Ontario appeal court denies Aviva Canada’s request to alter ruling

The Court of Appeal for Ontario has denied a request by Aviva Canada to “withdraw, alter or modify” its decision in Pastore v. Aviva Canada Inc. based on a Supreme Court of Canada ruling in July.

In Pastore v. Aviva Canada Inc., released last September, the appeal court found in favour of a woman claiming catastrophic impairment from her insurer, Aviva Canada. After being hit by a car in 2002, the woman’s broken ankle failed to heal properly, resulting in several surgeries and an eventual right knee replacement.

The woman applied to Aviva Canada in 2005 to have her injuries classified as “catastrophic impairment.” A designated assessment centre (DAC) assessment was carried out.

However, Aviva Canada did not accept the DAC assessment — a major issue was whether “marked impairment” in one category could lead to a catastrophic impairment designation, or if all four categories needed that same classification. The disagreement resulted in mediation and then arbitration.

The Court of Appeal ruled it was not necessary to have all four categories considered as marked impairments for a catastrophic impairment designation.

In its most recent ruling on Friday, the appeal court notes that new counsel for Aviva Canada submitted a letter in November seeking to bring an SCC ruling to its attention.

That ruling, Rogers Communications Inc. v. Society of Composers, Authors and Music Publishers of Canada, involved copyright to music transferred over the internet. The SCC applied the correctness standard of review — rather than the reasonableness standard — to a decision by the Copyright Board because the legislative scheme gave concurrent, original jurisdiction to either the Board or to a court.

In the case involving Pastore, Aviva Canada sought to rely on a provision of the legislative scheme in Ontario’s  Insurance Act that gives concurrent jurisdiction to adjudicate following both assessment of the claimant and mediation, to an arbitrator or to the court.

In response, counsel for Pastore cited four reasons why Rogers would not change the standard of review in the case at bar: Rogers affirmed an earlier ruling that the standard of review of the Board was correctness, meaning Aviva Canada could have argued that standard when the appeal was heard, but did not; the concurrent jurisdiction statutory scheme in Pastore differs from the scheme under the Copyright Act in that it is the arbitrator’s jurisdiction, not the director or director’s delegate, is concurrent with that of the court; there is a strong privative clause in the Insurance Act, although not in the Copyright Act; and the court in Rogers stated the presumptively deferential approach in an earlier decision continues to apply.

“It is clear that the parties do not agree that an error has been made on the issue of standard of review that the court is required to correct,” the appeal court notes.

“Although this court is not functus officio because the order of the court has not yet been taken out by the parities, this is not the type of rare circumstance where it is in the interests of justice to withdraw the reasons of the court and rehear the case on its merits,” the ruling adds.