*Since the writing of this blog the decision has been refused LAT reconsideration/rehearing and has not been overturned.


This was a reconsideration by Executive Chair Linda Lamoureux of a LAT adjudicator’s decision in the case, Y.D. v. Aviva Insurance Canada. In this reconsideration, the applicant claimed that the Tribunal should have applied the equitable doctrine of estoppel by convention to require Aviva to continue to pay her attendant care benefits (“ACBs”).

Executive Chair Lamoureux denied the applicant’s request and held that granting such relief would undermine mandatory statutory provisions under the Schedule. Further, even if such relief could be granted, the present case did not meet the test in order for estoppel by convention to be applied, as outlined in Ryan v. Moore [2005] 2SCR 53.

The Facts

In December 2015 the applicant, Y.D., was involved in a pedestrian/motor vehicle accident where a tow truck ran over her foot. In January 2016 she began receiving ACBs from Aviva in the amount of $3000.00 per month. Her care was being provided by her husband, S.D., who was a licensed physician.  Three months later in April 2016, Aviva wrote to Y.D. requesting employment information or pay stubs to prove S.D.’s economic loss in order to show that the ACBs were properly “incurred” within the meaning of s. 3(7)(e) of the Schedule.   Y.D.’s counsel responded by stating that S.D. “is a medical doctor and more than qualified to provide attendant care services to [Y.D.].” In doing so, Y.D.’s counsel appeared to suggest that Y.D.’s expenses were properly “incurred” on the basis that they satisfied s. 3(7)(e)(iii)(A) of the Schedule—that S.D. provided care in the course of the profession in which he would ordinarily have been engaged but for S.D.’s accident.

Aviva appeared to accept this explanation and did not further comment on the issue respect to whether the expenses were properly “incurred.” Instead, Aviva stated that it erred in processing Y.D.’s application and , given that Y.D. had additional coverage, Aviva doubled her monthly benefit from to $6,000.00. Further, Aviva included a cheque covering the past shortfall and notified Y.D. it was scheduling an insurer’s examination (“IE”). The IE took place on May 30, 2016, and the examiner opined that Y.D. did not require an ACB. As a result, Aviva wrote to Y.D. on June 14, 2016 informing her that it would not pay any ACBs beyond June 30, 2016.

Y.D. then consulted a different occupational therapist, Lani Legaspi, who submitted a new Form 1 assessing Y.D.’s monthly ACB at $9,081.36. Y.D. made further claims related her ACBs with respect to her care between May 23, 2016 and June 22, 2016, in addition to asking Aviva to pay her $1,971.78—the cost of her examination by Ms. Legaspi. Aviva denied both submissions. Aviva also explained to Y.D. that her husband’s services did not appear to be “incurred” within the meaning of the Schedule.

At this point, Aviva had paid Y.D. over $30,000.00 in ACBs.

The Tribunal’s Decision

Y.D. raised three issues with the Tribunal, all of which were resolved in Aviva’s favour.

First, on the issue of ACBs, Y.D. claimed she was entitled to a monthly ACB of $6,000.00 from May 23, 2016 to July 27, 2016, after which she was entitled to a monthly ACB of $1,797 until December 31, 2016. The Tribunal denied this claim by holding that Y.D. failed to prove that her expenses were properly “incurred” under s. 3(7)(e) of the Schedule.

Second, Y.D. claimed she was entitled to $1,971.78, the cost of her examination with Ms. Legaspi. The tribunal held this expense was not reasonable or necessary and offered four reasons for its conclusion.

Third, Y.D. argued that the Tribunal should apply the equitable doctrine of estoppel by convention to require Aviva to continue to pay her ACBs on the basis that it would be inequitable for Aviva to stop paying Y.D. ACBs after Aviva had been paying the benefits for months. The Tribunal held that it did not have the jurisdiction to apply the rules of equity.

Reconsideration Decision

In the reconsideration before Executive Chair Lamoureux, Y.D. only raised a challenge with respect to her third claim—that the Tribunal has an equitable jurisdiction that it should have applied to require Aviva to continue to pay her ACBs. Adjudicator Lamoureux did not agree.

Ms. Lamoureux found that the parties’ disputes had been resolved “in accordance with the Schedule” as required under Section 282(4) of the Insurance Act, R.S.O., c. I.8., and that Y.D. failed to prove that her expenses were “incurred”  under s. 3(7)(e). Ms. Lamoureux stated that allowing Y.D. to rely  on estoppel would override the Schedule and undermined the purpose of s. 3(7)(e). Namely, to “provide a check on payments to family care-givers,” as stated by the court in the 2013 Court of Appeal decision of Henry v. Gore Mutual Insurance Company.

Even if the requested relief could be granted, Ms. Lamoureux stated that Y.D.’s case fell short of the test outlined in Ryan v. Moore [2005] 2 SCR 53, where the Supreme Court of Canada outlined the three criteria for the application of estoppel by convention:

  1. The parties’ dealings must have been based on a shared assumption of fact or law;
  2. A party must have conducted itself and relief on such shared assumption; and
  3. It must also be unjust or unfair to allow one of the parties to resile or depart from the common assumption, and the party seeking to establish estoppels therefore has to prove that detriment will be suffered if the other party is allowed to resile from the assumption since there has been a change from the presumed position.

The court in Ryan also noted the “critical requirement” is that at the material time both parties must be of a “like mind,” that there is a “mutual assent” in the sense that “each is aware of the assumption of each other.”

In the present case, Ms. Lamoureux found that neither of the parties were of “a like mind.” Aviva acknowledged that its initial determination to provide Y.D. with ACBs was a mistake because the initial file adjuster misinterpreted s. 3(7)(e) of the Schedule. Several months later, Aviva changed its position and held that the submitted expenses did not meet the definition of “incurred” expenses in s. 3(7)(e) of the Schedule.

As such, The Executive Chair found that Aviva’s initial but mistaken determination did not give rise to a situation where Y.D. and Aviva had a mutually shared assumption. Therefore, estoppel by convention could not be enforced.

In her concluding remarks, Ms. Lamoureux stated that she failed to see how Y.D. changed her legal position as a result of Aviva’s initial determination, or how she suffered any detriment as a result of Aviva adjusting that determination. Y.D. preferred to receive care from her husband “over an outsider,” and did not receive care from anyone else before or after Aviva changed its position.  In other words, her choice of caregiver was unconnected to Aviva’s initial determination.

Further, S.D. acknowledged that he had never been paid for his services, nor did he have an expectation for payment. Y.D. therefore never had any attendant care expenses for which she should have been reimbursed through ACBs.

In light of this evidence, such a plea for equity by Y.D. was found by Ms. Lamoureux to be “brazen,” as she had received almost $30,000.00 in ACBs for services that her husband provided to her for free, and demanded Aviva continue to provide her with those same benefits.

The Executive Chair’s reconsideration decision confirms that a mistaken payment does not give rise to a legitimate basis to claim equitable relief on the basis of estoppel under the Schedule at the LAT.

If you have a question about this blog or a similar file, please contact Paul Irish.