22-year old accident benefit claims case is ongoing in Ontario
Published: November 1, 2018
Updated: February 27, 2019
Author: Luke Jones
CATEGORY: Car Insurance
An auto insurance case a quarter of the century in the making is still open without a conclusion. The accident benefit claimant who was deemed to be not disabled by an assessment centre 22 years ago could still claim, according to Ontario’s Divisional Court.
In 1996, Dharam Sidhu was involved in a collision and received income replacement benefits. These payments were under no obsolete accident benefit regulations. He agreed to visit a designated assessment centre for evaluation and was deemed to not be disabled. The Aviva Canada v. Sidhu case was detailed by Judge Barbara Conway of the Ontario Superior Court of Justice.
The designated assessment centre (DAC) system was abolished in 2006, a decade after Aviva Canada told Sidhu they would stop paying income replacement. For nearly two decades, the auto insurance case was closed. However, in 2014 Sidhu brought his situation to the attention of the Financial Services Commission of Ontario (FSCO).
Aviva Canada instantly requested the claim be tossed out by an arbitrator because the two-year statute of limitations had passed. The insurer was in for a surprise as the FSCO arbitrator ruled the claim was not under the statute because Aviva’s letter in 1996 did not inform Sidhu in time. Additionally, the company did not tell Sidhu that the disputed claim must go to mediation.
As the case as moved through and been upheld by other courts, Aviva has contested that judges are using a “contextual approach … considering factors outside the notices to determine whether the insured was aware of the time and process for disputing an insurer’s refusal to pay benefits.”
Conway rejects the insurer’s claim, writing in these cases “the analysis must focus on whether the insurer provided a proper notice of refusal and that outside circumstances should not be considered in determining whether the insurer had complied with its notice obligations.”
Divisional Court judges Phillip Sutherland and Thomas Heeney agreed with Conway’s decision.