Neutral Citation: 2003 ONFSCDRS 51

FSCO A02-000449

FINANCIAL SERVICES COMMISSION OF ONTARIO

BETWEEN:

DALINDA BORJA

Applicant

and

TTC INSURANCE COMPANY LIMITED

Insurer

DECISION ON A PRELIMINARY ISSUE

Before:

Tanja Wacyk

Heard:

December 7, 8, and 9, 2002, at the offices of the Financial Services Commission of Ontario in Toronto

Written submissions received by January 31, 2003

Appearances:

Kelley Campbell for Ms. Borja

Karen McGuire for TTC Insurance Company Limited

Issues:

The Applicant, Dalinda Borja, was injured in a motor vehicle accident on January 9, 2001. She applied for but was denied statutory accident benefits from TTC Insurance Company Limited ("TTC"), payable under the Schedule.¹ The parties were unable to resolve their disputes through mediation, and Ms. Borja applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

The Insurer raised the following preliminary issues:

1. Was Ms. Borja involved in an "accident" as defined in section 2(1) of the Schedule?

2. Can TTC rely on its notice of examinations so as to preclude Ms. Borja, under subsection 50(b) of the Schedule, from proceeding to arbitration because she did not make herself reasonably available for examinations by TTC as required by section 42 of the Schedule?

Result:

1. Ms. Borja was involved in an "accident" as defined in section 2(1) of the Schedule.

2. TTC cannot rely on its notice of examinations to preclude Ms. Borja, under subsection 50(b) of the Schedule, from proceeding to arbitration because she did not make herself reasonably available for examinations by TTC as required by section 42 of the Schedule.

WAS THERE AN ACCIDENT AS DEFINED IN SECTION 2(1) OF THE SCHEDULE ? :

BACKGROUND:

On Monday, January 9, 2001, Ms. Borja was travelling to work on a TTC bus in the area of Warden and 16th Avenue in Markham. Her destination was the home of the Mihic family where she was employed as a housekeeper and caregiver of two young children.

At the time, Ms. Borja had worked for the Mihic family on a daily basis for approximately 2½ years.

Ms. Borja also provided cleaning services on a weekly basis for another family in the Bathurst/Steeles area.

At the time, Ms. Borja lived on Spadina Road, and the entire journey to the Mihic home took her approximately two hours. She took the subway from the Spadina station to the Warden Station. She then boarded the #68 B bus travelling northbound to her destination of Warden Avenue and 16th Avenue ("Warden and 16th"). The Mihics lived south east of that intersection, at 10 Russell Road.

Ms. Borja remained on the bus when it reached the corner of Warden and 16th and turned west onto 16th. The bus then looped around, proceeding north and east until it exited back onto Warden, and continued south, back toward the intersection of Warden and 16th.

Ms. Borja ultimately got off the bus close to a stop located about 20 metres north of the intersection of Warden and 16th, on the west side. However, what occurred prior to and during her exiting the bus is in dispute, and the evidence of the parties is set out below.

EVIDENCE:

Ms. Borja:

Ms. Borja testified with the assistance of an interpreter.

Ms. Borja testified that although there was a bus stop on the north side of 16th Avenue, approximately 70 metres west of Warden, (i.e., immediately after the intersection) she regularly got off at the stop at Warden and 16th, on the west side. She conceded that this required that she spend approximately 10 extra minutes travelling around the loop, but indicated this was her preference, as she could then exit the bus approximately ten steps from the corner of Warden and 16th.

Ms. Borja indicated she was familiar with the various drivers who drove that route on different days. However, on the day at issue, the driver was someone she was not familiar with. That day, Ms. Borja was the only passenger remaining on the bus as it travelled through the loop on its way back to Warden - which she indicated was often the case.

Ms. Borja testified that she pulled the cord for her stop shortly after having passed the last stop prior to the bus turning back onto Warden. According to Ms. Borja, the driver appeared surprised to see she was on the bus and asked what she was still doing there. She stated that she simply shrugged in reply. Ms. Borja indicated that she felt the driver was irritated with her for still being on the bus. She testified that as she stood up in anticipation of getting off at the next stop, he began to drive in a weaving manner to make her fall - although she did not do so as she held onto the pole.

In cross-examination, Ms. Borja described the driving as "slow but in a way I could not take a safe step forward." She also pointed out that the road was on an incline.

Also, in cross-examination, Ms. Borja agreed that a statement she had given to the TTC² approximately 1-1 ½ months following the incident, did not mention that the driver had asked what she was doing there. However, on closer examination, the statement does say "...he was surprised I was on the bus he asked what I was doing." While the statement did not mention that the bus was weaving, Ms. Borja testified that she had mentioned this when she gave the statement.³

Ms. Borja testified that the driver then stopped about 10 - 20 metres short of her stop and began to hit the collection box saying "ticket, ticket now!!" According to Ms. Borja, the driver appeared very irritated, and his face was becoming red. He then almost stood up and demanded that Ms. Borja leave the bus.

When the driver opened the door, Ms. Borja indicated she did not want to get off at that location. She testified there were high snow banks and ice all along Warden which made it impossible to exit the bus anywhere short of the stop.

Ms. Borja stated she became afraid as the driver then took a step toward her. She testified that she then realized he would not stop at the bus stop and that she had to get off at that location.

Ms. Borja also testified that as she exited the bus she showed the driver her weekly pass as he had been asking for a ticket. The pass entitles her to travel north of Steeles Avenue. Otherwise, she would be required to pay an additional fare. However, according to Ms. Borja the driver became more angry when she did so, and said "Let's go! Let's go!" He also threatened to call the police.

Ms. Borja testified that at the point where she was forced to exit the bus, there was a large snow bank that was taller than she was. She indicated the height was the result of snow plows having moved the snow into piles.

Ms. Borja testified that as she was exiting the bus, the doors closed completely, catching her purse and the hood of her jacket. At the same time, the bus began to move. Ms. Borja testified that she felt she was being strangled and was in extreme danger, as she felt herself falling back onto the bus. At that point she screamed and tried to push herself forward onto the snowbank to avoid being caught under the wheels of the bus.

However, when she screamed the driver opened the doors and she was released. According to Ms. Borja, the driver then said "I'm sorry" but in a tone she interpreted to mean that he was sorry he had to apologize to her. She did not respond.

According to Ms. Borja, the event took place over a matter of seconds. The driver then closed the doors and proceeded to the bus stop where he again stopped.

Ms. Borja testified that she felt quite shaken and then proceeded to the area of the bus stop. She testified that as she passed, she signalled to the driver that that was where the stop was and where she should have been let off. Ms. Borja indicated that she could not see if the driver responded as the doors were closed but that she could see the "irony" in his face.

In cross-examination, Ms. Borja denied shaking her fist at the driver. She also denied that the incident could have been the result of a miscommunication. Nor did she believe it to be the result of malice on the part of the driver. Rather, she indicated that he simply appeared to be in a "bad mood. "

While she was at the bus stop, Ms. Borja took her appointment book and pen out of her purse and wrote down the number of the bus.

Ms. Borja then crossed to the east side of Warden and walked south toward her destination.

It was also Ms. Borja's evidence that the area close to the bus stop had been cleared, and that this was the only portion of the road that had been. She described the cleared area as about one square metre - but indicated she could not describe the dimensions of the cleared area with any certainty.

Ms. Borja testified that she then proceeded to the Mihic home. She indicated she was irritated and afraid when she arrived - although she was not experiencing any physical pain at the time. However, because she was visibly upset, Ms. Mihic, who speaks Spanish, asked what happened. On being told, Ms. Mihic gave her some aspirin and tea. Ms. Borja also testified that she subsequently discovered that her eye glasses, which had been in her purse, had been broken.

Ms. Mihic called the TTC that day and filed a complaint on Ms. Borja's behalf.

Ms. Borja testified that she saw the bus driver at the Warden station the next day. He approached and said something to her. While Ms. Borja testified that he referred to her as "Ms. Lady" and said he was sorry, she was unable to recount anything else he said. According to Ms. Borja, she was afraid of another scene and simply moved away toward the other passengers - although she again travelled on the same route with him that day.

Ms. Borja continued to work at the Mihic home for the rest of that week, i.e. Tuesday to Friday. However, she testified that on the Friday, and during the weekend, she began to experience headaches. She also had trouble sleeping and her body was feeling "something" but she did not know what.

Ms. Borja returned to work at the Mihic's on the following Monday - which was a heavy work day. However, she testified that by afternoon she could not sit down as she was experiencing a lot of pain. She did not return to work there again, and indicated that she was unable to work anywhere for the following eight months. At that time, Ms. Borja returned to work for the Bard family, which she continues to do. Ms. Borja now also cleans offices.

Mr. Dean:

Mr. Dean was the driver involved in this incident and has since retired.

Mr. Dean testified that he had operated the North Warden bus route for about 6 - 7 weeks previously, but that day he was beginning a new period.

Mr. Dean testified that he first noticed Ms. Borja in his rearview mirror when he got to the end of the loop.

Mr. Dean testified that it is not unusual for someone to stay on the bus and do the loop "for something to do." However, he maintained that Ms. Borja's "body language" suggested that she was "lost." While Mr. Dean testified that his recollection was somewhat unclear regarding what exactly he said, it was something like "Did you miss your stop or where would you like to get off?"

According to Mr. Dean, it would have been something to that effect, or what one would say to someone left on the bus. However, he conceded, in cross-examination, that in his report of the incident,⁴ he noted that Ms. Borja had responded "No" when he asked if she had missed her stop.

Mr. Dean testified that Ms. Borja responded by simply pointed downward with her finger. In cross-examination, he indicated that she also said something to the effect of "Here! Here!" In any event, Mr. Dean testified that he understood that she wanted to get off at that location.

Mr. Dean described the road as basically wet, with snow banks about 2-3 metres high - so that Ms. Borja would have had to jump up to get over them. Consequently, Mr. Dean testified that he refused to let her off at that point. According to Mr. Dean, Ms. Borja then "mumbled" something in a language he could not understand. He testified that he knew she was upset but "not to this degree."

Mr. Dean testified that he then proceeded onto Warden where the snow banks were just as high if not higher. He testified that the indent by the bus stop, where Ms. Borja testified she had wanted to get off, was also full of snow as it had not been cleared. When asked about the movement of the bus, Mr. Dean simply testified that he was in traffic behind a line of 2-3 cars.

Mr. Dean testified that he was about 6-7 minutes late on his route at the time of the incident. However, he indicated this was not unusual and that in most instances the time is caught up by the end of the route. He denied rushing Ms. Borja off the bus as a result of his lateness.

Mr. Dean testified that he stopped about 4-5 metres from the bus stop as the light had just turned red and traffic had stopped. He maintained this was a safe location as nothing was moving around the bus. He also testified that had he pulled into the bus lane, he would have had trouble getting back out. However, he denied this was an issue because he was running late.

Mr. Dean confirmed Ms. Borja's testimony that anyone travelling north of Steeles would have to pay extra fare or show a weekly pass as they got off the bus. However, he denied saying anything to Ms. Borja other than that he was sorry he could not let her off at Calvert and Warden. He denied "yelling" at her or banging on the fare box.

In cross-examination, Mr. Dean testified that he believed Ms. Borja had put the money in the fare box when she boarded the bus, "or had a ticket or something." He further testified that in any event she was the only passenger on the bus and he was not going to "hassle" her. However, he testified that Ms. Borja waived a fist at him and "made mumbling sounds" as she passed in front of his bus. She then "wrapped herself around the front of the bus," cut through the cars in front of the bus and crossed to the southeast corner. Mr. Dean testified he did not see her write anything down.

Mr. Dean could not advise when he closed the doors. However, he maintained they were still open when Ms. Borja crossed in front of the bus. He testified that keeping the doors open was one of his "traits." When it was pointed out to him in cross-examination that this would have been in January, he responded that he was currently, in December, driving with his car windows down, and that he was a "fresh air freak."

Mr. Dean testified he saw Ms. Borja again either the next day or shortly after. He approached her and said, "Hello - sorry I could not let you off the other day." However, according to Mr. Dean, Ms. Borja just turned her head and "mumbled something in the other language." Contrary to Ms. Borja's evidence, Mr. Dean testified that she did not get on his bus that day.

Mr. Dean testified that he thought it unusual that she was still so upset, as usually once people cool off they are "O.K." He testified that in his mind, on a scale of 1 -10, the whole matter was about a "2."

Mr. Dean also testify that on two subsequent occasions, Ms. Borja did get on his bus and got off at the first stop west bound on 16th, after turning west off Warden. It was not clear when this occurred but it appears it would have been within the next four working days as it was not contested that Ms. Borja did not return to work at the Mihic's residence after Monday, January 15, 2001.

Mr. Dean did not hear anything more until March 13, 2001 when he was told he had to complete a report regarding the incident.

Mr. Dean testified that he has won twenty customer service awards including the Award of Excellence in 1994. He also testified regarding his charitable work.

ARGUMENT AND ANALYSIS:

The parties agreed that if Ms. Borja's jacket was caught in the door of the bus then what occurred was an accident as defined by section 2 of the Schedule, i.e.:

"accident" means an incident in which the use or operation of an automobile directly causes an impairment or directly causes damage to any prescription eyewear, denture, hearing aid, prosthesis or other medical or dental device.

Considerable time in argument was spend analysing and disputing whether Ms. Borja usually took the loop around to exit the bus at Warden and 16th or whether that day, she had simply inadvertently missed her stop at the north side of 16th Avenue, west of Warden.

TTC argued that if Ms. Borja did miss her stop then it explained her level of distress and reaction to the incident. While that may be true, it does not logically follow that she would then fabricate an incident which did not occur. Consequently, I find that at the end, other than perhaps setting the stage, it is of little consequence and I have not set this analysis and argument out. I do note however, that Ms. Borja seemed familiar with the various stops along the loop as well as a particular area where drivers often pull over to get back on schedule.

In any event, it is not disputed that the day of the alleged accident Ms. Borja did stay on the bus as it looped around. What is at issue is whether, as she was leaving the bus, the hood of her jacket and purse were caught in the doors.

Ms. Borja argued that the incident occurred essentially as she described, culminating with her jacket and purse being caught in the door. On the other hand, TTC argued there was no nexus between Ms. Borja's alleged injury and what occurred on the bus - which TTC characterized as simply a customer service dispute.

TTC relied on elements of Ms. Borja's testimony to argue that her evidence was unreliable. For example, TTC appeared to have understood Ms. Borja to have testified that she had received refugee status as of October 1999. Consequently, when she conceded in cross-examination that it had been denied and she was appealing the denial, TTC relied on this to argue she was not a reliable witness.

However, my notes show that Ms. Borja testified that she had only claimed refugee status in October 1999, and that the matter had "not been dealt with yet." At no point does she indicate she has been granted status.

In the context of a hearing for accident benefits, where the relevance of this evidence is marginal at best, I do not find the limited information Ms. Borja gave regarding her refugee claim to be misleading, or inappropriately abbreviated. It seems reasonable that if she has appealed the denial then the matter remains unresolved or "not yet dealt with."

TTC argued that the details of the entire incident as recounted by Ms. Borja were implausible. For example, TTC argued that Ms. Borja's evidence that she was forced off the bus beside a snow bank that was taller than she was is not credible. However, it was also Mr. Dean's evidence that the drifts on Calvert were 2-3 metres high, and that those on Warden were at least that high if not higher. I agree those appear to have been extraordinarily high drifts. However, I don't know Ms. Borja's height, I recall that she was shorter than 2 metres, which is the equivalent of 6.56 feet, and the more conservative description of the drifts.

TTC also argued that Ms. Borja's evidence that she was in the process of stepping off the bus when she was caught in the door and the bus moved is hard to believe, given that she did not fall in those circumstances.

TTC argued that it was even harder to accept that the incident happened when one considers that Ms. Borja then had the presence of mind to follow the bus as it moved forward, and point out to the driver where she believed he should have stopped, and then memorize the bus number and write it down.

TTC argued that these are the actions of an angry person, rather than an injured person. Similarly, TTC submitted that Ms. Borja's continued attendance at work for the next three days⁵ is not consistent with her having been injured. However, I note that Ms. Borja testified that she did not experience any pain until the following Friday. In any event, in my view, this argument goes more to the degree of injury rather than whether the doors closed on her jacket and purse - which is the issue before me.

That having been said, I do find that Ms. Borja demonstrated a tendency to exaggerate. For example, while she testified she was working 5-6 hours per day for the Mihic family, a signed statement from Mrs. Mihic indicated she worked approximately 20 hours per week or what would be approximately 4 hours per day.⁶ Ms. Borja explained this discrepancy by indicating that she often stayed beyond the four hours per day when Ms. Mihic had not yet returned home, as she would not leave the children alone. While her explanation seems plausible, and no doubt this occurred from time to time, it does not change her four hours per day to 5-6 hours.

I find this tendency to exaggerate as opposed to fabricate, a troubling element of Ms. Borja's evidence and will comment on it further below.

That an "incident" of some sort occurred between Ms. Borja and Mr. Dean is not disputed. The challenge for me, as the Arbitrator, is to try to make sense of the significantly disparate accounts as best I can.

In light of the importance of credibility in this case, I should note that when considering the credibility of Ms. Borja and Mr. Dean, I have taken into account such factors as: the clarity, consistency, and overall plausibility of their testimony when compared to the testimony of the other, and tested by cross-examination; the ability of Ms. Borja and Mr. Dean to resist the "tug of self-interest or self-justification" when framing their answers; and what seems most probable in the overall circumstances. To a limited extent, being aware of its unreliability, I have also considered the demeanor of the witnesses when giving their evidence.

I have also been mindful of the observations of the British Columbia Court of Appeal in Faryna v.Chorny [1952] D.L.R. 354:

The credibility of interested witnesses, particularly in cases of conflict of evidence, cannot be gauged solely by the test of whether the personal demeanor of the particular witness carried conviction of the truth. The test must reasonably subject his story to an examination of its consistency with the probabilities that surround the currently existing conditions. In short, the real test of the truth of the story of a witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions. Only thus can a Court satisfactorily appraise the testimony of quick-minded, experienced and confident witnesses, and of those shrewd persons adept in the half-lie and of long and successful experience in combining skilful exaggeration with partial suppression of the truth. Again a witness may testify what he sincerely believes to be true, but he may be quite honestly mistaken. For a trial Judge to say "I believe him because I judge him to be telling the truth," is to come to a conclusion on consideration of only half the problem. In truth it may easily be self-direction of a dangerous kind.

The trial judge ought to go further and say that evidence of the witness he believes is in accordance with the preponderance of probabilities in the case and, if his view is to command confidence, also state his reasons for that conclusion. . . .

Having reviewed the evidence carefully, in light of the above considerations, my distillation of what transpired is as follows.

Mr. Dean was surprised by Ms. Borja's presence on his bus. However, she read his surprise either then or in the context of the events which followed, as both surprise and annoyance. Mr. Dean then misunderstood her communication as an indication she wanted to get off immediately, rather than at the next stop. This led to a further exchange which Ms. Borja did not fully understand as it was informed by a misunderstanding on the part of Mr. Dean.

As suggested by TTC, it is possible that in trying to make himself understood, Mr. Dean spoke in increasingly loud tones - an unfortunate but common response when dealing with someone who speaks another language.⁷ In any event, by the time the bus arrived at the stop, I find that both Mr. Dean and Ms. Borja were frustrated and annoyed with each other.

With this backdrop of frustration and annoyance, I find the following.

I note that Ms. Borja's evidence was that Mr. Dean was driving slowly but in a "weaving" way. This, in my view, is inconsistent with an attempt to make her fall. On the other hand, if Ms. Borja were simply fabricating evidence to cast Mr. Dean in a bad light, it seems more likely she would have said he was driving unreasonably fast.

So what is one to make of her evidence that Mr. Dean, a stranger to her, drove the bus in such a manner as to deliberately make her fall? As noted by TTC, this would be monstrous behaviour on the part of a professional driver who has been acknowledge for his customer service!

Given the road conditions as described by both Mr. Dean and Ms. Borja, and that the bus was travelling on an incline, I find it likely the bus would have experienced less than smooth passage. I also find that Ms. Borja, either at that point or in her overall analysis of the course of events, inferred intent regarding Mr. Dean's perceived erratic driving, where no intent existed.

In my view, Ms. Borja's recollection of individual elements of the incident was coloured by the entire chain of events. Consequently, while one element in isolation may not have been significant, it took on greater significance in the fuller context, and led to her somewhat exaggerated account of what occurred.

On the issue of whether Mr. Dean did ask for additional fare, I prefer the evidence of Ms. Borja.

It was clear from both Mr. Dean's and Ms. Borja's evidence that additional fare was required in the absence of a special pass. If Mr. Dean believed Ms. Borja was "lost," as he testified, then it seems more likely he would ask for the additional fare rather than assume she had a pass.

I also find it unlikely that Mr. Dean would not require the additional fare simply because Ms. Borja was the only passenger on the bus, as this would have been a deviation from TTC's fare structure. In my view, her solitary presence on the bus does not create a compelling reason to essentially give her a "free ride," especially as Mr. Dean did not seem positively disposed towards Ms. Borja by that time. It also seems an unnecessary and unlikely element for Ms. Borja to add to her account if it did not happen.

Was there a metre area that was clear in the vicinity of the bus stop as Ms. Borja testified and would it have been safer? In the end, none of this matters unless I am of the view that Mr. Dean deliberately tried to injure Ms. Borja - which I am not. With regard to where Ms. Borja was required to disembark, I find that given the conditions of the roads and the height of the snowbanks, there was no ideal place to stop.

This brings us to the critical issue in this case. Whether the doors closed on Ms. Borja's jacket and purse.

For the following reasons I find that, on a balance of probabilities, they did.

I have difficulty accepting that Mr. Dean would not have closed the doors on the bus that January morning, given the condition of the roads, which he had testified were wet, and given that he was driving a public vehicle. While he explained this was because he was a "fresh air freak," without anything further, I find that this particular characteristic too conveniently answers Ms. Borja's complaint and does not accord with what would be probable in the circumstances.

On the other hand, while I found Ms. Borja has misinterpreted and exaggerated the significance of the manner in which Mr. Dean was driving, I found that the events described by her, or some version of them, did occur.

The only motivation Ms. Borja would have for fabricating the detail of the door closing on her jacket and purse is if this were all an elaborate plan to claim accident benefits. However, this is inconsistent with her continuing to work until the following Monday.

Her refusal to acknowledge Mr. Dean when they next met is also consistent with a more serious event than described by Mr. Dean.

Finally, in concluding that the door closed on her jacket and purse, I also note that that element of Ms. Borja's account has remained consistent.

This has not been an easy factual determination to make. The completely disparate accounts of Ms. Borja and Mr. Dean, even with regard to details of no relevance (some of which I have omitted), as well as Ms. Borja's attribution of intent to Mr. Dean's driving, gave me considerable pause. However, having revisited the evidence in this difficult case several times, I remain convinced that the doors did close on Ms. Borja's jacket and purse. However, the degree to which she was disabled as a result remains to be determined.

DID MS. BORJA MAKE HERSELF REASONABLY AVAILABLE FOR A DISABILITY ASSESSMENT?:

BACKGROUND:

Ms. Borja's testimony at the hearing, as well as written submissions from the parties provided the following factual background.

Ms. Borja applied for income replacement benefits, medical/rehabilitation benefits, housekeeping expenses, and the cost of an at-home assessment and a psychological assessment. These were denied and are the subject of the Application for Arbitration.

It was not disputed that prior to her accident Ms. Borja had been employed.

On or about February 5, 2001, TTC received the Activities of Normal Life Form (OCF 12) which indicated that Ms. Borja was independent in her personal care activities, although slower due to her injuries.⁸

On or before February 13, 2001, TTC also received:

a) A Treatment Plan from Disability to Function Rehabilitation, dated January 24, 2001, seeking approval for 22 treatments in 6 weeks of initial therapy, and weekly massage;⁹

b) An Initial Assessment and Report from Disability to Function dated January 24, 2001, with invoice for $300.00, suggesting psychological assessment and treatment;¹⁰

c) Invoices from Dr. R. Adam in the amount of $260.61¹¹

d) A Disability Certificate signed by Dr. R. Adam detailing complaints of headaches, neck pain, low back pain, pain in the shoulders and elbows, insomnia, and anxiety, which prevented Ms. Borja from working or carrying out pre-accident housekeeping and home maintenance activities. The certificate indicated that Ms. Borja had been prescribed Norflex and Lectopam and had been referred to a psychologist.¹²

On February 13, 2001 following receipt of the above material, Trevor McCallum, TTC adjuster, wrote to Mr. Murillo, requesting Ms. Borja attend an insurer's examination with respect to her entitlement to medical/rehabilitation, non-earner, housekeeping, attendant care and income replacement benefits.[emphasis added] Mr. McCallum advised that Seiden Health Management Inc. ("Seiden") would contact Mr. Murillo regarding the details of the examination.¹³

On February 21, 2001, Seiden wrote to Ms. Borja, advising her that at the request of TTC, the following appointments had been scheduled: Dr. Debow, psychiatrist, on March 8, 2001 at 2:45 p.m.; an At-Home Functional Abilities Evaluation for March 19, 2001, at 9:00 a.m.; and, an examination with Dr. Todd Walters on March 20, 2001 at 9:45 a.m.¹⁴ While the correspondence was copied to Mr. Murillo, it appears his copy was sent to a firm with which he was not associated. Ms. Borja testified that she gave this letter to Mr. Murillo on March 8, 2001.

On March 14, 2001, Mr. Murillo wrote to Mr. McCallum advising that the notice of the appointments did not comply with the Schedule as it failed to indicate the benefit to which the examinations pertained.

Mr. Murillo also took the position that the At-Home Assessment was unnecessary because Ms. Borja had recently undergone such an assessment at the request of her treating practitioner on February 23, 2001. Mr. Murillo requested the appointments be cancelled, and indicated that future correspondence should be sent directly to him.¹⁵

On March 16, 2001, Mr. McCallum responded to Mr. Murillo advising he would not cancel the appointments and referring Mr. Murillo back to Mr. McCallum's correspondence of February 13, 2001 - which he stated constituted proper notice of the examinations. Mr. McCallum also indicated that failure to attend would result in a refusal to pay benefits under section 42 of the Schedule.¹⁶

Ms. Borja testified that while she attended the appointment with Dr. Debow; she did not attend either the At-Home Functional Abilities Assessment or the appointment with Dr. Walters, because Mr. Murillo advised her not to attend.

THE LAW:

The relevant sections are set out below:

Subsections 42 (1) through (5) and (8) of the Schedule provide:

42.(1) For the purpose of determining whether an insured person is entitled to a benefit, except a funeral or death benefit, an insurer may give the insured person notice requiring him or her to be examined by one or more persons specified by the insurer, each of whom is a member of a health profession or a person with expertise in vocational rehabilitation.

(2) The notice shall state the benefit to which the examination relates, [emphasis added]

(3) The insurer may require examinations as often as is reasonably necessary.

(4) The insurer shall make reasonable efforts to schedule the examination for a time that is convenient for the insured person and shall provide the insured person with reasonable notice of the examination.

(5) For the purpose of the examination,

(a) the insured person shall provide the person or persons who conduct the examination with such information as is reasonably necessary; and

(b) the insured person shall submit to any reasonable physical, psychological, mental and functional examinations requested by the person or persons who conduct the examination.

(8) If an insured person fails or refuses to submit to an examination required by the insurer under this section or fails to comply with subsection (5),

(a) the insurer may stop payment of the benefit related to the examination until the person submits to the examination or complies with subsection (5), after which time the insurer shall resume payment of the benefit; and

(b) no benefit is payable for the period after the giving of the notice under subsection (1) or the failure to comply with subsection (5) and before the insured person submits to the examination and complies with subsection (5).

Paragraph 50(b) of the Schedule provide:

An insured person shall not commence a mediation proceeding under section 280 of the Insurance Act unless, (b) he or she made himself or herself reasonably available for any examination required by the insurer under section 42; . . .

ARGUMENT:

The benefits claimed by Ms. Borja were income replacement benefits, medical/rehabilitation benefits, and housekeeping benefits.

It was agreed by the parties that there was a reasonable nexus between the examinations at issue and the benefits claimed by Ms. Borja. However, the letter from Mr. McCallum also referred to assessments related to attendant care and non-earner benefits.

TTC argued that an insurer should have a reasonable opportunity to test the strength of the insured person's claims through the insurer's medical examination process provided for in section 42 of the Schedule.¹⁷

TTC submitted that the factors to be considered in determining if a medical examination is reasonably necessary are: the timing of the insurer's request; the possible prejudice to both sides; the number and nature of previous insurer's examinations; the nature of the examinations being requested; whether there are any new issues being raised in the applicant's claim that require evaluation; and, whether there is a reasonable nexus between the examinations requested and the applicant's injuries.¹⁸

TTC maintained that the At-Home Functional Abilities Assessment and examination by Dr. Walters were initial assessments of Ms. Borja's claims to benefits, were not prejudicial to Ms. Borja, and were responsive to her allegations of injury and disability.

None of the above was contested.

Rather, the Applicant took the position that TTC cannot rely on the notices of the insurer's examinations as they were not properly formulated.

The Applicant pointed out that Mr. McCallum's letter of February 13, 2001 requested an examination with regard to benefits which were irrelevant to Ms. Borja's claim and ones for which she would not be applying, namely non-earner and attendant care benefits. Nor did the letter indicate which health care providers would be doing the assessments in relation to which benefit.

Furthermore, the Applicant relied on the February 21, 2001 letter to Ms. Borja from Seiden which set out three separate appointments but did not identify the benefits to which the examinations related.

Ms. Borja maintained there were no indications she would be claiming a non-earner benefit as she was employed at the time of the accident and had made an application for income replacement benefits. Furthermore, while the OCF 12 she had submitted indicated she required housekeeping assistance, there was no indication she required attendant care benefits.

Finally, Ms. Borja pointed out that although Mr. McCallum was notified by Mr. Murillo that the notice was not properly formulated, Mr. McCallum chose not to clarify the benefits to which the insurer's examinations related.

Consequently, Ms. Borja argued that as the notices were not properly formulated, TTC cannot rely on them to establish the reasonableness and necessity for these appointments.

In making her argument, Ms. Borja relied on the case of Dhir and RBC General Insurance Company.¹⁹ In that case the insurer had taken the position at the hearing that it sought further assessments to evaluate the amount of the attendant care benefit. However, its written notice, in addition to providing the names, specialties and dates for the examinations, indicated that entitlement to income replacement benefits, medical/rehabilitation benefits, attendant care benefits, housekeeping benefits, case management and catastrophic impairment would be assessed.

The applicant's counsel in Dhir pointed out that some of the issues listed in the notice had not been mediated and some benefits had been terminated, but the notice lumped all issues together for the purpose of the assessments.

Arbitrator Allen, at pages 9 and 10, of the Dhir case, adopted the ruling in the Avdalimov case.²⁰ In that case, the arbitrator found the insurer's notice defective in a material respect because it did not set out the purpose for the examination or the benefit to which it related, as required by subsection 42(2) of the Schedule.

Arbitrator Allen found that in the Dhir case, the insurer's notice had a similar material defect in that neither the purpose for the examinations nor the benefit to which the examination related were clear. She concluded that the insurer's notice of the assessment appointments did not comply with the procedural requirements of section 42 of the Schedule, and consequently, the insurer could not rely on the notice to prevent the applicant from proceeding to arbitration.

TTC responded that Mr. McCallum, reasonably, in light of the Activities of Daily Living form, anticipated a claim for attendant care benefits and included that as a subject of the examinations.

TTC maintained that the inclusion of an imminent, reasonably anticipated benefit claim as a subject for initial assessments obviated the need for an additional assessment when the claim was made, and that subsection 42(1) of the Schedule does not require insurer's examinations to relate only to benefits which have been already claimed.

TTC argued that the inclusion of an anticipated claim should not convert what would otherwise be reasonably necessary examinations into unreasonable ones.

No reason was given for the inclusion of the reference to a non-earner benefit.

TTC responded that the reasons provided by Ms. Borja through her representative in his letter of March 13, 2001 were disingenuous or based on an incorrect understanding of the nature and purpose of insurer's examinations and do not amount to a reasonable excuse.

Consequently, TTC maintained that adequate notice of the appointments was provided.

Finally, TTC relied on the following cases: Hernandez and Zurich Insurance Company (FSCO A96-001123, June 19, 2001); Opatowski and Wawanesa Mutual Insurance (FSCO A-000381, September 22, 1992); Renatto and State Farm Mutual Automobile Insurance Company (FSCO A02-000253, November 1, 2002).

However, I found the facts and issues in those cases to be sufficiently dissimilar from those in this case, that nothing would be gained by setting them out in this already lengthy decision.

ANALYSIS:

Subsection 42(2) is very clear that the notice of an insurer's examination must state the benefit to which the examination relates. I agree that, as argued by Ms. Borja, the purpose of this requirement is to permit the insured person to know the affected benefit and decide whether to attend the examination or abandon the claim for the benefit. This is not possible without a precise indication of the benefits for which the Insurer seeks more information.

It would make little sense to include anticipated benefits, as argued by TTC, because presumably the benefit would only subsequently be claimed if a change or deterioration occurred in the medical circumstances of an insured. That being the case, a medical examination which predates the change triggering the new claim would be of little or no assistance.

Furthermore, it would result in broader examinations than necessary which, in my view, would not be reasonable, given the balance which must be struck between the right of an insurer to information, and the right of a claimant to privacy.

In any event, it could not have been anticipated that Ms. Borja would be changing her claim from income replacement benefits to non-earner benefits. Yet these were also referred to by Mr. McCallum in his letter.

The February 21, 2001 notice from Seiden also failed to provide Ms. Borja with the clarity to which she is entitled. However, having had Ms. Borja's concerns regarding that notice brought to its attention through Mr. Murillo's correspondence of March 14, 2001, TTC chose not to remedy the situation and simply referred to the similarly problematic February 13, 2001 correspondence.

I agree with the determinations in the Dhir and Avdalimovdecisions. Consequently, I find that TTC's notice of the assessment appointments did not comply with the procedural requirements of section 42 of the Schedule because it failed to state the benefit or benefits to which the examinations were intended to relate as is required by subsection 42(2).

As a result, I find that TTC can not rely on the notice to prevent Ms. Borja from proceeding to arbitration.

While Ms. Borja argued, in the alternative, that it would have been too intrusive to require her to attend another Functional Abilities Examination as she had attended one less than a month before TTC scheduled theirs, I do not have to address this argument in light of my ruling on her first argument.

EXPENSES:

The parties made no submissions as to expenses and I leave the issue of expenses to the hearing arbitrator.

April 3, 2003

Tanja Wacyk Arbitrator

Date

Neutral Citation: 2003 ONFSCDRS 51

FSCO A02-000449

FINANCIAL SERVICES COMMISSION OF ONTARIO

BETWEEN:

DALINDA BORJA

Applicant

and

TTC INSURANCE COMPANY LIMITED

Insurer

ARBITRATION ORDER

Under section 282 of the Insurance Act, R.S.O. 1990, c.I.8, as amended, it is ordered that:

1. Ms. Borja was involved in an "accident" as defined in section 2(1) of the Schedule.

2. TTC cannot rely on its notice of examinations to preclude Ms. Borja, under subsection 50(b) of the Schedule, from proceeding to arbitration because she did not make herself reasonably available for examinations by TTC as required by section 42 of the Schedule.

April 3, 2003

Tanja Wacyk Arbitrator

Date

Footnotes

1. 1The Statutory Accident Benefits Schedule —Accidents on or after November 1, 1996, Ontario Regulation 403/96, as amended by Ontario Regulations 462/96, 505/96, 551/96, 303/98, 114/00 and 482/01.
2. 2Exhibit 5
3. 3The statement was in English and it was not apparent if it had been given with the assistance of an interpreter.
4. 4Exhibit 7
5. 5Five counting the Monday
6. 6Exhibit 4
7. 7I was not able to confidently gauge Ms. Borja's facility with English. On a few occasions she tried to answer questions put to her in the hearing before having them interpreted, with mixed results. Subsequently, on the advice of her counsel, she waited until the questions were interpreted. Based on this limited experience, it appears that while Ms. Borja has some facility with the English language it is limited.
8. 8Exhibit 6 - Joint Documents Brief, page 11
9. 9Ibid - pages 1-3
10. 10Ibid - page 12
11. 11Ibid - pages - 13 to 14
12. 12Ibid - pages - 17 to 19
13. 13Ibid pages 20 and 21
14. 14Ibid pages 22 and 23
15. 15Ibid - page 24
16. 16Ibid - page 25
17. 17Prudential of America General Insurance Company (Canada) and Chafe-Moote (FSCO P99-00044, September 8, 2000) Appeal at page 10
18. 18Stanley and Pilot Insurance Company (FSCO A01-001482, November 13, 2002) at page 21.
19. 19(FSCO A01-000741, January 15, 2002)
20. 20Avdalimov and CGU Company of Canada (FSCO A00-000433, May 25, 2001).