Neutral Citation: 1993 ONICDRG 81
File No. A-004685
ONTARIO INSURANCE COMMISSION
BETWEEN:
RAJENDRA RAMJEET
Applicant
and
STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY
Insurer
DECISION on PRELIMINARY MOTION
The Applicant, Rajendra Ramjeet, was injured in a motor vehicle accident on August 1, 1990. He applied for and received accident benefits from the Insurer payable under Ontario Regulation 672 (the "No-Fault Benefits Schedule"), enacted under the Insurance Act, R.S.O. 1990, c. I.8.
Weekly income benefits were paid until March 15, 1993, when they were terminated. Mediation was unsuccessful in resolving the dispute between the Applicant and the Insurer, and the Applicant applied for arbitration under the Insurance Act.
The issues to be decided in this preliminary motion are:
May the Insurer require an examination of the insured person under section 23(2) of the No-Fault Benefits Schedule after the Insurer has terminated weekly income benefits?
Does section 23(2) of the No-Fault Benefits Schedule permit examinations of the insured person by more than one qualified medical practitioner?
The Applicant also seeks reinstatement of his weekly income benefits pending the disposition of this case on its merits.
The Applicant also claims his expenses incurred on the motion.
Result:
The Insurer may require an examination of the insured person under section 23(2) of the No-Fault Benefits Schedule after it has terminated weekly income benefits.
Section 23(2) of the No-Fault Benefits Schedule permits examinations of the insured person by more than one qualified medical practitioner.
I have no authority to grant an interim order reinstating weekly income benefits pending the disposition of this case on its merits.
The preliminary motion was heard at North York on November 15, 1993, before me, K. Julaine Palmer, arbitrator.
Counsel on the Motion:
Applicant's Representative:
Michael Canning Barrister and Solicitor
Insurer's Representative:
Harry Brown Barrister and Solicitor
The parties filed two medical briefs and a correspondence brief on the motion.
Evidence and Findings:
1. May the Insurer require an examination of the insured person under section 23(2) of the No-Fault Benefits Schedule after the Insurer has terminated weekly income benefits?
Section 23 of the No-Fault Accident Benefits Schedule sets out the requirements for certificates from medical practitioners or psychological advisors in subsection (1), and in subsection (2) describes the Insurer's right to require an examination of the insured person. The remaining subsections deal with the cost of examinations and certificates:
23.--(1) Unless waived by the insurer, the insured person or the person otherwise entitled to make a claim under Part IV shall furnish a certificate from a qualified medical practitioner or psychological advisor of the insured person's choice as to the cause and nature of the injury for which the claim is made, an estimate of the duration of the disability caused by the accident and a treatment plan.
(2) In respect of claims under Part IV, the insurer may, on reasonable notice, require an examination of the insured person by a qualified medical practitioner, psychological advisor or chiropractor as often as it reasonably requires, and require an autopsy of a deceased insured person in accordance with the law relating to autopsies.
(3) The insurer will pay the reasonable cost of examinations under subsection (1) if the cost is not payable under any insurance plan or law or under any other plan or law.
(4) The insurer will pay the cost of all certificates under subsection (1) and for all examinations and certificates under subsection (2). O. Reg. 273/90, s.23.
The Applicant's counsel submitted, firstly, that the payment of weekly income benefits was a condition precedent to the Insurer's ability to request a medical examination. Secondly, he submitted that since the Insurer had terminated the Applicant's weekly benefits, it had taken the position that it no longer considered the Applicant to be an "insured person" under section 224(1) of the Insurance Act. The Applicant further alleged, thirdly, that the Insurer had breached its duty of utmost good faith (uberrima fides) to the Applicant by terminating the Applicant's weekly income benefits without current medical information and by waiting a further 7½ months after curtailing the weekly income benefits to request a medical examination. By breaching this duty, the Applicant contended, the Insurer could not thereafter be allowed to seek or have the benefit of any of the policy's provisions. The Applicant cited the case of Rees v. Pilot Insurance, (1987) 1987 CanLII 9936 (ON HCJ), 26 C.C.L.I. 127 (Ont. Dist.Ct.) in support of this argument.
Regarding the first submission, in my view, there is no provision in the No-Fault Benefits Schedule which would remotely suggest that the Insurer must continue to pay weekly income benefits if it wishes to exercise its right under section 23 of the Schedule to an examination of the claimant. The Applicant in this proceeding is asserting a claim to Part IV benefits. It therefore is entirely open to the Insurer to "require" an examination of the insured person.
Secondly, the termination by the Insurer of weekly income benefits has no effect on the insured person's status as an insured person whatsoever. Insured persons may receive some no-fault accident benefits, particularly under section 6 of the Schedule, for years longer than they may be entitled to weekly income benefits; however, they remain "insured persons" for the purposes of the Schedule.
Thirdly, on the documentary evidence before me at the hearing of the preliminary motion, I find no evidence of any breach of the duty of utmost good faith by the Insurer. I find that medical information relating to the Applicant flowed to the Insurer throughout the period after the termination of his weekly income benefits, particularly after the pre-hearing conference in this matter. I find entirely plausible the Insurer's desire to obtain, prior to the hearing, current medical expert opinion from medical practitioners whose opinion it values. I find no evidence of unreasonableness in the requests of the Insurer, although (and counsel concedes this point) the requests came "somewhat late".
2. Does section 23(2) of the No-Fault Benefits Schedule permit examinations of the insured person by more than one qualified medical practitioner?
For convenience, I set out section 23(2) of the No-Fault Benefits Schedule again:
(2) In respect of claims under Part IV, the insurer may, on reasonable notice, require an examination of the insured person by a qualified medical practitioner, psychological advisor or chiropractor as often as it reasonably requires, and require an autopsy of a deceased insured person in accordance with the law relating to autopsies.
The Applicant maintained in his submissions that the correct interpretation of section 23(2) would mean that an insurer could require multiple medical examinations, but only by a single practitioner. I do not agree with this contention. I find no indication in section 23 of the No-Fault Benefits Schedule that the Lieutenant Governor in Council intended to restrict an insurer to a single medical practitioner, chiropractor or psychologist any more than it would wish to restrict an applicant's rights, under section 23(1), to a single medical practitioner or psychological advisor. The provisions of section 23(2), when read in their ordinary and grammatical sense, taken in their entire context, in harmony with the scheme of the legislation, do not admit of the restrictive interpretation proposed by the Applicant.
I agree with the comments of Senior Arbitrator Naylor in the Patricia Scott v. Toronto Transit Commission (Markel Insurance) decision (O.I.C. File No. A-001116, dated September 4, 1992), when she wrote (at pp.17-18):
The exercise of the right to a medical examination under the No-Fault Benefits Schedule is inherently intrusive and an invasion of individual privacy. However, it is legislatively mandated. Neither the wording nor the intent of the provision support a narrow or unduly restrictive right of examination. [...]
[...] The regulations do not preclude an insurance company from requiring more than one examination - they expressly authorize an examination as often as reasonably required. Nor, in my view, does the provision preclude, in appropriate cases, examinations by more than one specialist or a multi-disciplinary assessment. The scope of the regulation is broad and flexible, in order to reflect the reality of the requirements of modern interactive medical practice, and to ensure than an insurance company has an effective opportunity to evaluate the applicant's medical condition.
3. Interim reinstatement of weekly income benefits pending the disposition of this case on its merits.
Administrative tribunals created by statute must take care not to exceed their jurisdiction by making orders which they have no authority to make. An elementary principle of administrative law is that such tribunals take their powers from the statute under which they are created. For administrative decision-makers in Ontario, the Statutory Powers Procedure Act is one source of rules of procedure.
By law, disputes of entitlement to no-fault benefits or the amount of benefits are to be resolved in accordance with sections 280 to 283 of the Insurance Act and the No-Fault Benefits Schedule. This principle is set out in section 279(1) of the Act:
279.--(1) Disputes in respect of any insured person's entitlement to no-fault benefits or in respect of the amount of no-fault benefits to which an insured person is entitled shall be resolved in accordance with sections 280 to 283 and the No-Fault Benefits Schedule.
Sections 20(1) & (2) and 282(3) & (4) of the Act empower arbitrators and set out the procedural framework for their decisions:
20.--(1) This section applies with respect to proceedings under this Act before (...) an arbitrator.
(2) A person referred to in subsection (1) has exclusive jurisdiction to exercise the powers conferred upon him or her under this Act and to determine all questions of fact or law that arise in any proceeding before him or her and, unless an appeal is provided under this Act, his or her decision thereon is final and conclusive for all purposes.
282.--(3) The arbitrator shall determine all issues in dispute and such other issues as the parties may agree.
(4) The arbitration shall be conducted in accordance with the procedures and within the time-limits set out in the regulations.
Section 21 of the Insurance Act authorizes the Director of Arbitrations to make rules for the practice and procedure to be observed in arbitrations:
- Subject to the procedures and time limits for the conduct of arbitrations set out in the regulations, the Director may make rules for the practice and procedure to be observed for a proceeding before him or her or before an arbitrator.
Under that authority, the Dispute Resolution Practice Code was produced.
Section 279(4) of the Act particularly speaks to the question of orders by arbitrators:
279 (4) The Director and every arbitrator shall determine issues before them by order and may make an order subject to such conditions as are set out in the order.
An arbitrator may make orders related to determining the issues, not pending a decision on those issues. Nowhere in the Insurance Act, the No-Fault Benefits Schedule, nor the Dispute Resolution Practice Code does a specific power to grant interim orders of weekly income benefits appear. As administrative decision-makers, we cannot exceed the authority expressly conferred by the statute and regulations. However, arbitrators do have the power to penalize insurers for unreasonable behaviour by using the provisions of the Special Award, found in section 282(10) of the Act. Further, I cannot find that a power to grant interim weekly income benefits is a question of a preliminary or collateral nature within my inherent jurisdiction.
There will be no order for interim weekly income benefits to the Applicant pending a decision on this case on its merits.
Expenses:
The costs of this preliminary motion will be dealt with at the conclusion of the hearing on the main issue.
Order:
The Insurer may require an examination of the insured person under section 23(2) of the No-Fault Benefits Schedule after it has terminated weekly income benefits.
Section 23(2) of the No-Fault Benefits Schedule permits examinations of the insured person by more than one qualified medical practitioner.
I have no authority to grant an interim order reinstating weekly income benefits pending the disposition of this case on its merits.
December 23, 1993
K. Julaine Palmer Arbitrator
Date