Aviva Insurance Company Of Canada c Danay Suarez, 2021 ONSC 6200 – Insurance


Following a motor vehicle accident in 2013, Danay Suarez submitted an accident benefits claim under the
Statutory Accident Benefits Schedule – Effective September 1, 2010, Reg. 34/10 (the “Calendar“) to its insurer, Aviva Insurance Company of Canada (” Aviva “). The application included four submitted chiropractic treatment plans which Aviva refused on the grounds that they were unreasonable and necessary to treat the related injuries. to Ms. Suarez’s accident.

Following these refusals, Ms. Suarez asked the License Appeal Tribunal (“LAT”) to resolve their dispute. Although Ms. Suarez did not incur the expenses associated with these treatment plans prior to the hearing, the LAT ultimately concluded that the treatment plans should have been approved and ordered that they be payable with interest.

Aviva requested a reconsideration of the LAT decision on the basis that the arbitrator erred in determining eligibility by failing to consider whether benefits had been paid prior to the hearing. The request for reconsideration was ultimately dismissed. Arbitrator Grant upheld his decision to approve the treatment plans in question and noted that an arbitrator is authorized to find that the treatment is reasonable and necessary and to order that a benefit be payable provided that the order complies with the Calendar.


Following the decision of the LAT in first instance (DS v. Aviva Insurance Canada, 2020 CanLII 30433 (TAM)) and its Reconsideration Decision (DS v. Aviva Insurance Company of Canada, 2020 CanLII 45478 (TAM)), Aviva appealed from the Divisional Court. Aviva argued that the LAT arbitrator erred in law and appealed on the following grounds:

(1) There was no evidence before the LAT of the expenses incurred by Ms. Suarez prior to the hearing within the meaning of Art. 3 (7) of Calendar, and

(2) The LAT did not have the jurisdiction to order Aviva to pay the expenses incurred by Ms. Suarez after the end of the hearing.


Aviva argued that in the absence of a finding that an expense should be “deemed incurred” pursuant to s. 3 (8) of
Calendar, the LAT did not have the power to order the payment of expenses “incurred” by Ms. Suarez, within the meaning of Art. 3 (7) (e) of the Calendar, before the LAT hearing.

Aviva further argued that the TAMP was function functionfor payment of expenses incurred after the date of the hearing, meaning that they did not have jurisdiction to order Aviva to make payment upon the occurrence of a future event. While the court found that Ms Suarez is allowed to complete her application after the hearing by incurring a processing fee, she argued that she should be allowed to take steps after the hearing to issue denials consistent with the

In contrast, Ms. Suarez argued that LAT has broad legislative power and flexible remedial powers under that statutory power to resolve disputes between the insurer and claimants. She argued that a LAT decision that an insured is entitled to coverage for treatment supersedes an insurer’s approval of the treatment plan in dispute. Therefore, the only effective remedy available would be an order requiring an insurer to pay for the proposed treatment once it has been initiated in accordance with the Calendar. This remedy would also support the legislative objective of Calendar.

Ms. Suarez also argued that the TAMP order did not violate the doctrine of function function since the fee and the amount are separate issues, each subject to an independent decision. Further, she argued that a benefit eligibility order is final and enforceable. Therefore, an insurer authorized to take post-hearing action to issue denials would effectively thwart LAT’s dispute resolution process.

In support of Ms. Suarez’s position, the Ontario Trial Lawyers Association (“OTLA”) and the Coalition of Citizens with Disabilities – Ontario and Health Justice Program (“CCD”) provided submissions. The third speaker, TAMP, did not take a position.

The OTLA argued that Aviva sought to overturn decades of existing practice and jurisprudence, and that its proposed interpretation of the Calendar violated the statutory objective as consumer protection legislation. They also argued that the relief sought by Aviva would render LAT’s dispute resolution function inaccessible to most claimants.

CCD argued that the Calendar does not expressly specify when the processing costs must be incurred and that the legislative provisions must be interpreted and applied in such a way as to promote access to justice. Since there is an inherent power imbalance between claimants and their insurers, the requirement that health care expenses must be incurred before accessing the APR would have a negative impact on people with disabilities at home. low income.

Result and reasoning

The appeal was ultimately dismissed by the court. Payment for the treatment plans in question was due when incurred as defined in the Calendar, and interest is payable once it has been incurred and payment is overdue in accordance with the Calendar.

The Court reiterated its position that the LAT had broad remedial powers to resolve accident benefits disputes, stressing that the Court must be aware of the remedial purpose of the legislation as legislation on the protection of workers. consumers.

The Court concluded that TAMP’s orders approving treatment and allowing claimants to incur and submit treatment costs are the only effective remedy against a denied treatment plan. If Aviva’s position were accepted, claimants would be required to fund disputed treatment plans before applying to LAT and would be limited to pursuing payment for the only treatment they can afford to fund themselves. Claimants with limited or no access to funds would be at the mercy of the goodwill of their insurer, which is the very imbalance of power that the legislation aims to circumvent.

Further, the Court concluded that allowing an insurer to issue a compliant denial following a LAT hearing would effectively render s. 38 (11) of the Calendar meaningless and that the results of these hearings would be moot. However, the Court reiterated that determinations of entitlement and quantum are mutually exclusive issues. Therefore, although a decision regarding the entitlement has been made by TAMP, the expenses still need to be incurred by Ms. Suarez before they become due. Aviva would not be precluded from raising disputes regarding invoices submitted and expenses incurred, including payment for treatments in excess of policy limits.

The parties had agreed to costs set at $ 5,000, HST included, and were ordered to pay Ms. Suarez.

Access to justice

This is an important decision for accident benefits claimants. He says the annex is consumer protection legislation, helping vulnerable accident victims access the benefits they need and are entitled to, as well as other principles of access to justice. Gluckstein Avocats is proud to have been part of the legal team representing the stakeholder, OTLA. Our top priority is to defend our clients who have suffered traumatic injuries. The move is a step in the right direction to ensure accident benefits claimants are protected when they need it most.

The content of this article is intended to provide a general guide on the subject. Specialist advice should be sought regarding your particular situation.

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Justin D. O'Neill

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