. Once it had done so, it denied J.A.’s request for benefits on the basis that he had not sustained a catastrophic impairment. J.A. sought funding from Aviva to pay for his own CAT assessment. Aviva denied the request. J.A. appealed that denial to the LAT, which allowed his appeal, although it did not grant him all of the funding he was seeking.

[6] On this appeal Aviva asserts that an insurer is only required to pay for a CAT assessment if that assessment is completed before the insured person submits their application under s. 45 of the 2010 SABS.

[7] In support of is position, Aviva points to the words “preparing an application under s. 45” and states that these words impose a temporal and chronological requirement on the insured person. In other words, once the insured person has filed their OCF 19 under s. 45, (which may but need not include a formal CAT assessment) the insured person has completed their application and is no longer “preparing” an application. If the claimant obtains an assessment after submitting the application, the claimant must bear the costs of it.

[8] To reinforce its submission Aviva points to the time limits imposed on the insurer under s. 45. Pursuant to s. 45(2) an insurer has ten business days to respond to an application for a determination of whether the insured person’s impairment is catastrophic. According to Aviva, because the insurer has a deadline to respond to an application, the application must be deemed to be complete once the insurer receives it.

[9] The LAT found that neither s. 25(1)5 nor s. 45 imposed any express time limits on the insured person to apply for funding for a CAT assessment. Further, the LAT refused to imply such a time limit by accepting the narrow and restrictive interpretation of “preparing an application under s. 45” proposed by Aviva. According to the LAT, use of the words “for that purpose” at the end of s. 25(1)5 requires that the insurer fund any assessment or examination necessary for the purpose of a determination of whether the insured has sustained a catastrophic impairment. In this case, the LAT found as a fact that because J.A. had had no CAT assessment of his own, such an assessment was necessary for the purpose of fairly determining whether his impairments were “catastrophic”.

[10] We agree with his interpretation and application of the provision, and we would add that “preparation” of an application does not cease once the formal document for initiating that application has been submitted. Preparation can continue until the CAT determination is decided on a final basis.

[11] We see no error of law in the LAT’s interpretation. Its interpretation is consistent with the language of s. 25(1)5 when read in context, consistent with the statutory scheme as a whole and consistent with the remedial objectives of the 2010 SABS. The SABS have been recognized to be consumer protection legislation and, as such, should be interpreted in a broad and purposive manner.

[12] Aviva also relies on the legislative history of the 2010 SABS. In the 1996 version insurers were required to fund rebuttal assessments as well as initial assessments. The 2010 SABS eliminated the right to funding for rebuttal assessments. According to Aviva, the LAT decision has the effect of allowing J.A. to obtain funding for a rebuttal assessment.

[13] The LAT accepted that J.A. was not entitled to funding for a rebuttal assessment. It then went on to determine that the assessment at issue was not a rebuttal assessment; it was J.A.’s first CAT assessment conducted on J.A.’s behalf. This was a finding of fact, which is not reviewable on appeal.

[14] The appeal is dismissed, since the Reconsideration decision discloses no error in law. As agreed by the parties, Aviva is to pay the Respondent, J.A., his costs fixed in the amount of $7500.00. LAT does not seek costs and none are awarded.

Swinton J.

Sachs J.

Lococo J.

Date: April 30, 2021