Financial Services Commission des

Commission services financiers

of Ontario de l’Ontario

Neutral Citation: 2008 ONFSCDRS 36

FSCO A07-001278

BETWEEN:

LYNN IRENE WILSON

Applicant

and

AVIVA CANADA INC.

Insurer

Before: John Wilson

Heard: February 1, 2008, at the offices of the Financial Services Commission of Ontario in Toronto.

Appearances: David S. Wilson for Ms. Wilson

Chad Townsend for Aviva Canada Inc.

Issues:

The Applicant, Lynn Irene Wilson, was injured in a motor vehicle accident on December 12, 2003. She applied for and received statutory accident benefits from Aviva Canada Inc. (“Aviva”), payable under the Schedule.¹ The parties were unable to resolve their disputes through mediation, and Ms. Wilson applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

The preliminary issue is:

Is Aviva entitled to an order that the applicant submit to Insurer’s Examinations pursuant to section 42 of the Schedule with a psychiatrist, oncologist and physiatrist” and an order and finding that the Insurer’s request for the assessments pursuant to section 42 with a physiatrist, oncologist are reasonable and necessary in order to assess entitlement to an Income Replacement Benefit?

Result:

Aviva is not entitled to the above orders at this time.

EVIDENCE AND ANALYSIS:

On Friday, February 1, 2008, I heard a motion brought by counsel for Aviva.

The relief requested was “An order that the applicant submit to Insurer’s Examinations pursuant to section 42 with a psychiatrist, oncologist and physiatrist” and “An order and finding that the Insurer’s request for the assessments pursuant to section 42 with a physiatrist, oncologist are reasonable and necessary in order to assess entitlement to an Income Replacement Benefit”.

While I have already provided the parties with an outline of my findings and the outcome of the motion in this matter, what follows are my full reasons.

Examinations in the context of litigation or insurance claims have no existence outside of the governing legislation, in this case the Schedule of the Insurance Act.

At common law there was no right to have a party to an action examined, even when the health of a person was in issue in the litigation.² Consequently, in insurance matters, there is no right to a medical examination outside of any power conceded in the contract or granted in the governing legislation.

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. This, however is not a court action governed by Rule 105.

It goes without saying that forcing an individual to undergo an unwanted medical examination can be considered both stressful and extremely invasive of a person’s privacy. Such orders should not be made lightly, nor without clear and cogent reasons.

In this matter the only relevant legislative provision covering examinations of an insured is section 42 of the Schedule. Section 42, by providing an insurer the right to as “often as is reasonably necessary, require an insured person to be examined under this section an insured” grants an apparently wide-ranging discretion to order assessments of insured claimants.

On the face of it, this power interferes with an insured’s expectation and indeed right not to be interfered with or subject to compulsory examination, or have the privacy and security of the person impaired.

While it is clear that the change to the common law brought about by section 42 and its predecessors, is effective to grant the Insurer the right to hold I.E’s, subject to certain notice requirements, it is also clear that the authorizing legislation must be construed strictly and the pre-conditions to such examinations strictly observed.

In dealing with an enactment that infringed on established common law rights, Ritchie J. wrote:

As I have indicated, I am of the opinion that any statutory provision authorizing police officers to invade the property of others without invitation or permission would be an encroachment on the common law rights of the property owner and in case of any ambiguity would be subject to a strict construction in favour of the common law rights of the owner.³

With regard to the first relief requested, I believe that it is well established that I have no jurisdiction⁴ to order anyone to undergo an examination whether under section 42 of the Schedule or otherwise.

The comments of Morden J.A. in McCombie v. Cadotte ⁵ in an analogous situation are relevant to this issue:

These considerations incline me to the view that the legislative scheme was intended to involve plaintiffs submitting to requests, possibly after some variation agreed upon with the defendant, of their own accord and not under the compulsion of a court order. I do not think that the legislature intended the medical examination scheme for settlement purposes to be more inflexible and onerous than the one provided for the purpose of trial.

While there is no provision in either the Insurance Act or the Schedule for an order compelling attendance, there are provisions outlining the consequences for non-attendance at a properly constituted section 42 examination. If Ms. Wilson is wrong and has no valid reason for non-attendance, then she will risk those consequences specified in the Schedule, not a mandatory order for attendance.

Nor would I agree to stay this arbitration, pending completion of the examination, since the end result would be the same — to coerce someone to do something that cannot be ordered directly.

Notice Pre-requisite:

With regard to the second relief requested in this motion, I am not convinced that the Insurer has provided sufficient information or particulars to convince me that the examinations requested are reasonable and necessary in the context of the adjustment of Ms. Wilson’s claim for accident benefits.

The same lack of particulars deprives Ms. Wilson of the ability to make an informed decision as to the risk or absence of risk of the proposed procedures and consequently make an appropriate decision as to attendance.

Section 42 of the Schedule provides for the notice of the examination to provide inter alia, the reasons for the examination and the type of examination that will be conducted and whether the attendance of the person is required during the examination.

There is no question that the notice identified that Aviva requested an examination by a psychiatrist, oncologist and physiatrist, and provided no other details of the nature of the examinations proposed.

While the notice is compliant with section 42(4)(c) of the Schedule, it does not provide the particularity required by section 42(4)(b) of the Schedule with regard to the type of examination required by the Insurer, nor address the question of whether the examination can be conducted without the attendance of the person.

That different information as to the nature of the examination is required for section 42(4)(b) other than for section 42(4)(c) as follows from the presumption against tautology. Ruth Sullivan identifies this principle as follows:

It is presumed that the legislature avoids superfluous or meaningless words, that it does not pointlessly repeat itself or speak in vain. Every word in a statute is presumed to make sense and to have a specific role to play in advancing the legislative purpose.⁶

The Schedule also specifically requires that an insurer specifically identify the names of the examining physicians and their specialty in the notice. Aviva however, claims that the requirements that it disclose the “reasons for the examination” and the “type of examination” are met by a reiteration of the information required by section 42(4)(c). As noted, such an interpretation would make the other sections redundant or superfluous.

I find it more consistent with principles of legislative interpretation that the phrase “type of examinations” means more than by whom and by what discipline the examinations are conducted. It is not unreasonable to read the provision as requiring some description of the nature of the procedure planned, since “type” can mean the “the general form, structure, or character distinguishing a particular group or class of things.”⁷

Required information:

While the Schedule does not define the information that would be reasonably necessary for a person to decide whether to attend an assessment or not, the Health Care Consent Act (H⁸ gives some guidance as to the key information required to make treatment decisions or to consent to health-related matters.⁹

In the absence of guidelines in the Insurance Act or the Schedule as to the type of information which must be provided as to the nature of and reason for the examination, these provisions give us some idea of the information required to be made available in the context of other health-related procedures.

Section 11(3) of the HCCA sets out the following minimum information requirements:

The matters referred to in subsection (2) are:

The nature of the treatment.
The expected benefits of the treatment.
The material risks of the treatment.
The material side effects of the treatment.
Alternative courses of action.
The likely consequences of not having the treatment.

In the context of a section 42 insurer’s examination, items 1, 3, 4, and 5 would likely be the most critical.

Section 11(2) of the HCCA also states:

Informed consent

A consent to treatment is informed if, before giving it,

(a) the person received the information about the matters set out in subsection (3) that a reasonable person in the same circumstances would require in order to make a decision about the treatment; and

(b) the person received responses to his or her requests for additional information about those matters.

In the minds of the legislators, it is not sufficient that generic boiler plate descriptions be provided, but that reasonable questions be answered, and that all the information required by a reasonable person be provided.

It is not unreasonable that the information required in the notice for a section 42 examination incorporate the same perception that reasonable people are entitled to know what is entailed in a proposed procedure before giving informed consent to that procedure.

Given the concerns Ms. Wilson expressed in her affidavit about the oncology examination in particular, it was critically important that the Insurer define the parameters of the examination so that the Insured could make a reasonable and informed decision as to attendance. This was not done in this case, and, consequently, she was not in a position to make informed consent as to the procedures proposed.

CONCLUSIONS:

It goes without saying that forcing an individual to undergo an unwanted medical examination can be considered both stressful and extremely invasive of a person’s privacy. Such an order should not be made lightly, nor without clear and cogent reasons.

While the law and the jurisprudence are clear that section 42 of the Schedule gives the insurers a right to override such normal privacy concerns, provided that the legal pre-conditions for the examination are met in this matter, I have found that those pre-conditions were not met.

While it may well have been reasonable to perform an unintrusive paper review of Ms. Wilson’s condition, based on the extensive material potentially available to the Insurer, this is not what was proposed. Indeed, despite Mr. Townsend’s assertion that “everyone knows what is involved in a physiatrist’s examination”, it is not at all clear on the evidence before me just what will be the parameters and the nature of the proposed examinations, and whether a less intrusive review is available to the assessor.

Given the potentially intrusive nature of a section 42 examination, it is appropriate to insist that Aviva abide by all the pre-conditions for an examination. These requirements are not onerous, and could easily have been provided by the Insurer.

The information that would have been provided, had the pre-conditions been fulfilled would have been useful to Ms. Wilson in deciding whether or not to attend at the examinations, and to put to rest any concerns she may have had about the safety and the appropriateness of the examinations.

In addition, without the full particulars of the proposed examinations, and some evidence as to the necessity of the types of examination proposed, I am unable to make the determination, requested by Aviva, that the proposed assessments pursuant to section 42 with a physiatrist, oncologist are reasonable and necessary in order to assess entitlement to an Income Replacement Benefit.

EXPENSES:

Mrs. Wilson was successful in resisting Aviva’s motion. Therefore, I exercise my discretion to award Ms. Wilson her expenses incurred in this preliminary issue hearing. If the parties are unable to reach an agreement as to the quantum of the expenses to be ordered within 30 days, I will receive brief written submissions as to expenses.

March 5, 2008

John Wilson Arbitrator

Date