CITATION: Amadiegwu v. Aviva General Insurance Company, 2023 ONSC 1256
DIVISIONAL COURT FILE NO.: 22-324
DATE: 20230223
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
R.S.J. MacLeod, Backhouse and Lococo JJ.
BETWEEN:
CLEMENT AMADIEGWU
Mohamed Elbasiouni and Florence W.M. Chiu, for the Appellant
Appellant
AVIVA GENERAL INSURANCE COMPANY & LICENCE APPEAL TRIBUNAL
Cezary Paluch, for the Respondent, Aviva
Valerie Crystal, for the Respondent, Tribunal
Respondents
HEARD at Toronto: February 21, 2023
C. Macleod R.S.J. (Orally)
(1) Clement Amadiegwu appeals the decision of the Licence Appeal Tribunal (LAT) denying him Income Replacement Benefits (IRB) following an accident on September 11, 2017.
(2) The jurisdiction of this court is to intervene by way of appeal only to correct an error of law.[^1]
(3) We are all of the view that no extricable question of law was identified by the Appellant. There was no finding of fact by the LAT which was unsupported by the evidence or was based on an “irrational inference.” The Appellant testified for a full day before the Adjudicator and the Adjudicator was entitled to decide if the Appellant had satisfied the onus of proving his case as well as whether or not to give any weight to the opinions of the experts who testified.
(4) We were referred to Fordjour v. Royal and Sun Alliance Ins. Co. of Canada[^2] amongst other authorities. Fordjour is distinguishable because in that case the Adjudicator had improperly excluded the opinion of the family doctor. We do not interpret paragraph 6 of that decision to stand for the proposition that an Adjudicator must in every case give advance notice of findings of fact or credibility.
(5) We also do not accept the argument that an Adjudicator must in each case specifically address the test for causation. There is nothing in the reasons of the Adjudicator to suggest that she applied anything other than the “but for” test when she concluded that the Appellant had failed to prove an inability to work that was causally connected to the car accident.
(6) We see no reason to find that the Adjudicator misinterpreted the SABS[^3] except to the extent that she misstated the post 104-week test for IRB continuation. We agree with the reviewing Adjudicator that this misstatement did not prejudice the Appellant or affect the result.
(7) Finally, we are unable to accept the argument that there was any lack of procedural fairness over the course of the 10-day hearing before the Adjudicator.
(8) Consequently, the Appeal is dismissed. As agreed between counsel, costs are to be paid by the Appellant to the Respondent Aviva fixed at $5,000. The LAT is neither entitled to nor liable for costs.
C. MacLeod R.S.J.
I agree. ___________________________
N. Backhouse J.
I agree. ___________________________
R. Lococo J.
Date of Oral Reasons for Judgment: February 21, 2023
Date of Written Release: February 23, 2023
CITATION: Amadiegwu v. Aviva, 2023 ONSC 1256
DIVISIONAL COURT FILE NO.: 22-324
DATE: 20230223
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
R.S.J. MacLeod, Backhouse and Lococo JJ.
BETWEEN:
CLEMENT AMADIEGWU
Appellant
– and –
AVIVA GENERAL INSURANCE COMPANY & LICENCE APPEAL TRIBUNAL
Respondents
ORAL REASONS FOR JUDGMENT
MACLEOD R.S.J.
Date of Oral Reasons for Judgment: February 21, 2023
Date of Written Release: February 23, 2023
[^1]: S. 11(6), Licence Appeal Tribunal Act, 1999, S.O. 1999, c. 12, Sched. G.
[^2]: 2019 ONSC 6268 (Div. Ct.)
[^3]: Statutory Accident Benefits Schedule – Effective September 1, 2010, O. Reg. 34/10, under the Insurance Act, R.S.O. 1990, c. 1.8.