S. S. v. Aviva Insurance Company, 2017 CanLII 33689

Date: 2017-04-26

Tribunal File Number: 16-002772/AABS

Case Name: 16-002772 v Aviva Insurance Company

In the matter of an Application pursuant to subsection 280(2) of the Insurance Act, RSO 1990, c I.8, in relation to statutory accident benefits

Between:

S. S.

Applicant

and

Aviva Insurance Company

Respondent

PRELIMINARY HEARING DECISION

Adjudicator: Anna Truong

Appearances: Lisa Bishop, Counsel for the Applicant Danielle Wilkinson, Counsel for the Respondent

Heard in writing on: March 27, 2017

OVERVIEW

1This is a preliminary hearing for a motion brought by the respondent to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) to prohibit the applicant from bringing an application for statutory accident benefits, because he failed to attend an Insurer’s Examination (“IE”) pursuant to section 44 of the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the “Schedule”).

ISSUES TO BE DECIDED

2The following are the issues to be decided:

1. Is the applicant in non-compliance with section 44 of the Schedule for failing to attend the scheduled examination with Dr. Greg Gelman, general practitioner, on September 17, 2015?
2. Should the applicant’s claim for the cost of a psychological assessment by Dr. Shaul of Downsview Healthcare Inc. dated July 6, 2015 in the amount of $1,855.39 be dismissed, because it is not an issue in dispute?
3. Is the respondent entitled to costs of the proceeding?

RESULT

3Both parties agree in their submissions that the cost of the psychological assessment is no longer an issue in dispute.

4Based on the totality of the evidence before me, I find that the applicant is in non-compliance with section 44 of the Schedule. Therefore, the applicant is barred from proceeding with his application. Pursuant to section 55 of the Schedule, his current application is dismissed and the Tribunal file is closed.

5The respondent is not entitled to costs of the proceeding.

FACTS

6The applicant was involved in an automobile accident on October 3, 2014, and sought benefits pursuant to the Schedule. The applicant submitted several treatment plans for medical and rehabilitation benefits.

7The respondent denied these treatment plans, taking the position that the applicant’s injuries were predominantly minor as defined by the Schedule and subject to the Minor Injury Guideline (“MIG”), and gave the applicant notice that it required him to attend an IE.

8The respondent scheduled and rescheduled IEs over the span of approximately nine months for the applicant to attend. This is outlined in the chart below:

Date of Notice

Scheduled Appointment

Assessor

January 7, 2015

January 22, 2015

Dr. Greg Gelman, General Practitioner

January 9, 2015

February 3, 2015

Dr. Monique Costa El-Hage, Psychologist

January 27, 2015

February 23, 2015

Dr. Ian Finklestein, General Practitioner

February 6, 2015

February 24, 2015

Dr. Monique Costa El-Hage, Psychologist

March 9, 2015

April 9, 2015

Dr. Monique Costa El-Hage, Psychologist

August 19, 2015

September 17, 2015

Dr. Greg Gelman, General Practitioner

9The applicant did not attend any of the IEs listed in the chart above and to date has not attended a single IE with respect to the indexed accident.

10In a letter dated July 7, 2016, approximately 18 months after the respondent’s first Notice of Examination, the applicant wrote to the respondent stating that he was willing to attend an IE and requested that the respondent provide three different dates and times for each IE so that the applicant can choose from them. The letter further stated that the applicant failed to attend all the previous IEs, because the notices were not compliant with the Schedule. The letter did not indicate why and how the notices were non-compliant.

11The respondent did not reschedule the IEs and the applicant submitted an application to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”).

ANALYSIS

12The applicant submits that he is in compliance with section 44 of the Schedule, because no proper notice was provided by the respondent and no proper IEs were scheduled. The applicant argues that the notices were insufficient, because they do not provide the medical and any other reasons why payment of the proposed benefit was denied.

13The respondent submits that the applicant is in non-compliance with section 44 of the Schedule and it has complied with all the requirements under section 44 and section 38 of the Schedule. Specifically, the respondent submits that its Notices of Examination are sufficient and the applicant chose to not attend the examinations in an attempt to frustrate the process. The respondent argues that this is supported by the fact that the applicant waited 18 months to provide the respondent with a reason for non-attendance.

Sufficiency of Notice

14Section 44 of the Schedule requires an Insurer to provide “medical and any other reasons”, when requesting that an Insured Person attend an IE. The issue of what wording might satisfy the requirement of “medical and any other reasons” was considered in the Financial Services Commission of Ontario (“FSCO”) Appeal decision of Kadian Augustin v. Unifund Insurance Company, FSCO A12-000452 (“Augustin”), by Arbitrator Susan Sapin, released on November 13, 2013. This case was submitted to me by both parties.

15In this seminal case, Arbitrator Sapin conducted a thorough analysis of the regulatory scheme and concluded that the Insurer’s notice fell short of the legislative requirements. On page 12 of her decision, Arbitrator Sapin outlines the requirements that an Insurer must satisfy to meet its obligation of providing medical and any other reasons for the IE. Arbitrator Sapin states that where an Insurer believes that the MIG might apply, as in the current case, the Insurer must indicate, at a minimum, that it has:

1. Reviewed the treating health practitioner’s opinion;
2. Reviewed the MIG and compared it to the treating health practitioner’s opinion; and
3. Concluded that, in the view of the Insurer, the applicant’s treating health practitioner has not provided compelling evidence that the applicant’s injuries fall outside the MIG.

16While I am not bound by FSCO decisions, I find Arbitrator Sapin’s reasons in Augustin persuasive and I agree with her analysis. Applying the analysis in Augustin to the current case, I find that the notice provided by the respondent adequately sets out the medical and any other reasons for the IE. All of the respondent’s notices state the following:

Upon review of the minor injury guideline and the treating practitioner’s medical opinion, we have concluded the health practitioner has not provided compelling evidence the impairment sustained is not predominately a minor injury.

17The notice clearly states that the treating health practitioner’s opinion and the MIG have been reviewed and compared, and the practitioner has not provided compelling evidence that the applicant has not sustained a minor injury. This follows the minimum requirements that Arbitrator Sapin noted in Augustin. Therefore, I find that the respondent’s notices have been compliant with the legislative requirements under the Schedule.

Non-Compliance

18The applicant submits that he is not in non-compliance, because he made himself available and requested that the respondent reschedule the IE in his letter dated July 7, 2016, but it did not. I do not find this argument persuasive. The respondent, in good faith, rescheduled the IEs many times without prompting or receiving an explanation from the applicant. The applicant waited 18 months to notify the respondent that its notices were in non-compliance with the Schedule and did not even address how the notices were non-compliant in his letter.

19The applicant did not give the respondent an opportunity to remedy the notice. Instead, the applicant waited as the respondent gave the same allegedly insufficient notice over and over again. The IEs were scheduled and rescheduled over a span of nine months. The applicant had ample time to advise the respondent of the insufficiency of the notice and to request the respondent reschedule another IE. At the very least, the applicant could have done so before 18 months after the first notice.

20The applicant further submits that the respondent has failed its obligation to make reasonable efforts to schedule the IE at a place and time convenient to him. While the Schedule does state that the respondent has to “make reasonable efforts to schedule the examination for a day, time and location that are convenient for the insured person”, that does not mean that the respondent had an obligation to comply with the applicant’s request to provide three different dates and times for each IE.

21The respondent submits that the applicant’s request to provide three different dates creates an excessive burden on both it and its examiners who would be obliged to keep these dates available at the “whim” of the applicant. I agree. There is no legislative obligation for the respondent to comply with the applicant’s request. The respondent has complied with all of its obligations under the Schedule.

22The applicant’s failure to attend any scheduled IEs, his failure to notify the respondent of its allegedly insufficient notice and his failure to request the respondent reschedule the IE in a timely manner demonstrates that the applicant did not make himself reasonably available. There is no dispute over whether or not the applicant has attended an IE. He has not. The applicant has failed to adduce evidence to demonstrate that the respondent’s notices were in non-compliance with the Schedule. Therefore, he must attend the IEs. Since I have found that the respondent’s notices were in compliance and the applicant has not attended any of the IEs, I find that the applicant is in non-compliance with section 44 of the Schedule.

23The delay in this matter is complicated by the fact that the applicant was involved in a subsequent accident in December 2016 for which he is also seeking accident benefits from the respondent.

24Section 55 of the Schedule is clear:

An insured person shall not apply to the Licence Appeal Tribunal under subsection 280(2) of the Insurance Act if any of the following circumstances exist:

2. The insurer has provided the insured person with notice in accordance with this Regulation that it requires an examination under section 44, but the insured person has not complied with that section. [Emphasis added]

25The Schedule uses mandatory language that bars the applicant from making an application, which prevents him from proceeding in this case. Therefore, pursuant to section 55 of the Schedule, I order that his current application be dismissed and the Tribunal file be closed.

Costs

26The Licence Appeal Tribunal Rules of Practice and Procedure (the “Rules”) include a provision in Rule 19.1 for parties to request costs of the proceeding, if they believe that the other party in a proceeding has acted unreasonably, frivolously, vexatiously, or in bad faith. Rule 19.4 further sets out the requirements for that request, which must include the reasons for the request and the particulars of the alleged conduct.

27The respondent has asked for costs in this proceeding. However, it has not alleged the applicant’s conduct in the proceeding to be unreasonable, frivolous, vexatious, or in bad faith. Furthermore, it has not set out the reasons for the request or the particulars of the applicant’s conduct. The respondent has failed to meet the threshold and requirements for costs set out in Rule 19. There is insufficient evidence of conduct that is unreasonable, frivolous, vexatious, or in bad faith before me, so I cannot make an order for costs in this matter. Therefore, no costs will be awarded

CONCLUSION

28For the reasons outlined above, I find that:

1. The applicant is in non-compliance with section 44 of the Schedule. Therefore, the applicant is barred from proceeding with his application. Pursuant to section 55 of the Schedule, his current application is dismissed and the Tribunal file is closed.
2. The respondent is not entitled to costs of the proceeding.