Neutral Citation: 2009 ONFSCDRS 54 FSCO A08-000681

BETWEEN:

IIIIA TROUBITSINE Applicant

and

TTC INSURANCE COMPANY LIMITED Insurer

DECISION ON A MOTION

Before: Elizabeth Nastasi Heard: February 11 and 12, 2009, at the offices of the Financial Services Commission of Ontario in Toronto.

Appearances: Owen Elliot for Mr. Troubitsine Guri Pannu for TTC Insurance Company Limited

Issues:

The Applicant, IIiia Troubitsine, alleges that he was injured in a motor vehicle accident on November 10, 2006. He applied for statutory accident benefits from TTC Insurance Company Limited ("TTC"), payable under the Schedule.¹ Disputes arose and the parties were unable to resolve their disputes through mediation. Mr. Troubitsine applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

TTC brought a motion in respect of the following issues:

Is Mr. Troubitsine ineligible for income replacement benefits, attendant care benefits, housekeeping and home maintenance benefits and medical and rehabilitation benefits by reason of his failure to attend insurer examinations pursuant to section 42 of the Schedule?
What are the consequences of Mr. Troubitsine's failure to attend an examination under oath pursuant to section 33(1.1) of the Schedule?
Is either party liable to pay the other's legal expenses in respect of this hearing, pursuant to subsection 282(11) of the Insurance Act?

Result:

As a result of Mr. Troubitsine's failure to attend insurer examinations without a reasonable explanation, TTC is not liable to pay Mr. Troubitsine for income replacement benefits, attendant care benefits, housekeeping and home maintenance benefits and medical and rehabilitation benefits for the period from February 27, 2007 to November 10, 2008.
As a result of Mr. Troubitsine's failure to attend scheduled examinations under oath without a reasonable explanation, TTC is entitled to rely upon section 33(2) of the Schedule and is not liable to pay benefits from January 22, 2007 to June 15, 2007 and then ongoing from November 1, 2007 until such time as Mr. Troubitsine complies with section 33(1.1).
The arbitration proceedings are stayed pending Mr. Troubitsine's attendance at an examination under oath to be scheduled by TTC in accordance with the notice requirements set out in the Schedule and within 60 days of the issuance of this order.
The decision on legal expenses is reserved to be resolved in accordance with Rules 75 through 79 of the Dispute Resolution Practice Code.

EVIDENCE AND ANALYSIS:

The evidence tendered by the parties included a series of letters between TTC and Mr. Troubitsine and/or his solicitors. TTC submitted evidence by way of an affidavit by claims adjuster Jennifer McIver. Mr. Troubitsine gave evidence at the hearing.

Mr. Troubitsine alleges that he was on a TTC bus on November 10, 2006 at approximately 3:00 a.m. His evidence was that the bus stopped suddenly and that he hit his face and head on the seat in front of him and sustained injuries to his back, neck, jaw, teeth and eyes.²

(a) Failure to attend Insurer medical examinations[^3]

The Law

Section 42 of the Schedule provides that, for the purposes of assisting an insurer in determining if an insured person is or continues to be entitled to a benefit, an insurer may, as often as is reasonably necessary, require an insured person to be examined by one or more persons chosen by the insurer who are members of a health profession.

If an insured person fails to attend an insurer examination for which proper notice has been provided, an insurer can refuse to pay specified benefits relating to the period after the insured person failed to comply with section 42(10) of the Schedule and before the insured person submits to the examination.⁴

Evidence and Findings

Mr. Troubitsine was advised by TTC in a letter dated February 20, 2007 that examinations had been set up to determine his entitlement to income replacement benefits, attendant care benefits, housekeeping and home maintenance benefits and medical and rehabilitation benefits. The letter advised that arrangements were made for the Applicant to attend a psychiatric assessment on February 27, 2007, an orthopaedic assessment on February 28, 2007 and an in-home assessment on March 5, 2007. Mr. Troubitsine failed to attend any of the scheduled assessments.

On October 6, 2008, Mr. Troubitsine's counsel, Mr. Mazin, wrote to Ms. McIver, TTC claims adjuster, and advised that the Applicant was now willing to attend the insurer examinations previously scheduled. Mr. Troubitsine attended the rescheduled examinations on November 10, 12, and 14, 2008.

The Applicant conceded that since he provided no reasonable explanation for his non-attendance at the previously scheduled insurer examinations, no benefits are owing to him for the period from February 27, 2007 to November 10, 2008.

Accordingly, I find that TTC is not liable to pay Mr. Troubitsine for income replacement benefits, attendant care benefits, housekeeping and home maintenance benefits and medical and rehabilitation benefits for the period from February 27, 2007 to November 10, 2008.

(b) Failure to attend examinations under oath

The Law

Section 33 of the Schedule provides as follows:

33(1.1) If requested by the insurer, a person who applies for a benefit under this Regulation as a result of an accident shall submit to an examination under oath, but is not required to,

(a) submit to more than one examination under oath in respect of matters relating to the same accident; or

(b) submit to an examination under oath during a period when the person is incapable of being examined under oath because of his or her physical, mental or psychological condition. O. Reg. 281/03, s. 12 (1).

(1.2) A person is entitled to be represented at his or her own expense at the examination under oath by such counsel or other representative of his or her choice as the law otherwise permits. O. Reg. 281/03, s. 12 (1).

(1.3) The insurer shall make reasonable efforts to schedule the examination under oath for a time and location that are convenient for the person and shall give the person reasonable advance notice of the following:

The date and location of the examination.
That the person is entitled to be represented in the manner described in subsection (1.2).
The reason or reasons for the examination.
That the scope of the examination will be limited to matters that are relevant to the person's entitlement to benefits. O. Reg. 281/03, s. 12 (1).

(1.4) The insurer shall limit the scope of the examination under oath to matters that are relevant to the person's entitlement to benefits under this Regulation. O. Reg. 281/03, s. 12 (1).

(2) The insurer is not liable to pay a benefit in respect of any period during which the insured person failed to comply with subsection (1) or (1.1). O. Reg. 281/03, s. 12 (2).

(3) Subsection (2) does not apply in respect of a non-compliance with subsection (1.1) if,

(a) the insurer fails to comply with subsection (1.3) or (1.4); or

(b) the insurer interferes with the insured person's right to be represented as described in subsection (1.2). O. Reg. 281/03, s. 12 (2).

(4) If an insured person who failed to comply with subsection (1) or (1.1) subsequently complies with that subsection, the insurer,

(a) shall resume payment of the benefit, if a benefit was being paid; and

(b) shall pay all amounts that were withheld during the period of non-compliance, if the insured person provides a reasonable explanation for the delay in complying with the subsection. O. Reg. 281/03, s. 12 (2).

Evidence and Findings

TTC's position is that it provided proper notice of an examination under oath to the Applicant on three occasions and that to date, Mr. Troubitsine has never attended an examination under oath. TTC submits that at no point prior to the hearing before me on February 11, 2009, did Mr. Troubitsine or his counsel provide any explanation for his non-attendance at the scheduled examinations under oath.

TTC is seeking an order first, suspending Mr. Troubitsine's entitlement to benefits for the period of non-compliance with section 33(1.1) and second, compelling him to attend for an examination under oath prior to an arbitration hearing taking place.

The Applicant's position is that there has been no period of non-compliance with section 33(1.1) for two reasons: first, the notices sent by TTC were allegedly deficient and did not comply with section 33(1.3) of the Schedule; and second, the Applicant was prepared to attend at the June 15, 2007 examination and had a reasonable explanation for not attending.

Mr. Troubitsine submitted an Application for Accident Benefits to TTC under cover letter dated December 5, 2006⁵ from Mr. Troubitsine's legal representative, Mr. Alexander Mazin. TTC responded to Mr. Mazin on December 12, 2006.⁶ This letter outlined TTC's position stating that it received limited information about the circumstances that surrounded the accident and an investigator was being assigned. Further, the letter stated that no benefits were payable because there was no information to confirm that the Applicant's injuries arose as a result of the direct use or operation of a TTC vehicle. TTC's evidence is that there was no occurrence report, customer service report or supervisor report made for an on-board incident at 3:00 a.m. on a TTC bus at Yonge and Finch on the day of the alleged accident.

On December 20, 2006, Mr. Robert Mitchell, Claims Adjuster, wrote to Mr. Mazin and advised he had been assigned to investigate the circumstances of Mr. Troubitsine's claim and that an examination under oath was scheduled for January 4, 2007.⁷ The notice provided that if this date was not convenient, the Applicant should contact him within 48 hours and provide three alternative dates and times.

In response, Mr. Mazin advised Mr. Mitchell via fax dated December 28, 2006, that he had not received the Applicant's instructions to proceed with the examination under oath.⁸

Mr. Mitchell subsequently cancelled this January 4, 2007 examination under oath, however, this cancellation was due to illness and not related to Mr. Troubitsine's availability. Mr. Mitchell wrote to Mr. Mazin again in a letter dated January 9, 2007 advising that the examination under oath was rescheduled to January 22, 2007. This second notice also set out the reason for requiring the examination, detailed the consequences of failure to attend and requested three alternative dates if the scheduled date was not convenient to the Applicant.⁹

The Applicant failed to attend the scheduled examination on January 22, 2007 and there was no explanation provided to TTC for the non-compliance. On January 26, 2007, Mr. Mitchell wrote to Mr. Mazin advising him to contact his office if the Applicant wished to attend an examination under oath and until that time however, no benefits were payable.¹⁰

On February 2, 2007, Ms. McIver wrote to Mr. Mazin again advising that no benefits were payable because TTC was not able to confirm that Mr. Troubitsine's injuries arose out of the direct use or operation of a TTC vehicle. This letter again advised Mr. Troubitsine that he should contact Mr. Mitchell if he wished to attend an examination under oath and that no benefits were payable until that time.¹¹

The next contact in respect of this issue came almost two months later on March 30, 2007 when Ms. Samiya Ahmad from Mr. Mazin's office wrote to Mr. Mitchell advising that Mr. Troubitsine was now prepared to attend an examination under oath. The letter provided three potential dates in June 2007 when Mr. Troubitsine was available – June 13, June 14 and June 15, 2007.¹²

On April 10, 2007, Mr. Mitchell responded to Ms. Ahmad's letter and confirmed that an examination under oath was scheduled for June 15, 2007.¹³ This letter once again stated that the Insurer is not liable to pay for any period in which the Applicant has failed to comply with section 33(1) or section 33(1.1). Mr. Troubitsine did not attend the examination on June 15, 2007. To date Mr. Troubitsine has not attended an examination under oath.

Mr. Troubitsine submits that the notices sent to him by TTC were defective in that they did not make reference to the fact that he was entitled to be represented by counsel or other representative as set out in paragraph 33(1.3)2 of the Schedule. In addition, Mr. Troubitsine submits that the notices did not adequately set out the scope of the examination as required by paragraph 33(1.3)4 of the Schedule.

I find that the notices sent to the Applicant with respect to the examinations under oath were sufficient in meeting the requirements of the Schedule. While I agree that in the context of consumer protection legislation, an insurer must be held to a high standard when communicating with the insured about their rights, I find that TTC has met its obligation in this case.

Mr. Troubitsine was represented by counsel from the beginning of the Application process and there was clear and continuous communication between counsel and TTC throughout. The fact that the Notice did not include specific information about the Applicant's right to be represented did not result in any prejudice to the Applicant. Further, section 68(2) of the Schedule permits notice of an examination under oath to be delivered to an insured's solicitor and does not require notice to be sent to both the insured and their solicitor.

I find that the notices also adequately set out the scope of the examination. The reason and purpose for the examination as well as the consequences for not attending were made clear in the correspondence from both Ms. McIver and Mr. Mitchell. I find that the notices were not deficient and that Mr. Troubitsine received timely and proper notice as required by section 33(1.3) of the Schedule.

The Applicant did not provide any explanation for his non-attendance at the January 4, 2007 and January 22, 2007 examinations. Further, there was no explanation provided for the lack of response to the subsequent letters sent to the Applicant's counsel setting out that they were to advise when the Applicant was available. Mr. Troubitsine's position is that he has a reasonable explanation for not attending the next scheduled examination on June 15, 2007. Mr. Troubitsine's evidence before me was that he was incarcerated some time in March 2007 until approximately October 2007.

I find that Mr. Troubitsine had a reasonable explanation for not attending the examination under oath scheduled for June 15, 2007. It was not until the hearing itself – almost two years after the fact – that TTC was advised of this explanation. It was clear that Mr. Troubitsine's counsel was also hearing this information for the first time at this motion.

Despite having been amenable to attending an examination under oath at some point in the spring of 2007, no evidence was offered by the Applicant with respect to why from November 1, 2007 onward he had still not attended for the examination. There was no evidence tendered by either party with respect to what communication took place between TTC and Mr. Troubitsine from the time of his release from incarceration to date with respect to any further requests to attend an examination under oath. Counsel for TTC did indicate that they have continued to request that Mr. Troubitsine attend at an examination under oath and that a discussion to this effect took place at the pre-hearing on September 23, 2008. There was no evidence tendered, however, with respect to any written requests or notices following the June 15, 2007 non-attendance.

For all of the reasons above, I find that Mr. Troubitsine did not attend the examinations scheduled for January 4, 2007, January 22, 2007 and June 15, 2007 as required of him by TTC pursuant to section 33(1.1) of the Schedule. I find that, other than for the period of his incarceration from March to approximately October 2007, he has provided no reasonable explanation for his non-attendance.

TTC submits that the date of non-compliance should commence January 4, 2007 when the first examination under oath was scheduled. Despite the fact that this examination had to be cancelled due to illness of the investigator and not for any reason related to Mr. Troubitsine. TTC argues that it was evident Mr. Troubitsine had no intention of attending this examination. TTC argued that Mr. Mazin's reference to "not having instructions" amounted to Mr. Troubitsine not agreeing to attend the examination scheduled for January 4, 2007.

Although it may be the case that Mr. Troubitsine had no intention of attending the January 4, 2007 examination, I do not find that this date could be a possible first date of non-compliance. The examination was cancelled prior to the scheduled date and as such Mr. Troubitsine could not be in non-compliance with an event that did not take place – there was no examination to comply with on that day.

Accordingly, TTC is entitled to rely upon section 33(2) and is not liable to pay a benefit from January 22, 2007 to June 15, 2007 and then ongoing from November 1, 2007 to such time as Mr. Troubitsine attends for an examination under oath. The fact that TTC has not scheduled any examinations since that date is not an issue in this case. After each of the examinations that Mr. Troubitsine did not attend, TTC made it clear that if he should change his mind and wish to discuss scheduling an examination under oath, that he should contact TTC. At this point the obligation was on Mr. Troubitsine to advise TTC of his availability and intention to attend an an examination.

In addition to the remedy set out in section 33(2) of the Schedule, TTC is seeking an order compelling the Applicant to attend for an examination under oath. This motion was originally scheduled to also include a preliminary issue hearing to determine whether Mr. Troubitsine was in an "accident" as defined by section 2 of the Schedule. The hearing of that issue has been postponed to follow the outcome of this motion. TTC submits that without an examination under oath, the TTC has been unable to obtain basic information and details about the alleged accident. Further, TTC submits that if it is forced to proceed without an examination, it would be hearing this evidence for the first time at the hearing itself. As such, it will be seriously prejudiced in its ability to adequately prepare for the hearing.

The Applicant submits that I do not have the jurisdiction to compel him to attend for an examination under oath. Mr. Troubitsine argued that where the statute sets out a clear remedy for non-compliance, an arbitrator should not step outside the four corners of the legislation and provide for an additional remedy. Further, the Applicant submits that the Insurer will have its chance for an examination under oath at the hearing itself.

I agree that where a legislative provision provides for an express remedy, a statutory decision maker has limited jurisdiction to fashion other remedies.¹⁴ However, where the available remedy is not adequate in addressing issues of significant unfairness, then an arbitrator has a duty to prevent an abuse of the process. The Statutory Powers Procedure Act ("SPPA") provides arbitrators with the authority to control the hearing process.¹⁵ Section 23(1) states that "a tribunal may make such orders or give such directions in proceedings before it as it considers proper to prevent abuse of its processes."

In Balanki and Zurich¹⁶ and Salah and State Farm¹⁷, the insurers sought to stay the arbitration due to the non-attendance of the insured at the examination under oath. The Arbitrators in both cases concluded that the only remedy provided under the section is a suspension of benefits (section 33(2)) or if non-compliance is unreasonable, the loss of those benefits for the period of non-compliance (section 33(4)). Although Arbitrator Muir in Balanki and Zurich declined to grant a stay, he does make note of the fact that there were no significant fairness issues in that case. Further, he notes that he did not receive any submissions with respect to the adequacy of the available remedy under the Schedule.

In Balanki and Zurich, a parallel is drawn to cases that have considered the issue of non-attendance at a section 42 medical assessment. Similarly, a stay is not one of the remedies prescribed by the Schedule in the context of a section 42 assessment, however this remedy has been employed by arbitrators as a means to "address issues of fairness between the parties, which the available remedies in section 42 and elsewhere in the Schedule could not adequately address."¹⁸

In considering the issue of fairness, Director's Delegate Naylor in F.S. and Belair¹⁹ found that Belair was entitled to a stay of the arbitration until Ms. S attended the requested section 42 assessment. In F.S. and Belair, it was the potential for significant unfairness, bordering on an abuse of process, which resulted in the arbitrator crafting a remedy that was not specifically set out in the statute. Director's Delegate Naylor stated that:

In the arbitration process, the insurer's right to require an examination is subject to the general discretion of the tribunal to control its own processes in the context of the overall objectives of the system. These include adequate disclosure, settlement of cases and a fair, informed hearing of the issues remaining in dispute. ²⁰

Although arbitrators have stepped outside of the prescribed remedies in the case of non-compliance with section 42 assessments and ordered a stay of the arbitration proceedings, they have not gone so far as to compel attendance at a medical assessment. An examination under oath, however, serves a very different role in the arbitration process than a medical assessment. Most importantly, an examination under oath does not raise the obvious invasion of privacy concerns that compelling someone to undergo a medical exam would raise. Attending an examination under oath is part of the more general disclosure obligations placed on a claimant making a claim for benefits. For cases in which there are potential allegations of fraud, an examination under oath is an important investigative tool. It can assist in assessing credibility as well as identifying potential witnesses and relevant documents.

Typically, a request for an insured to attend an examination under oath pursuant to section 33(1.1) is part of the regular course of the initial investigation and file adjustment of a claim for accident benefits. The examination would ordinarily occur before and outside of the dispute resolution process. This case is somewhat unique in that TTC has questioned whether an accident in fact occurred. From the outset, TTC has taken the position that it has not received any information to confirm that Mr. Troubitsine's injuries arose as a result of the direct use or operation of a TTC vehicle. This concern places a greater importance on the need for an examination under oath.

In this case, by refusing to attend an examination under oath, the Applicant has deprived the Insurer of the opportunity to gather basic information pertaining to the details of the accident. TTC has been prevented from conducting a complete investigation of the case. At this stage, TTC has been prejudiced by the passage of time in its ability to locate potential witnesses and evidence regarding the night in question. Further, since the arbitration process does not usually permit examinations for discovery, TTC is limited in its ability to prepare and respond to the evidence that will be led at the upcoming preliminary issue hearing yet to be scheduled. This will not only result in unfairness but could result in delay if the Insurer requests an adjournment following the examination-in-chief of the Applicant in order to prepare for its cross-examination of the Applicant.

The arbitration process is intended to provide a timely, cost effective and efficient alternative to court proceedings.²¹ I find that Mr. Troubitsine's actions of failing to attend at any of the scheduled examinations under oath and further not providing any explanation for his non- attendance has resulted in significant unfairness to TTC. Despite having found that there was a period for which Mr. Troubitsine had a reasonable explanation for his non-attendance, this reason was not provided to TTC until today's motion – almost two years later. I find that to allow him to proceed to a hearing in the face of this non-compliance will result in an abuse of process.²²

Although I agree with TTC that the available remedy under section 33(2) of the Schedule is not adequate to address the fairness issues and potential prejudice in this case, I do not agree that an order compelling Mr. Troubitsine to attend at an examination under oath is the most appropriate remedy. I find that ordering a stay of the proceedings until the Applicant attends for an examination under oath is a more appropriate remedy in this case.

TTC did not request a stay as part of the relief sought in respect of this motion nor did it provide an adequate explanation as to why a stay of the proceedings was not being sought in this case. I queried TTC as to what the consequences would be if the Applicant failed to attend at an examination under oath if I issued an order compelling him to do so. TTC's response was that it would be required to re-attend on another motion – presumably seeking either a stay or a dismissal of the Application. I find that an order staying the proceedings at this time would prevent this potential additional step and prevent adding more potential time and expense to the process.

Another difficulty in ordering Mr. Troubitsine to submit to an examination under oath is the fact that at this time there is no examination scheduled for him to attend. I was not provided with any information as to where and when any examination would take place. In addition, I also considered the consequences if TTC failed to schedule another examination. The preliminary issue hearing would then proceed without the Applicant having attended for an examination under oath – a result which would not address the issues of fairness raised by TTC.

For these reasons, I find that the arbitration proceedings are stayed pending Mr. Troubitsine's attendance at an examination under oath as scheduled by TTC in accordance with the notice requirements set out in the Schedule and within 60 days of the issuance of this order.

EXPENSES:

I encourage the parties to settle the matter of expenses between themselves. However, if they are unable to reach an agreement, they may request a determination of the issue by writing to the Commission within 30 days of this order, as set out in Rule 79.1 of the Dispute Resolution Practice Code.

April 30, 2009

Elizabeth Nastasi Arbitrator

Date

Financial Services Commission of Ontario