Guest Author: Samia Alam, Samia Alam Law PC
Counsel for the Appellant: Jessica J.L. Rogers
Counsel for the Respondent, J.A.: Samia M. Alam
Counsel for the Respondent, Licence Appeal Tribunal: Valerie Crystal
The Respondent, J.A. was injured in a motor vehicle accident in February 2005. He applied for accident benefits through his insurer, Aviva. In 2015, around the time when his medical rehabilitation benefits were expiring, he applied for catastrophic impairment determination. Although Aviva found there was insufficient medical documentation, it nonetheless conducted its CAT assessments which later found he was not catastrophically impaired.
J.A. then sought funding to complete his own CAT assessments under s. 25(1)5 of the 2010 Statutory Accident Benefits Schedule (SABS), which is a shall-pay provision. Funding was denied on the basis that there was no coverage for rebuttal reports.
J.A. disputed this denial at the Licence Appeal Tribunal and Adjudicator Jesse Boyce considered the dispute both initially and again on reconsideration. Both times, Adjudicator Boyce found that, although funding for rebuttal reports, as they were once referred to under the 1996 SABS, had been eliminated by the 2010 amendments, the insured person had a substantive right to be assessed and the request for funding in this case was not a true rebuttal report given this would be J.A.’s first request for funding. He awarded partial funding for J.A.’s CAT assessments.
Aviva appealed to Divisional Court. Its position was that the word “preparing an application under s. 45” under s. 25(1)5 of the SABS imposed a temporal or chronological requirement such that an insurer is only obligated to pay for an insured person’s CAT assessments if they precede an application for CAT determination (OCF-19) but not after.
The Divisional Court dismissed Aviva’s appeal and found no error in the LAT’s decision and noted that “preparation” of an application does not cease once the formal document for initiating that application has been submitted but rather, preparation continues until the CAT determination is decided on a final basis.
The Court further held that the LAT’s interpretation of s. 25(1)5 was consistent with the statutory scheme as a whole and consistent with the remedial objectives of the 2010 SABS. The SABS is consumer protection legislation and should be interpreted in a broad and purposive manner.
This is the first appellate decision regarding funding for an insured person’s catastrophic assessments following the 2010 amendments to the SABS.
