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Court Ruling Helps Accident Victims with Their Recovery

As many of you know, you pay premiums for automobile insurance and should you be injured in a car accident, your insurance company is supposed to pay for treatment that is reasonable and necessary to help you in your recovery.    

As many of you also know, insurance companies many times simply refuse to do so.   Sometimes they have no grounds to do so.   Part of our job is to dispute the denials received from your insurance company and to help you get treatment you need.

The Licence Appeal Tribunal

At the Licence Appeals Tribunal (the tribunal with whom the dispute is filed), adjudicators have pretty much held that …. Oh well … If the injured person didn’t incur the expense of the treatment before coming to the hearing, that’s too bad for them, and the denial survives.    But what if you can’t afford the treatment that will (should) help you with your recovery?   How is it fair to dismiss your application simply because you don’t have the resources to fund the treatment you require.    

On September 9, 2021, the Ontario Divisional Court released a ruling against  Aviva Insurance Company of Canada, holding that an injured person may dispute entitlement to and the cost of the denied benefits/treatment without being required to prove that they first incurred the expenses of those benefits/ treatment plans.   This might seem like something trivial, and the decision is based on an accident that happened in 2013, but it is a HUGE victory for accident victims looking for help with their recovery.  

What the Court Held

Here’s what the Court held:

“incurring” treatment expenses should not be a precondition to accessing the dispute resolution processes of the LAT.

If Aviva’s position is accepted, claimants will be required to fund disputed Treatment Plans in advance of an application to the LAT and will be limited to pursuing payment of only that treatment which they can afford to self-fund.   Claimants with limited or no access to funds will be at the mercy of their insurer’s goodwill;  this is the very power imbalance that the legislation is intended to circumvent. 

Aviva’s position is untenable on any interpretive approach to the legislation.  Not only does its proposed interpretation offend the remedial, consumer-oriented purpose of the legislation and regulations, it also ignores the clear wording of S. 280(1) of the Insurance Act which identifies entitlement and quantum as mutually exclusive issues, and s. 55(1) of the Schedule which is silent on a claimant’s failure to “incur” expenses as a restriction to initiating proceedings.”

Aviva was ordered to pay the treatment plans, once the cost had been incurred by the accident victim.

No doubt insurance companies will argue that the because the date of the accident on which the above case is based happened before the 2016 changes to the Insurance legislation, this Court ruling should not apply to more recent accidents.   Time will tell if there will be a change in attitude at the LAT.   But, folks make no doubt about it, it looks like someone, somewhere, is starting to figure out how some of the positions taken by insurance companies and by the LAT are counterproductive to the intent of the legislation – which was to make treatment available to accident victims as soon as possible to help them with their recovery.

The Court did not go so far as to say that the practice of denying the treatment plans was a deceptive act, but this decision gives us encouragement to carry on the fight.        


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