Carter v. AVIVA Insurance Company of Canada, 2021 ONLAT 19-012446/AABS-M

Full Decision

Jason Carter was injured in a motor vehicle collision on August 16, 2018. He applied to AVIVA for Statutory Accident Benefits including income replacement benefits (IRB). AVIVA denied IRB’s in April of 2019 after Jason completed a multidisciplinary suite of insurer examinations (IE) required by AVIVA.

Jason applied to the LAT contesting AVIVA’s denial of IRB’s. Prior to the hearing date, AVIVA moved for an order staying the application on the grounds that Jason did not attend a psychological IE to assess his IRB entitlement. Citing Certas v. Gonsalves, 2011 ONSC 3986, AVIVA argued that it would be procedurally unfair for them to have to defend Jason’s application without the advantage of a psychological IE.

The material factual points before the Adjudicator were:

  • AVIVA gave no formal notice to Jason that they required a psychological IE in respect of his IRB entitlement.
  • The orthopaedic assessor who participated in the multidisciplinary IE process relating to the issue of IRB had identified in his report of March 2019 that a psychological assessment should be completed in respect of the IRB entitlement assessment. Yet AVIVA did not act on that recommendation.
  • AVIVA had engaged a psychologist to conduct an IE for medical and rehabilitation benefits in April/May of 2019 without requesting any opinion on the issue of IRB.
  • Jason provided his own psychological report to AVIVA in November of 2019.
  • AVIVA’s motion for a stay pending getting a psychological IE for the IRB dispute was not filed until July of 2021.

In denying AVIVA’s motion to stay the proceeding, Adjudicator Mazerolle concluded:

  • As no psychological IE was scheduled and no Notice of Examination was issued to the insured by AVIVA, AVIVA could not rely on section 55(2) of the SABS restricting insured persons from commencing LAT Applications without first attending a scheduled IE.
  • Further, in accord with M.B. v. Aviva 2017 CanLII 87160,a Notice of Examination must meet the SABS ‘consumer protection mandate’ and that Notices should “assist insured persons to navigate disputes over accident benefits.” They are not procedural devices that can be employed to deny or delay benefits.
  • Commenting on the issue of procedural fairness as it arose in the Gonsalves case, the Adjudicator noted that the circumstances of Jason’s case were the inverse of the facts in that case where new expert reports were served several weeks before a hearing was to commence, and an adjournment was appropriate to allow time for responding reports to be generated.

A further point of note is that the Adjudicator in denying AVIVA’s motion stated that his decision might have been different had AVIVA not obtained a psychological opinion at all. In the circumstances of the case, AVIVA did have a psychological IE, just not one obtained for the specific purpose of an IRB assessment. Consequently, AVIVA would not be completely bereft of psychological expert opinion evidence relating to Jason’s assertion of disability and claim for IRB’s.

Adjudicator Mazerolle stated it was unfair to adjourn the hearing of such an important issue just before the scheduled hearing. It was reasonable for Jason to have prepared for his hearing expecting no further psychological opinion on IRB given AVIVA didn’t avail itself of the opportunity at an earlier stage in the Application process.

Written by

Jennifer Schmidtz is a licensed Paralegal at Ross & McBride LLP. She is a former Co-Chair of the OTLA Law Clerk Section.