Financial Services Commission of Ontario

Commission des services financiers de l’Ontario

Neutral Citation: 2005 ONFSCDRS 132

FSCO A04-000524

BETWEEN:

YORAM OHAYON Applicant

and

ING WELLINGTON INSURANCE COMPANY Insurer

DECISION ON A MOTION

Minor error on page 6 corrected on October 3, 2005 in accordance with the Dispute Resolution Practice Code and section 21.1 of the Statutory Powers Procedure Act.

Before: Jeffrey Rogers

Heard: By telephone conference call on September 1, 2005.

Appearances: Murray Teitel, solicitor for Mr. Ohayon Fiona Brown, solicitor for ING Wellington Insurance Company

Issues:

The Applicant, Yoram Ohayon, was injured in a motor vehicle accident on February 17, 2001. He applied for and received statutory accident benefits from ING Wellington Insurance Company ("ING"), payable under the Schedule.¹ The parties disagree on Mr. Ohayon's entitlement to benefits. They were unable to resolve their disputes through mediation, and Mr. Ohayon applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

On July 28, 2005, Mr. Ohayon brought a motion for interim expenses. Mr. Ohayon is a resident in Israel. The issue in the motion for interim expenses was payment for his attendance in Toronto in November, 2005. Mr. Ohayon has been ordered to attend for defence medicals and discoveries in the related tort action, before November 30, 2005. The arbitration hearing is scheduled to start on November 21, 2005.

By letter of July 26, 2005, counsel for ING informed the Commission that the issue of interim expenses was largely resolved, but there remained minor differences and counsel for Mr. Ohayon opposed her request for an adjournment of the hearing. Counsel clarified his position on July 28, 2005, indicating that he had not agreed that his client would be attending insurer examinations (IEs) in November, because that would require adjourning the hearing.

I ruled that counsel for ING was reasonably under the impression that counsel for Mr. Ohayon had agreed that his client would attend IEs in November. I therefore scheduled this motion for September 1, 2005.

In the Notice of Motion, ING seeks an order requiring Mr. Ohayon to attend at a neuropsychological assessment with Dr. Freedman on November 28, 2005, and a psychiatric assessment with Dr. Prendergast on November 30, 2005. In the alternative, ING seeks an order staying the arbitration until Mr. Ohayon agrees to attend these assessments.

Result:

1. Mr. Ohayon is not required to attend the proposed IEs.

2. Mr. Ohayon is entitled to his expenses of the motion in the amount of $600.

EVIDENCE AND ANALYSIS:

The accident happened about three-and-a-half years ago. Mr. Ohayon applied for mediation in September 2003 and for arbitration in March 2004. A pre-hearing was held on November 24, 2004. The hearing was set to commence on July 18, 2005. On June 10, 2005, the hearing was adjourned to November 21, 2005 at ING's request, because productions were not completed. ING has conducted no IEs. The earliest indication that ING intended to schedule IEs is found in correspondence from its counsel dated June 30, 2005. The letter suggested that it would be necessary to adjourn the arbitration hearing for that purpose. A further letter from counsel, dated July 22, 2005, confirmed the intention to schedule IEs and the necessity for an adjournment.

ING has not served Mr. Ohayon with a Notice requiring his attendance for IEs. The information regarding the assessments is found in the letters of June 10 and 30, 2005 and in the motion record. In submissions, counsel indicated that the appointment with Dr. Prendergast has now been changed to December 1, 2005. Counsel also revealed in submissions that three additional appointments have been made.

ING submits that its delay in scheduling IEs was caused by Mr. Ohayon's delay in providing medical evidence supporting his claim. Therefore, ING was not in a position to provide any person conducting an examination with "such information as is reasonably necessary" as required by section 42(5)(a) of the Schedule. In support of that position, ING points to the delivery of a "psychiatric expert opinion" by Dr. Kreinin and a report by Alexander Michalevich, a psychology student, on May 2, 2005.

ING agrees that it received extensive medical evidence, prepared for the tort action, about two-and-a-half years ago. However, the documents were in Hebrew and, because there was a dispute about paying for translation, they were not translated until July 2004. After that, ING was hoping that the matter would be settled, then, after the pre-hearing, it further delayed because documents Mr. Ohayon had agreed to produce had not yet been produced.

The right of an insurer to require an insured to attend to be examined is derived from section 42 of the Schedule. Section 42(1) provides that an insurer may give notice requiring attendance to be examined for "the purpose of determining whether an insured person is entitled to a benefit". Section 42(2) provides that the "notice shall state the reasons why the insurer requires the examination and shall specify a date for the examination". Section 42(3) provides that an "insurer may require examinations as often as is reasonably necessary". Section 42(5)(a) provides that "the insured person shall provide the person or persons who conduct the examination with such information as is reasonably necessary."

I find that ING has not complied with the notice provisions of section 42. Without proper notice, there can be no improper refusal to attend. The motion may be dismissed for that reason alone. Section 42(1) requires the insurer to "give the insured person notice". ING has given Mr. Ohayon no notice. If the information contained in the letters of June 10th and 30th and in the motion record are accepted as "notice", the "notice" would still not fulfil the insurer's obligation to "state the reasons why the insurer requires the examination". In addition, with regard to Dr. Prendergast, there is no written notice of the date now proposed for the examination.

In any event, I find that the proposed examinations are not for the purpose of determining whether Mr. Ohayon is entitled to a benefit. ING's intentions must be deduced from all of the circumstances leading to the request. I accept that where, as here, there have been no previous examinations, an insurer will usually meet its onus of establishing that a requested assessment is authorized by section 42. The issue of whether the insurer is requiring examinations more often than reasonably necessary is eliminated. But there remains the issue of the purpose of the examination. Here, the timing of the request is critical. The closer the request to the date of the hearing, the more likely it is that the insurer has no interest in adjusting the claim, but is seeking evidence for the hearing. An insurer will often avoid that inference where the insured raises new issues of diagnosis of disability on the eve of the hearing. I do not accept that those circumstances exist here.

Paragraph 7 of the Affidavit of Molly Keays, filed in support of the motion, indicates that ING has had Dr. Kreinin's psychiatric diagnosis since Mr. Ohayon made his claim for benefits. The diagnosis has not changed. ING has had extensive medical information from Mr. Ohayon, in English, since July 2004. Nevertheless, it did not raise the issue of IEs until several weeks after it had been granted an adjournment of the first date set for the hearing. It is not likely that ING has developed an interest in assessing Mr. Ohayon's entitlement to benefits, this late in the process. It is much more likely that it is only seeking evidence for the hearing. That view is reinforced by ING's position that it was not able to provide necessary information to an assessor, because productions were not complete.

An insurer's section 42 rights are not triggered by an application for arbitration. Its rights and obligations are independent of the dispute resolution process. If ING's position were accepted, an insurer would never be in a position to require an examination without production of extensive medical records and reports. Contrary to ING's position, section 42 places no obligation on an insurer to provide information. The obligation is placed on the insured person to provide the person conducting the examination with "such information as is reasonably necessary." I do not accept that a complete medical brief is reasonably necessary for forming an opinion on Mr. Ohayon's condition. However, it may be required if the intent was to produce an opinion for use as rebuttal evidence in an arbitration hearing.

As I ruled in Ramalingam and State Farm Mutual Automobile Insurance Company², I do not accept that the appeal decision in Belair Insurance Company Inc. and F.S³ expands an insurer's right to section 42 examinations to include examinations based on "fairness". In F.S., the issue of fairness was whether it would be fair to allow the applicant to proceed with the arbitration, despite failure to attend a properly required examination, not whether an insurer is entitled to an examination on the basis of fairness alone. Arbitrator Naylor found that is was unfair to allow the applicant to proceed and found jurisdiction to stay the proceeding in the general discretion of a Tribunal to control its own process.

If ING were entitled to an examination on the grounds of fairness, I find that it would be unfair to require Mr. Ohayon to attend the proposed examinations. The critical factor in that finding is that the examinations would require an adjournment of the hearing and it would be contrary to the Adjournments Policy established by Practice Note 9 of the Dispute Resolution Practice Code to further adjourn the hearing. ING was in a position to request the proposed examinations when it first received Dr. Kreinin's diagnosis or in July 2004, at the latest, when it had translated the extensive medical evidence it had received. The Policy provides that requests for adjournments will only be considered in three circumstances, one of which is where medical or other critical evidence is unavoidably delayed. That is not the case here. The Policy also provides that adjournments will be not granted where parties have not made early arrangements for examinations. That is the case here.

In summary, I find that Mr. Ohayon has not been served with a notice requiring him to attend examinations, if he has been served, the notice is defective, the proposed examinations are not for the purpose provided in section 42, ING has no right to an examination on the grounds of fairness, and if it did, it would be unfair to require Mr. Ohayon to attend the proposed examinations. The motion is therefore dismissed.

The only criterion of the Expense Regulation relevant to entitlement to expenses is degree of success. Mr. Ohayon is therefore entitled to his expenses of the motion, which I fix at $600.

September 16, 2005

Jeffrey Rogers Arbitrator

Date

Financial Services Commission of Ontario

Commission des services financiers de l’Ontario

Neutral Citation: 2005 ONFSCDRS 132

FSCO A04-000524

BETWEEN:

YORAM OHAYON Applicant

and

ING WELLINGTON 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. ING's motion for an order requiring Mr. Ohayon to attend a neuropsychological assessment with Dr. Freedman on November 28, 2005 and a psychiatric assessment with Dr. Prendergast on November 30, 2005 and, in the alternative, an order staying the arbitration until Mr. Ohayon agrees to attend these assessments, is dismissed.

2. ING shall pay Mr. Ohayon his expenses of the motion in the amount of $600, GST included.

September 16, 2005

Jeffrey Rogers Arbitrator

Date

Footnotes

1. 1The Statutory Accident Benefits Schedule —Accidents on or after November 1, 1996, Ontario Regulation 403/96, as amended.
2. 2(FSCO A02-001646, December 17, 2004)
3. 3(OIC P96-00039, June 11, 1996)