Singarajah v. Wawanesa Mutual Insurance Company, 2003 ONFSCDRS 97

Financial Services Commission of Ontario

Neutral Citation: 2003 ONFSCDRS 97 FSCO A02-000785

BETWEEN:

MALLIKADEVI SINGARAJAH Applicant

and

WAWANESA MUTUAL INSURANCE COMPANY Insurer

DECISION ON A MOTION

Before: John Wilson

Heard: By telephone conference call on June 13, 2003. Written submissions were received on June 12, and June 13, 2003.

Appearances: Karen Kwan Anderson for Ms. Singarajah Darrell March for Wawanesa Mutual Insurance Company

Issues:

The Applicant, Mallikadevi Singarajah, was injured in a motor vehicle accident on October 15, 2000. The parties were unable to resolve their disputes through mediation, and Ms. Singarajah applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

The arbitration hearing in this matter is scheduled to begin on June 23, 2003.

On June 4, 2003, counsel for the Insurer wrote to the Commission:

We recently received from the claimant's representative, a medical report from Dr. Tsang. On May 30th, 2003, we requested an opportunity to assess the claimant in response to Dr. Tsang's report. We have been advised that the claimant's representative is prohibiting our responding assessment.

We therefore request an immediate appearance before an Arbitrator. We wish to bring a Motion for a medical legal assessment to take place in response to Dr. Tsang's recent report.

On June 12, 2003, the Insurer filed a motion record which contained a number of documents, but did not contain either a notice of motion, nor a description of the order being sought, or the grounds for the order, as required by Rule 67.3 of the Dispute Resolution Practice Code (the Practice Code).

Counsel for the Applicant, in turn, filed a response, indicating her substantive and procedural objections to the Insurer's motion.

The reports giving rise to this motion are undated reports by Ms. Singarajah's family physician, Dr. Ann Tsang, and consist of less than one half of a page each. There was no dispute that the documents were included in the Applicant's medical brief at tabs 57 and 60, and that the medical brief was properly served upon the Insurer within the time-lines prescribed by the Practice Code.

The Insurer clarified at the commencement of the hearing that it was not asking for an order compelling attendance at the medical examination, but rather an order sanctioning Ms. Singarajah for her refusal to attend the proposed examination.

Counsel for the Insurer was adamant that he did not propose adjourning this matter to permit the proposed assessment, and insisted that a report could be completed and filed in time to be used at the hearing.

The issues are:

1. Is Ms. Singarajah precluded from proceeding to arbitration by reason of her prospective failure to attend a medical assessment at the request of the Insurer?

Result:

1. Ms. Singarajah may proceed to arbitration.

EVIDENCE AND ANALYSIS:

At common law, no one, including insurers, had a right to compel an insured to make him or herself available for examination simply because a claim was being advanced. (See Redly v. City of London et al. (1891), 14 PR (Ont.) 171). Parties to civil actions may now move under section 105 of the Courts of Justice Act to obtain an order for a compulsory medical examination where the plaintiff's health is at issue in the matter.

In accident benefit matters before the Commission, insurer's examinations are permitted pursuant to section 42 of the Schedule.¹

In Glynn and General Accident Assurance Co. of Canada (OIC A96-000004, November 25, 1996), Arbitrator Makepeace summarized the normal requirements for insurer's medical examinations.

I find that the Insurer's right to require the Applicant to attend an Insurer Medical Examination is subject to the following requirements under sections 23(2) and 25:

(i) The examination must be required in respect of a claim for weekly benefits.

(ii) The Insurer may require an IME "as often as it reasonably requires."

(iii) The Insurer must give the Applicant "reasonable notice" that it requires the examination.

(iv) The examination must be performed by a "qualified medical practitioner, psychological advisor or chiropractor."

Manolakos v. Royal Insurance ([1998] O.J. No. 2157), a decision of Farley J., dealt with an insurer's request for assessments of an insured. He stated:

In my view the onus is on the insurance company in such circumstances to demonstrate its request for such as reasonable in the circumstances (although this would be "automatic" where there has never been an examination).

"Reasonable under the circumstances" would also mean that a request for an examination must comply with the rules of natural justice. It would also suggest that it ought to be in general accordance with the Rules which govern the production of evidence at the Commission's hearings, and in accordance with legislative authority.

Although the Insurer submitted letters to counsel for the Applicant, there is no evidence before me that Ms. Singarajah received a notice of the examination that was in compliance with subsection 42(1) of the Schedule, or that reasonable notice of the examination was given to her pursuant to subsection 42(4).

Even if the application were to be found in accordance with section 42, the Applicant submits that she will be gravely prejudiced by the production of a last-minute report by the Insurer, to which she will not be able to adequately respond.

Rule 39 of the Practice Code addresses this very issue by requiring that all documents assessments and reports be filed at least 30 days prior to the first day of the hearing. Rule 39.2 only permits exceptions to this rule in exceptional circumstances.

The Canadian Oxford Dictionary defines "exceptional" as:

1 Forming an exception. 2 unusual; not typical (exceptional circumstances) 3 unusually good; outstanding.

The Insurer submits that Dr. Tsang's report raised new issues that required a last minute examination by its chosen professionals. In other words, the report created exceptional circumstances.

Wawanesa argued that the report at tab 60 of the Applicant's medical brief contained the first reference in any report to an inability to resume caregiving, housekeeping and home maintenance, and that, consequently, it is entitled to an examination with regard to this new information.

It should be noted, however, that in the Applicant's pre-hearing brief, dated October 9, 2002, a summary of her current status clearly stated that she had not returned to pre-accident levels of housekeeping and caregiving. Indeed, the pre-hearing letter clearly indicates that Ms. Sinarajah's ability to perform caregiving and housekeeping functions were live issues in this matter.

The Insurer had ample notice of these issues, yet took no steps to arrange timely examinations in the months that followed the pre-hearing.

There was no change in the insured person's medical or psychological condition. The only change for the Insurer was a new and perceived need to bolster its case at the last minute on these issues. The service of documents concerning known issues within the time-frame provided for in the Rules of the Practice Code does not constitute the required exceptional circumstance.

Nor, as noted, has the Insurer demonstrated the reasonableness and the necessity of the examination.

Director's Delegate Draper's commented in Traders General Insurance Company and Levey (FSCO P98-00035, February 25, 1999):

Insurers do not have an absolute right to schedule examinations whenever they want. The examination must be reasonably necessary and scheduled at a time reasonably convenient for the insured person. As Director's Delegate Naylor held in F.S. and Belair Insurance Company Inc., (OIC P96-00039, June 11, 1996), this involves a balancing of the interests of the parties, with the timing of the examination as an important consideration. Absent a clear explanation, examinations scheduled on the eve of the hearing suggest the kind of tactical brinkmanship that arbitrators have properly rejected as part of this system.

While Wawanesa may well consider the provision of documents at the last minute a sort of brinkmanship, it must be remembered that Dr. Tsang's reports were filed within the time-limits set out in the Schedule, and concerned issues identified and confirmed in the pre-hearing letter. I find that the holding of a last-minute insurer's examination and the filing of any Insurer's report arising from an examination a week or more before a hearing, especially in the light of the Insurer's insistence that it did not want an adjournment, could be nothing but brinkmanship of the highest degree, and would, necessarily result in a delay to the process if the Applicant were to have any opportunity to review the report.

In any analysis based on prejudice, the Applicant would be far more prejudiced by a late report from a last-minute examination, to which she could not effectively respond, than the Insurer would be from the inclusion of Dr. Tsang's one-page reports in the Applicant's document brief. The Insurer, after all, will have the opportunity to fully cross-examine Dr. Tsang, as well as to make any arguments on the admissibility of the reports to the hearing arbitrator, who, alone, can rule on admissibility.

Wawanesa had the onus of proving that its proposed examination met the criteria of section 42 of the Schedule, and that it was reasonable for it to ask for the examination. I have found that it has not satisfied the burden of proof on either issue. Consequently, Ms. Singarajah's prospective non-attendance at the proposed assessment should not be a bar to her proceeding to arbitration.

EXPENSES:

Ms. Singarajah requested that she be awarded her expenses in this motion on the basis that it was without merit, and not in compliance with the Practice Code.

The Insurer requests that any question of expenses be left to the hearing arbitrator.

I accept the Applicant's argument that the Insurer's motion was manifestly unfounded and fundamentally flawed.

The Insurer brought a motion that, on the face, was incomplete, and which can only be characterized as tactical brinkmanship. In all likelihood an examination at this late date would have unnecessarily prolonged this matter, notwithstanding the Insurer's protests that an adjournment would not be necessary.

If the true underlying issue was the admissibility of Dr. Tsang's reports, then the entire matter should have been left to the hearing arbitrator pursuant to Rule 39.3 of the Practice Code.

In addition, the Applicant was successful on all counts in this motion. In my mind, both the motion and the attempt to set an insurer's examination at this late date were unnecessary and regrettable and put the Applicant to expenses for which she should be compensated.

I order, therefore, that Wawanesa pay Ms. Singarajah $250, forthwith as fixed costs in this motion.

June 16, 2003

John Wilson Arbitrator

Neutral Citation: 2003 ONFSCDRS 97 FSCO A02-000785

FINANCIAL SERVICES COMMISSION OF ONTARIO

BETWEEN:

MALLIKADEVI SINGARAJAH Applicant

and

WAWANESA MUTUAL INSURANCE COMPANY Insurer

ARBITRATION ORDER

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

1. Wawanesa shall pay to Ms. Singarajah $250 as fixed costs in this motion.

June 16, 2003

John Wilson Arbitrator

Footnotes

1. 1Under the 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.