M.B. v. Aviva Insurance Canada, 2017 CanLII 87160 (ON LAT)

A recent LAT decision was overturned and the law regarding compliance with the notice requirement under section 44 (for insurers’ examinations) was clarified.

Date Heard: December 12, 2017 | Full Decision [PDF]

In this accident benefits claim, Executive Chair Lamoureux rendered a reconsideration decision overturning a previous LAT decision that the claimant was barred under section 55(1) of the SABS from applying to the LAT given her failure to attend insurers’ examinations (IEs).  The claimant’s position was that the insurer’s request for an IE was not in compliance with section 44 of the SABS because it did not provide “medical and any other reasons” for the IEs.

Executive Chair Lamoureux held that the insurer, Aviva Insurance Canada, failed to comply with section 44 and stated that “an insurer satisfies its obligation to provide its ‘medical and any other reasons’… by explaining its decision with reference to the insured’s medical condition and any other applicable rationale”.  That explanation ought to include questions about the insured’s condition that the insurer does not have but requires to make a determination regarding an entitlement to an accident benefit.  The insurer should also refer to the specific benefit or determination at issue.  Should the insurer simply provide a blanket and generic request for an assessment without substantiating the basis or reason for same is not in compliance with section 44.

Executive Chair Lamoureux further stated: “Ultimately, an insurer’s ‘medical and any other reasons’ should be clear and sufficient enough to allow an unsophisticated person to make an informed decision to either accept or dispute the decision at issue”.

Aviva’s notice was determined to be insufficient.  Should the injured party’s counsel come across similar insufficient notices, consider the benefits of refusing to allow the claimant to attend the IEs in question, thereby preventing the insurer from requisitioning reports which are likely to be unsupportive to the claimant.  Alternatively, claimants’ counsel may allow the claimant to attend the IEs in question, but only under protest and with the looming threat of a special award should the insurer intend to rely on the findings of the IEs for which improper notice was provided.


Read the full decision [PDF]
Written by

Steven Arie Glowinsky was called to the Ontario Bar in 2010 and is the Founder and Principal Lawyer at Glowinsky Law in Toronto, ON.