MacDonald v Aviva, 2022 NBQB 140
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By: Chloe Jardine (Articled Clerk)
Joyce MacDonald (“the Plaintiff”) suffered injuries as a result of a motor vehicle
accident on February 7, 2011. Due to her injuries, she was unable to return to her job as a
nurse at Campbellton Regional Hospital for 104 weeks. The Plaintiff received Section B loss
of income benefits from Aviva Insurance Company of Canada (“the Defendant”) during this
After 104 weeks, the Plaintiff returned to work through a gradual return to work
program. The Plaintiff continued to work for a period of 13 months, before she had to stop
working permanently due to her injuries in September 2014. She attempted to resume her
Section B weekly payments, claiming she was prevented from pursuing employment due to
her injuries, but this request was denied by the Defendant. The parties turned to the Court to
determine if the Plaintiff was entitled to continue receiving these benefits given that she had
returned to work for over a year following the accident.
To make this determination, the Court needed to ascertain whether the Plaintiff’s
injuries had “continuously” prevented her from working. The Plaintiff argued that, though
she returned to work, she was never able to successfully fulfil her expected duties as a result
of the injuries sustained. The Court found that a failed attempt to return to work, regardless of
the length of said return period, should not prevent an insured from being eligible to receive
further weekly benefits.
The Court found the insurance policy to be ambiguous, so the interpretation was
found to be in favour of the Plaintiff. With this, the Plaintiff was entitled to weekly Section B
retroactively to September 2014. On October 19, 2022, a motion for leave to appeal was
allowed and we will update our readers on the result of the appeal.