Kyrylenko v. Aviva Insurance Canada, 2021 ONSC 4929

Justices Swinton, Corbett, and McKelvey of the Superior Court of Justice heard the appeal of Kyrylenko v. Aviva Insurance Canada from the decision of the License Appeal Tribunal (“LAT”) denying treatment plans for the appellant under section 38 of the Statutory Accident Benefits Schedule (“SABS”). The issue in this appeal is whether the adjudicator erred by failing to apply section 38(11) of the SABS to the two treatment and assessment plans that were claimed by the appellant.


On September 11, 2017, two OCF-18 treatment and assessment plans were submitted by the appellant to the respondent insurer. The claims were rejected by the insurer on November 16, 2017.

Section 38(8) of the SABS states the following:

(8) Within 10 business days after it receives the treatment and assessment plan, the insurer shall give the insured person a notice that identifies the goods, services, assessments and examinations described in the treatment and assessment plan that the insurer agrees to pay for, and the insurer does not agree to pay for and the medical reasons and all of the other reasons why the insurer considers any goods, services, assessments and examinations, or the proposed costs of them, not to be reasonable and necessary.

Further, section 38(11) of the SABS states the following:

38(11) If the insurer fails to give a notice in accordance with subsection (8) in connection with a treatment and assessment plan, the following rules apply:

1. The insurer is prohibited from taking the position that the insured person has an impairment to which the Minor Injury Guideline applies.

2. The insurer shall pay for all goods, services, assessments and examinations described in the treatment and assessment plan that relate to the period starting on the 11th business day after the day the insurer received the application and ending on the day the insurer gives a notice described in subsection (8).

Based on section 38(8) of the SABS, the respondent insurer failed to provide the insured person notice within the 10-day time frame.

The appellant’s entitlement to the two benefits was first heard by an adjudicator on February 12, 2019. The hearing dealt with the appellant’s claim for physiotherapy treatment of $1,232.12 as well as a claim for an in-home assessment for the sum of $1,521.26. The claim for the in-home assessment was in relation to an assessment that was conducted on October 30, 2017. The physiotherapy treatment began prior to the date on which the insured made a claim to their insurer.

The appellant’s claims were initially denied, but the appellant asked for a reconsideration of their claim, referring to their argument under section 38 of the SABS. With respect to the OCF-18 in the amount of $1,232.12 for physiotherapy treatment, the adjudicator stated that there were problems with some of the expenses and it was unclear when they had been incurred. Section 38(2) of the SABS does not require payment for expenses before a treatment plan is submitted. Further, following the Supreme Court of Canada decision of Smith v. Co-Operators, which requires the applicant to prove its claim despite deficiencies, the adjudicator concluded that the proposed expenses were not reasonable and necessary.

With respect to the OCF-18 in the amount of $1,521.26 for an assessment of attendant care needs, the tribunal initially failed to address the issue under section 38(11) of the SABS. On reconsideration, the adjudicator found that there was no evidence that attendant care benefits were needed by the applicant. There was no evidence that the applicant’s mother or sister were professional personal care workers and the appellant failed to submit any evidence that the mother and sister suffered economic loss, as required under section 19(3) of the SABS. Therefore, the adjudicator found that the proposed OCF-18 was not reasonable and necessary.


The parties agreed that pursuant to section 11(6) of Schedule G of the License Appeal Tribunal Act, SO 1990 c. C.12, an appeal from a decision of the tribunal relating to a matter under the Insurance Act may be made on a question of law only. The applicable standard of review in a statutory appeal from the LAT is correctness.

With respect to the OCF-18 in the amount of $1,232.12 for physiotherapy treatment, the respondent insurer argued that it cannot be held responsible under section 38(11) for any amounts that pre-date eleven business days following the submission of the claim. The insurer submitted that this claim was properly dismissed by the adjudicator because the appellant failed to establish which amounts were incurred during the relevant timeframe.

Justices Swinton, Corbett, and McKelvey note that the adjudicator failed to address the fact that there were expenses incurred during the time frame covered by section 38(11). The adjudicator also stated that the proposed expenses were not found to be reasonable and necessary, but section 38(11) does not include that requirement. Section 38(11) requires an insurer to pay “for all goods, services, assessments and examinations described in the treatment and assessment plan.” The Court concluded that section 38(11) was comparable to consumer protection legislation in that it was designed to protect the individual where an insurer fails to respond within the prescribed time frame. It requires a broad and remedial interpretation. Therefore, the adjudicator should have asked the insured to specify which expenses were incurred during the appropriate time frame and ordered payment accordingly.

With respect to the OCF-18 in the amount of $1,521.26 for an assessment of attendant care needs, there was no issue with respect to the costs of the assessment being incurred within the time frame contemplated by section 38(11). The adjudicator, however, noted that there was no evidence before the Tribunal that the applicant needed attendant care benefits. Justices Swinton, Corbett, and McKelvey concluded that the issue was not whether the insured needed attendant care benefits, but rather whether an assessment was conducted and if so, whether the costs of that assessment would be covered under section 38(11).

The insurer argued that there was an inconsistency between section 38(11) and section 25(2) of the SABS. Section 25(2) states the following:

25(2) Despite subsection (1), an insurer is not required to pay for an assessment or examination conducted in the insured person’s home unless the insured person has sustained an impairment that is not a minor injury.

On appeal, the Court concluded that there was no inconsistency between the provisions of section 38(11) and section 25(2). Section 38(11) stated that if an insurer fails to give notice in accordance with subsection (8), the insurer is prohibited from taking the position that the insured person has an impairment that falls under the minor injury guideline. Therefore, even though the Tribunal initial determined that the appellant’s claim fell within the minor injury guideline, this provision of the SABS precludes them from relying on that when responding to the insured’s claim. As a result, the adjudicator erred in law when they denied the claim for the in-home assessment.

The Court granted the appeal and held that the insurer was liable for payment of all amounts relating to the period after 11 business days up until a proper denial. Whether the claimed benefits were “reasonable and necessary” was irrelevant, as was the section 25(2) prohibition with respect to in-home assessments for MIG claims. Section 38(11) created an automatic right to payment regardless of the benefit being reasonable and necessary or the claimant being in the MIG.

Justices Swinton, Corbett, and McKelvey ordered the insured to pay the sum of $1,521.26 plus those portions of the physiotherapy expenses which fell within section 38(8) of the SABS to the appellant, together with interest calculated according to the SABS.

Louis v. Poitras, 2021 ONCA 49

In Louis v. Poitras, the Ontario Court of Appeal considered the fundamental changes that are being proposed for the civil justice system. As a result of the COVID-19 pandemic, trial courts have necessarily had to prioritize criminal and family law cases to the detriment of civil cases’ timely resolution.

The 10-week jury trial in this case was supposed to have commenced on April 20, 2020. The COVID-19 pandemic did not allow for this to happen.

In July of 2020, the Plaintiff moved for an order striking the jury notices in both the tort and accident benefits actions, which the motion judge granted.
At this time, civil jury trials were not being scheduled in Ottawa, but judge-alone trials of three-weeks or less were available within the following six months. Consequently, the motion judge ordered the trials to proceed in three-week tranches, beginning in February 2021.

The Divisional Court concluded that the motion judge’s decision to strike the jury notices was arbitrary because it relied solely on the presence of delay and lacked sufficient evidence of actual prejudice to the parties.

The Divisional Court

The Divisional Court made the following three arguments in deciding that the motion judge erred in their decision to strike the jury notices:

1. The Divisional Court found that delay was not enough of a reason to strike a jury notice and there needed to be additional proof of prejudice to the parties.

2. The Divisional Court found that the right to a jury trial is subject to the overriding interests of the administration of justice and issues of practicality.

3. The Divisional Court compared the case to others where the pandemic was considered in the context of a motion to strike a jury notice. It concluded that while the courts in those cases were justified in striking a jury notice, there was an insufficient evidentiary basis here.

The Appeal – Key Takeaways

Justice Hourigan noted that the substantive right to a jury trial is qualified because a party’s entitlement to a jury trial is subject to the power of the court to order that the action proceed without a jury.

While a court should not interfere with the right to a jury trial in a civil case without just cause or compelling reasons, a judge considering a motion to strike a jury notice has a broad discretion to determine the mode of trial.

The case of Kostopoulos v. Jesshope developed the test for appellate court review. This case stated that an appellate court reviewing a decision to strike a jury notice has a very limited scope of review. It may only interfere where the decision to strike was “exercised arbitrarily or capriciously or was based upon a wrong or inapplicable principle of law.”

In Justice Hourigan’s view, the findings of the Divisional Court were erroneous and reflect a fundamental misunderstanding of the role of appellate courts in considering appeals from orders to strike jury notices.

Justice Hourigan addressed the three arguments put forth by the Divisional Court as follows:

1. The accident in this case occurred over seven years ago and at the time of the motion there was no indication of when a civil jury trial might be held in Ottawa. Accordingly, the motion judge found that the real and substantial prejudice arose from the reason of the delay.

Justice Hourigan stated that “delay in obtaining a date for a civil jury trial can, by itself, constitute prejudice and justify striking out a jury notice.”

2. While the Divisional Court purported to consider the administration of justice, it ignored the realities of the current situation.

An appeal court must respect the reasonable exercise of discretion. It impedes the proper administration of justice by second-guessing the local court’s discretionary case management decisions under the pretext of an arbitrariness analysis.

3. The Divisional Court distinguished other decisions regarding striking jury notices on the basis that in those cases, the motion judges had evidence regarding the particular circumstances of the local civil list such as directives issued by the court and information provided to the court by the Regional Senior Judge.

The motion judge’s reasons show that he undertook a detailed analysis of Ottawa’s situation and reached his own conclusion regarding the status of civil jury trials in the city. A formal notice in Ottawa stated that civil jury trials would not proceed until at least January 2021. Further, only a limited number of courtrooms in Ottawa had been retrofitted with plexiglass dividers at the time of the motion, and no plan had been finalized to accommodate jury trials. Further, the conversion of a jury assembly room into a jury deliberation room in the Ottawa courthouse would permit only a single jury trial to proceed at any given time.

This proves that the motion judge turned his mind to the local conditions and made an unquestionable finding that it was unknown when or how a jury trial might be heard in these matters.

Justice Hourigan concluded that the motion judge was correct in striking the jury notices given the totality of the circumstances.

Williams v. Richard, 2018 ONCA 889

The defendant hosted his late friend for after-work drinks at his mother’s home. The friend consumed 15 cans of beer in three hours before driving home and loading his children and baby sitter in his vehicle to drive the baby sitter home. On the way back to his residence, the friend was involved in a serious accident which killed him and allegedly caused injury to his children. Two court actions were commenced by the deceased’s children and their mother: one for personal injuries sustained by the children; and the other for damages pursuant to the Family Law Act. On a motion for summary judgment, the motion judge dismissed both claims, finding that the requisite duty of care had not been established, and even if it were established, it would have ended once the friend arrived home to pick up his children and the baby sitter. The Court of Appeal affirmed the appropriate duty of care analysis as that set out in Childs v. Desormeaux and held that the motion judge failed to give weight to distinguishable facts between Childs and the case at hand. Furthermore, the motion judge erred in law by accepting that as a general rule, a drunk guest’s safe return home ends the duty of care. The Court of Appeal set aside the motion judge’s order and ordered that the matters proceed to trial.

Imeson v. Maryvale (Maryvale Adolescent and Family Services), 2018 ONCA 888

At trial, the defendant was found vicariously liable for sexual abuse alleged to have been committed against the plaintiff by its former employee. The defendant appealed on the basis that the trial judge erred in admitting the opinion evidence of a mental health clinician who gave evidence at trial as a participant expert. The court held that the plaintiff’s treating doctor, who had not delivered a Rule 53 expert report, ought not to have been permitted to provide opinion evidence as to whether the alleged sexual assaults occurred (liability) and whether the plaintiff suffered harm caused by such assaults (damages). Furthermore, the treating doctor’s expert opinions going to the issues of liability and causation failed to satisfy the threshold requirements for admissibility under the first step of the test in R v. Mohan and ought to have been excluded under the second step of the admissibility test because the prejudicial effect of the evidence outweighed its probative value. The appeal was allowed and a new trial ordered.