Aviva Canada Inc. v. Wilson, 2009 ONFSCDRS 103

Financial Services Commission of Ontario

Commission des services financiers de l’Ontario

Neutral Citation: 2009 ONFSCDRS 103

Appeal P08-00007

OFFICE OF THE DIRECTOR OF ARBITRATIONS

AVIVA CANADA INC. Appellant

and

LYNN IRENE WILSON Respondent

BEFORE: David Evans

REPRESENTATIVES: Leilah Edroos for Aviva Canada Inc. David S. Wilson for Ms. Wilson

HEARING DATE: February 20, 2009

APPEAL ORDER

Under section 283 of the Insurance Act, R.S.O. 1990, c.I.8, as amended, it is ordered that:

1. The arbitrator’s decision dated March 5, 2008 is confirmed and the appeal is dismissed.

2. If the parties are unable to agree about expenses of this appeal, an expense hearing may be arranged in accordance with Rule 79 of the Dispute Resolution Practice Code.

July 20, 2009

David Evans Director’s Delegate

Date

REASONS FOR DECISION

I. NATURE OF THE APPEAL

Aviva Canada Inc. appeals the arbitrator’s order that it is not entitled to various insurer examinations under s. 42 of the SABS–1996.¹

II. BACKGROUND

Ms. Wilson, injured in a motor vehicle accident on December 12, 2003, claimed statutory accident benefits from Aviva.

By letter dated August 27, 2007, Aviva asked Ms. Wilson to attend insurer examinations (IEs) with a psychiatrist, oncologist and physiatrist “to assist the Insurer in determining your eligibility to receive a specified benefit.” Ms. Wilson refused to attend these IEs. Aviva then brought a motion seeking an order requiring her to attend at the IEs and an order finding that its request for the IEs was reasonable and necessary.

At the beginning of the reasons in his decision, the arbitrator noted that there is no jurisdiction to require an applicant to attend at an IE. At the end of his decision, he found that, “without the full particulars of the proposed examinations, and some evidence as to the necessity of the types of examination proposed,” he could not determine if the IEs were reasonable and necessary. In between these poles, he devoted several pages to the alleged inadequacies of the insurer’s notice for failing to set out the details required for consent to treatment under the Health Care Consent Act, 1996, S.O. 1996, c. 2 (HCCA).

A preliminary issue arose at the appeal hearing with respect to evidence that I will deal with below.

III. ANALYSIS

Subsection 42(1) of the SABS–1996 provides that “For the purposes of assisting an insurer determine if an insured person is or continues to be entitled to a benefit under this Regulation for which an application is made, an insurer may, as often as is reasonably necessary, require an insured person to be examined under this section by one or more persons chosen by the insurer who are members of a health profession….”

As the arbitrator correctly noted, arbitral case law has consistently held that there is no jurisdiction to order an applicant to attend an IE.² He then incorrectly added the following: “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.” As I recently re-stated in Personal Insurance Company of Canada and Thevaranjan, (FSCO P07‑00022, April 16, 2009), “The arbitral rule therefore allows an arbitrator to adjourn a hearing to allow for an insurer examination in the case of an ongoing claim where, considering all the circumstances, fairness requires it and the s. 42 requirements are otherwise met.”

However, the first hurdle Aviva had to get over was proving that the IEs were reasonably necessary. The arbitrator found that it had not provided him with that evidence. It would have been preferable if he had gone into somewhat more detail (other than the allegedly inadequate notice, a point I will return to), such as the fact this was a first request and was made in response to medical reports from the applicant. Nonetheless, I am not persuaded that the arbitrator was clearly wrong in finding the evidence inadequate. For instance, the evidence was in the form of a solicitor’s affidavit and not from the adjuster explaining why the reports were necessary ­– at least in part – to help the insurer adjust the file.

This would be sufficient to dispose of the matter, except that I wish to also deal with the arbitrator’s discussion about notice.

Subsection 42(4) provides that, where an insurer requires an insured person to attend an IE under s. 42, it must provide a notice that includes “the type of examination that will be conducted and whether the attendance of the insured person is required during the examination” [s. 42(4)(b)] and “the name of the person or persons who will conduct the examination, the regulated health professions to which they belong and their titles and designations indicating their specialization, if any, in their professions” [s. 42(4)(c)].

The arbitrator treated the letter dated August 27, 2007, to Ms. Wilson as the s. 42(4) notice.³ The arbitrator found that while the notice was adequate with respect to s. 42(4)(c) in naming the professionals and their disciplines, it was not with respect to s. 42(4)(b) because, the arbitrator stated, “the phrase ‘type of examinations’ means more than by whom and by what discipline the examinations are conducted.” He then analogized with the provisions of the HCCA to find that “type of examination” includes the nature of the treatment,⁴ the material risks of the treatment, the material side effects of the treatment, and alternative courses of action.

I disagree with the arbitrator’s approach because the arbitrator applied the HCCA without any submissions from the parties. Before such a wide-ranging notice requirement could possibly be imposed, it seems to me that submissions about its applicability would be necessary. I also note that, by way of contrast, in Shin and Co-Operators General Insurance Company, (FSCO A06-000232, May 25, 2009), the arbitrator stated that “An ‘examination that will be conducted’ is, for example, a psychiatric examination, a neurological examination, a functional abilities evaluation, to name but a few types of examinations.”

I disagree with the arbitrator on another point. The arbitrator appeared to suggest that the insurer had to consider a paper review before it could require the insured to attend an IE. However, s. 42(4)(b) provides only that the insurer’s notice has to state whether or not the person’s attendance is required.

Despite these disagreements of mine, the insurer still has to show that the IE is required. Information about the type of examination proposed, especially if it is an apparently unusual request like the one for an oncology exam, will obviously be helpful in proving that point. In that light, I can understand why the arbitrator stated that it was not at all clear on the evidence before him just what would be the parameters and the nature of the proposed examination.

I will now turn to the preliminary issue at the appeal hearing mentioned above. The August 27, 2007 letter indicated that an OCF-25, a Notice of Examination,⁵ was enclosed. However, the OCF-25 itself was not included in Tab Q of the solicitor’s affidavit. Counsel for Aviva sought to file a number of OCF‑25s that she alleged must have been before the arbitrator. However, they are not in the record as far as I can determine, counsel for Ms. Wilson had pointed out the problem with referring to the OCF‑25s in his submissions filed months before the appeal hearing, and he also stated as an officer of the court that the OCF-25s were not part of the record. I declined the request by counsel for Aviva for an adjournment to obtain an affidavit from the insurer’s counsel who had attended at the arbitration hearing. I stated that I would assume the OCF‑25s were not before the arbitrator and that he made his decision based on the material in Tab Q of the affidavit. Furthermore, I had granted a stay of the arbitration hearing and I was not prepared to order a further adjournment. In any event, my decision does not turn on the presence or absence of those OCF-25s.⁶

The appeal is dismissed.

IV. EXPENSES

If the parties are unable to agree about expenses of this appeal, an expense hearing may be arranged in accordance with Rule 79 of the Dispute Resolution Practice Code.

July 20, 2009

David Evans Director’s Delegate

Date

Footnotes

1. 1The Statutory Accident Benefits Schedule — Accidents on or after November 1, 1996, Ontario Regulation 403/96, as amended.
2. 2Granic and Allstate Insurance Company of Canada, (OIC A-006615, January 30, 1995).
3. 3The letter appears as Tab Q in the solicitor’s affidavit I referred to.
4. 4The arbitrator stated that, even though the HCCA specifically excludes assessments from its purview, the requirement of consent converts an assessment back into a treatment.
5. 5Pursuant to s. 69.10.1 of the SABS, this is a form approved by the Superintendent.
6. 6In Shin, the arbitrator found the OCF-25 form itself to be defective because under Part 2, “Type(s) and Reasons for the Examination,” it treats “type of examination” as relating to the benefits claimed, as there are check boxes for various benefits. The arbitrator in Shin stated that “Post-104 weeks disability, medical and rehabilitation benefits and housekeeping and home maintenance are not an examination that is conducted.” See also Faiz and Wawanesa Mutual Insurance Company, (FSCO A06‑001588, August 31, 2007).