Neutral Citation: 2005 ONFSCDRS 141 FSCO A04-001704

Between: Ajmer Nirwan (Applicant) and Kingsway General Insurance Company (Insurer)

Decision on a Motion

Before: Edward Lee Heard: By telephone conference call on September 8, 2005.

Appearances: Joseph Campisi Jr. for Mr. Nirwan James V. Leone for Kingsway General Insurance Company

Issues:

The Applicant, Ajmer Nirwan, was injured in a motor vehicle accident on April 7, 2002. He applied for and received statutory accident benefits from Kingsway General Insurance Company ("Kingsway"), payable under the Schedule.¹ Kingsway terminated weekly income replacement benefits on March 6, 2004. The parties were unable to resolve their disputes through mediation, and Mr. Nirwan applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

The issue in this motion is:

Is Kingsway entitled to an order requiring Mr. Nirwan to attend a Psychiatric Assessment and a Vocational assessment?

Result:

I do not have the jurisdiction to compel Mr. Nirwan to attend at psychiatric and vocational assessments.

My decision was made orally after hearing the motion with these reasons to follow.

THE FACTS:

The relevant facts are as follows: After Mr. Nirwan's accident of April 7, 2002, Kingsway paid Mr. Nirwan income replacement benefits until March 6, 2004, when they were terminated. At the pre-hearing discussion on February 23, 2005, Mr. Nirwan claimed income replacement benefits for the period from March 6, 2004 to date and "on-going". The parties also discussed productions and agreed that expert reports would be exchanged no later than August 1, 2005, even though the hearing date was scheduled for October 17, 2005. On June 10, 2005 and June 22, 2005 respectively, Mr. Nirwan provided Kingsway with a Vocational Assessment report and a Psychiatric Assessment report.

On July 25, 2005, Kingsway's representative wrote to Mr. Nirwan advising him of psychiatric and vocational assessments they wished him to undergo on July 27, 2005 and July 28, 2005. Mr. Nirwan's Counsel responded on July 25, 2005 stating that Mr. Nirwan would not attend the assessments.

Kingsway then filed a motion dated September 2, 2005 seeking an order requiring Mr. Nirwan to attend Psychiatric and Vocational Assessments on September 21, 2005 and September 15, 2005.

Argument:

Kingsway's representative argued that the reports filed by the Applicant in June 2005 were "late", and that Kingsway needed to have the Applicant attend Insurer's Examinations to "respond" to the new reports. Kingsway argued that they would be prejudiced if forced to proceed to Arbitration without having the opportunity to have the Applicant assessed by their (Kingsway's) medical and other practitioners. Kingsway added that the reports amounted to "new issues", and they had thus been taken by surprise.

Mr. Nirwan's response was threefold. First, he argued that an arbitrator has no jurisdiction to grant the relief sought, that is, an order requiring the Applicant to attend a medical examination. Second, Mr. Nirwan argued that the Applicant was not required to attend the examinations because the Insurer failed to provide proper notice for the examinations under section 42(2) of the SABS. Third, Mr. Nirwan argued that the medical examinations were not reasonably necessary because they had been scheduled solely to bolster the Insurer's position at the upcoming hearing. Also, the reports filed by the Insured could not be characterized as "late", because they were well within the time frames agreed to at the pre-hearing discussion in February 2005. Further, the issues raised in the reports were not new, as the Insurer had knowledge of a previous psychological report conducted by the same medical practitioner in November 2003. Finally, the Applicant's vocational assessment report could not have been a surprise to the Insurer as the Applicant had disclosed at the pre-hearing discussion in February 2005 that they would be seeking continuing and ongoing benefits after the ending of the two-year period.

ANALYSIS:

Arbitrator's Jurisdiction to Order an Insured to Attend a Medical Examination

The only relief sought by Kingsway in the present motion is an order requiring Mr. Nirwan to attend at a medical examination. As Arbitrator Wilson stated in Singh and Kingsway General Insurance Company (FSCO A02-001290, November 5, 2003 at page 9),

While it is generally accepted since F. S. and Belair (supra) that the power to prevent an abuse of process may permit a stay of an arbitration, there is no jurisprudence recognizing a power to order attendance.

Arbitrator Manji made a similar ruling in Granic and Allstate Insurance Company of Canada (OIC A-006615, January 30, 1995), and Arbitrator Blackman echoed this finding in M.S.D. and Citadel General Assurance Company (FSCO A01-001561, February 19, 2003). Thus, I accept Mr. Nirwan's argument and I find that an arbitrator does not have the jurisdiction to order an Insured to attend a medical examination.

The Sufficiency of the Notice Given

Section 42(2) of the SABS provides that the notice to be given to the Insured in regard to an Insurer's examination "shall state the reasons why the insurer requires the examination and shall specify a date for the examination that is at least five business days after the person receives the notice." The only notice provided in the motion record is at Tab D. That notice is dated July 25, 2005 and advises that assessments have been scheduled for July 27, 2005 and July 28, 2005. Clearly, this notice was given less than five business days before the scheduled assessments, and I find that this notice is void. There was thus no requirement for Mr. Nirwan to attend the July 25, 2005 and July 28, 2005 assessments.

Kingsway then argued that the Notice of Motion itself could be construed as a section 42(2) notice as it contemplates assessments scheduled for September 15, 2005, and September 21, 2005. Despite providing the Insured with more than the required five days notice, I do not find that the Notice of Motion constitutes a proper notice under section 42(2). Section 42 requires that the notice state the "reasons" for which the Insurer requires the Insured to undergo a medical examination. As stated by Arbitrator Rogers in Shave and Security National Insurance (FSCO A04-000839, January 18, 2005 at page 6), "The 'reasons' requirement of subsection 42(2) is satisfied by providing enough information for the Insured to make a decision whether to attend. Information as to the benefit at issue and the area of expertise of the examiner will usually satisfy this purpose." In the present instance, the Notice of Motion refers only to the need of the Insurer to "respond" to the reports filed by the Insured. There is no identification of the benefit at issue. Therefore, this Notice is also void.

Even if I erred in regard to these preliminary objections raised by the Insured, I find that there are compelling reasons for not granting the motion.

Reasonable and necessary

Arbitrators have consistently ruled that the onus is on the Insurer to prove that the medical examinations sought are reasonably necessary and that they have been requested to adjust the file in regard to the Insured's entitlement to benefits, rather than to serve as a means to obtain examinations to bolster the Insurer's case for hearing (Eidt and Pilot Insurance Company (FSCO A04-001277, February 11, 2005); and Singh and Kingsway (supra).

The timing of the proposed examinations has also been considered when making decisions in regard to reasonable necessity. As stated by Director's Delegate Draper 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."

In the present motion, Kingsway submitted no evidence that the request for examinations had been made for the purpose of adjusting the file. Indeed the motion itself states that the purpose of the examination is to "respond" to reports provided by Mr. Nirwan. Nor do I give much weight to Kingsway's argument that the reports from Mr. Nirwan were "late". In fact, the reports filed by Mr. Nirwan in June 2005 were well within the deadlines set out and agreed upon by Counsel for the parties at the pre-hearing. Further, there was no evidence that Kingsway had made requests to the Insured to attend medical examinations during the period following the pre-hearing discussion until after Mr. Nirwan filed their reports. Thus, I find that these requests can only be construed as seeking to bolster Kingsway's case.

Finally, Kingsway argued that the vocational and psychological issues raised in the reports were new and that they would be prejudiced at the hearing should they not be permitted to have Mr. Nirwan examined by their own experts. In response, Mr. Nirwan stated that Kingsway could not be surprised by a vocational assessment report. At the time of the pre-hearing discussion, the two-year mark had already elapsed and the Applicant had disclosed that they would be seeking continuing and ongoing income replacement benefits. In addition to this, the psychological issues had been raised in a previous psychological report prepared in November 2003 by the same specialist who prepared the more recent report. Kingsway did not deny receiving this previous report but argued that I should not consider this point because that report had not been included in the motion record.

I am not swayed by this argument. There are numerous references to the psychological report of November 2003 in the correspondence between the parties that has been filed. The November 2003 report is also referenced and discussed in the June 2005 report. Therefore, I find that the November 2003 report had been disclosed to Kingsway previously and the psychological issues are not new.

October 4, 2005

Edward Lee Arbitrator

Date

Financial Services Commission of Ontario