Aviva Insurance Company of Canada v Macdonald, 2022 NBCA 68
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By: Chloe Jardine (Articled Clerk)
In the November edition of “In Brief,” we reported on MacDonald v. Aviva, 2022 NBQB 140. In that case, Joyce MacDonald, who was injured in a motor vehicle accident, was found to be entitled to weekly Section B loss of income benefits from her insurer (Aviva Insurance Company of Canada) despite the fact that she had returned to work for 13 months after the accident. This decision was recently appealed, and we now have an update for our readers
Ms. MacDonald suffered a fractured sternum and injuries to her left hip, lower back, left knee and neck because of a motor vehicle accident on February 7, 2011. She received weekly Section B loss of income benefits for 104 weeks following the accident. In May 2013, she began a gradual return to work program and maintained approximately 85% of her pre-accident capacity. A Functional Capacity Evaluation completed in June 2014 found Ms. MacDonald met the physical demands of her job; however, due to continued pain, Ms. MacDonald was placed off work indefinitely by her family physician in September 2014. She applied to resume receiving weekly Section B loss of income benefits, which was denied by her insurer.
There are two factors taken into consideration for Section B loss of income benefit entitlement: (1) the injury must immediately prevent the insured from engaging in any reasonable suitable occupation or employment (including employment other than the insured’s primary occupation), and (2) the injury must continuously prevent the insured from performing the essential duties of their own employment. The original decision focused on the interpretation of “continuously,” and found Ms. MacDonald to be entitled to weekly Section B loss of income benefits.
The Court of Appeal disagreed with the findings of the motion judge, stating that an insured has a contractual duty to return to work if medically cleared to do so. There is no unconditional guarantee of Section B loss of income benefits; the wording of the policy does not penalize or create prejudice against an insured for returning to work, but rather prevents an insured from receiving payments if they are medically cleared to return to work but do not do so.
The appeal by Ms. MacDonald’s insurer, Aviva Insurance Company of Canada, was allowed, and summary judgment was granted in its favour. Ms. MacDonald was found to no longer be entitled to Section B loss of income benefits beyond those already paid.