Court File and Parties

CITATION: Adam v. Aviva General Insurance Company, 2024 ONSC 3577

DIVISIONAL COURT FILE NO.: 400/23 DATE: 20240620

ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT

Backhouse, Coats, Leiper JJ.

BETWEEN:

JAMELA ADAM Appellant

– and –

AVIVA GENERAL INSURANCE COMPANY Respondent

Michelle L. Velvet, for the Appellant J. Pasternak, for the Respondent, Aviva General Insurance Company

– and –

Licence Appeal Tribunal Respondent

Jesse Boyce, for the Respondent, Licence Appeal Tribunal

HEARD at Toronto: June 18, 2024

REASON FOR DECISION

Backhouse J.

[1] Jamela Adam (the “Appellant”) appeals a decision dated February 2, 2023 and Reconsideration Decision dated May 25, 2023 of the Licence Appeal Tribunal (“LAT”) which found that she failed to demonstrate entitlement to post-104 week income replacement benefits (“IRBs”) pursuant to s.6(2) (b) of the Statutory Accident Benefits Schedule – Effective September 1, 2010 (“SABS”). Under that subsection the insurer is not required to pay IRBs after the first 104 weeks of disability unless, as a result of the accident, the insured person is suffering a complete inability to engage in any employment or self-employment for which he or she is reasonably suited by education, training or experience.

[2] This court has jurisdiction over this appeal pursuant to s. 11(1) of the Licence Appeal Tribunal Act, 1999, S.O. 1999, c. 12, Sched. G (“LATA”). Pursuant to s. 11(3) of LATA, an appeal may be made on a question of law only.

[3] With respect to the issues on appeal, the appellate standard of review applies. Issues of fact, and issues of mixed fact and law (unless there is an extricable question of law), are to be reviewed on a standard of palpable and overriding error. Issues of law are to be reviewed on a standard of correctness: Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, at para. 37. Regarding breaches of procedural fairness, this Court must determine whether the requisite level of procedural fairness was granted by applying the factors set out in Baker v. Canada (Minister of Citizenship and Immigration), 1999 699 (SCC), [1999] 2 S.C.R. 817.

[4] The Appellant raised five key issues on the appeal.

Issue 1: Did LAT err in law in finding that new binding case law, Varriano v. Allstate Insurance Company of Canada (“Varriano”), 2023 ONCA 78, is not evidence for the purpose of a request for reconsideration under LAT Rule 18.2(d)?

[5] A new decision from a higher court does not constitute new evidence that can be relied upon for a reconsideration request: see Jhajj v. Canada (Minister of Employment and Immigration), 1995 3583 (FC), [1995] 2 FC 369, where the court rejected a similar request for reconsideration because recognizing new jurisprudence as evidence could have the effect of (1) inundating lower courts with reconsideration requests (paras. 32-34), and (2) could subject settled cases to re-litigation, contrary to established legal principles (paras. 35-37).

Issue 2: Did LAT err in failing to find that the Appellant is entitled to post-104-week IRBs because Aviva failed to comply with s. 37(4) and (5) of the SABS?

[6] The Appellant submits that LAT erred for failing to find that the Appellant is entitled to post-104-week IRBs because Aviva failed to comply with s. 37(4) and (5) of the SABS which provide:

(4) If the insurer determines that an insured person is not entitled or is no longer entitled to receive a specified benefit on any one or more grounds set out in subsection (2), the insurer shall advise the insured person of its determination and the medical and any other reasons for its determination. O. Reg. 34/10, s. 37 (4).

(5) Within 10 business days after receiving the report of an examination under section 44, the insurer shall give a copy of the report to the insured person and to the person who completed the disability certificate, if one was provided in accordance with subsection (1). O. Reg. 34/10, s. 37 (5).

[7] Having reviewed the denial letter sent to the Appellant, I agree with LAT that Aviva complied with s. 37(4) of the SABS. The denial letter included a list of the medical and other reasons as to why the post-104-week IRB was denied, the denial does not lack medical reasons and provided enough specificity about her condition. There is no merit to the Appellant’s argument that because it was a statutory requirement for the insurer to provide the medical reports to the insured, LAT erred by referring in the denial letter to the fact that in addition to medical reasons provided to the Appellant, she was also provided with the ss.44 IE medical reports.

[8] I also find no merit in the Appellant’s argument that there are four requirements that a denial letter must meet under Varriano to comply with s. 37(4) of the SABS.

Issue 3: Did LAT err in its finding that ss. 36 and 38 of the SABS were not applicable?

[9] Having found that Aviva complied with s.37(4) and (5) of the SABS, it was neither necessary nor relevant for LAT to address the Appellant’s argument about the consequences of non-compliance set out in completely different sections, s. 36 and 38 of the SABS. I also agree with LAT and Aviva that had Aviva been found to have failed to comply with s. 37 of the SABS, the consequences based on s. 36 and s. 38 of the SABS were not applicable.

Issue 4: Did LAT err in its treatment of the evidence?

[10] The Appellant’s arguments about LAT erring in its treatment of the evidence do not raise issues of law to which this court’s jurisdiction is restricted. The Appellant cited no legal authority to support her argument that it was an error of law for LAT not to refer in its Decision to the evidence of a lay witness called by the Appellant. The Appellant did not provide a transcript of the evidence, an affidavit summarizing the evidence or even a submission about the relevance of the witness’s evidence. I find no error.

Issue 5: Did LAT err when it did not perform a causation analysis for the post-104- week period or quantify the Appellant’s entitlement to the post-104-week IRBs from the period between the stoppage date and her employment with the TTC, had she been successful?

[11] Having found that the Appellant had failed to demonstrate entitlement to post-104-week IRBs, it would be a waste of time and resources to perform a causation analysis or quantify benefits. Moreover, the Appellant had not produced income tax records necessary to perform the calculation. There was no error.

Conclusion

[12] The appeal is dismissed. Costs of $5000 are awarded to Aviva in accordance with the parties’ agreement.

Backhouse J.

I agree _______________________________

Coats J.

I agree _______________________________

Leiper J.

Released: June 20, 2024

CITATION: Adam v. Aviva General Insurance Company, 2024 ONSC 3577

DIVISIONAL COURT FILE NO.: 400/23 DATE: 20240620

ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT

Backhouse, Coats, Leiper JJ.

BETWEEN:

JAMELA ADAM

– and –

AVIVA GENERAL INSURANCE COMPANY

– and –

Licence Appeal Tribunal

REASONS FOR DECISION

BACKHOUSE J.

Released: 20240620