Aviva Canada Inc. v. Sidhu, 2018 ONSC 6506 (CanLII)
As a result of a motor vehicle accident in 1996, Mr. Sidhu received IRBs until September 1996 when Aviva sent him a letter stating that he was not entitled to further benefits. The letter noted that mediation was the next step and included a copy of section 64 of the Statutory Accident Benefits Schedule – Accidents after December 31, 1993 and Before November 1, 1996.
In June 2014, Mr. Sidhu applied to mediate his entitlement to benefits. The mediation failed. In October 2014, Mr. Sidhu applied for arbitration at FSCO. Arbitrator Tanaka found that Mr. Sidhu’s claim for IRBs was not statute barred because the contents of the notices did not meet the requirements set out in Smith v. Co-operators General Insurance Company, [2002] S.C.R. 129, which requires that the insurer inform the insured of the dispute resolution process and the applicable time limits in straightforward and clear language. Aviva’s appeal was dismissed by Delegate Rogers. Aviva applied to the Divisional Court for judicial review.
On appeal, Aviva conceded that its notices do not meet the Smith requirements, but argued that courts have taken a more contextual approach since Smith. The Divisional Court found that given the requirements of Smith and Aviva’s concession that its notice did not meet the Smith requirements, it was reasonable for the Delegate to hold that the limitation period had not started to run. The application was dismissed.