Tribunal File Number: 18-002250/AABS
Case Name: 18-002250 v. Royal Sun Alliance Insurance
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:
C. S.
Applicant
and
Royal Sun Alliance Insurance (RSA)
Respondent
DECISION AND ORDER
ADJUDICATOR:
Christopher Ferguson
APPEARANCES:
Counsel for the Applicant:
David Carranza
Counsel for the Respondent:
Ken J.D. Yip
Written Hearing:
September 4, 2018
OVERVIEW
1The applicant, C.S. was injured in an automobile accident on August 4, 2016 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 20101 (the ''Schedule'').
2C.S. applied for benefits from the respondent Royal Sun Alliance (RSA), and then applied to the Licence Appeal Tribunal (the “Tribunal”) when the disputed benefits were denied.
3C.S. claimed income replacement benefits, medical benefits and costs of examination, including a psychological assessment. RSA also took the position that C.S.’s injuries are minor as defined by s.3 (1) of the Schedule and thus subject to a $3,500 limit on payable medical benefits under the Minor Injury Guideline.
4C.S.’s appeal has been set down for a hearing of her claims for benefits on January 14, 2019. The case conference in this matter, begun June 28, 2018 was ordered and is scheduled to resume on November 26, 2018.
5The dispute at hand involves a request by RSA to stay C.S.’s appeal until she attends an insurer’s examination (IE) scheduled by RSA. The parties’ submissions indicate agreement that the entire proceeding is to be covered by the determination of this issue.
6The parties agree that C.S. declined three requests by RSA to attend psychological IEs for various reasons.
7On August 7, 2018, C.S. wrote to RSA and agreed to attend IEs – GP and psychological -- scheduled for September 6 and 7, 2018.
PRELIMINARY ISSUE
8The issues before me are:
(1) Is C.S. required to attend the IE requested by RSA?
(2) Should C.S.’s appeal on the substantive issues be stayed until or unless she complies with RSA’s request to attend a psychological IE?
FINDINGS
9I find that C.S. is precluded from proceeding with her appeal until she attends the IEs requested by RSA and scheduled for September 6 and 7, 2018.
10I find that C.S.’s promise to attend the IEs on September 6 and 7 2018 renders the preliminary issues moot, and accordingly it follows that:
i. There is no need for me to assess the arguments submitted respecting earlier requests and refusals to attend.
ii. If C.S. attended the IEs as promised, her appeal may proceed.
iii. If C.S. failed to attend the IEs as promised, her appeal should be stayed until such time as she attends.
11RSA agreed to the applicant’s request for a female chaperone during the IE and to pay for the applicant’s transport to and from the IE. C.S. may not impose any additional preconditions on her attendance at the IE.
REASONS
12There is no dispute about the right of the insurer RSA to conduct IEs created by s.44(1) of the Schedule and the basic requirement, prescribed by s.44(9) for an insured person – in this case C.S. – to attend IEs requested by the insurer.
13As noted, there is no dispute that C.S. refused three requests by RSA to attend IEs on three occasions: June 8, 2017, July 19, 2017 and May 30, 2018.
14The parties argue about whether RSA’s IE requests were related to assisting the insurer to determine entitlement to a specific benefit as prescribed by s.44(1) of the Schedule, met the standards set out for proper notice in s.44(5), and whether they were “reasonable” as required by s.44(9). C.S. contends that RSA’s requests did not meet these criteria, and therefore she was not required to attend the IEs. RSA takes the opposite position, asserting that its requests accorded with the Schedule’s requirements and that C.S. was delinquent in refusing to attend the IEs.
15Because C.S. has now agreed to attend the IEs, I find it unnecessary to resolve the arguments submitted by the parties or to determine whether or not her earlier refusals complied with the Schedule and whether or not she is currently disentitled to proceed with her appeal. I do not need to make that determination in order to decide how this appeal is to proceed or what C.S.’s current obligations are.
16I find that C.S.’s written agreement to attend the requested IEs effectively signifies her recognition of her duty under s.44 (9) of the Schedule to submit to an IE and the current absence of any reasonable explanation for not attending. Likewise, I interpret RSA’s scheduling of the IEs as its commitment to move this file toward resolution.
17C.S.’s letter of August 7, 2018 includes some conditions of attendance. RSA did not object to her request for a female chaperone during the IE or confirmation that it would pay for her transport to and from the IE. However, RSA was adamant that her demand to be provided with detailed documents and copies of any surveillance reports and recordings cannot be imposed as a precondition of attendance.
18I agree with RSA that C.S. cannot impose certain preconditions on her attendance, such as document lists or surveillance videos. Such preconditions are not provided for in s.44 (9) which requires her attendance or in s.44 (5) which sets out the required contents of IE notices. C.S.’s submissions simply did not address this issue: she provided me with no basis on which to support her demands.
19C.S.’s attendance the IEs scheduled by RSA for September 6 and 7, 2018 was required. She has no right to impose any condition on her attendance beyond conditions prescribed or permitted by the Schedule or other laws. If she failed to attend, her appeal should be stayed until she does.
Consequences of Non-Compliance with s.44
20Section 37(7) of the Schedule prescribes the consequences to the insured person if she fails to attend an IE: the insurer may determine that the insured person is no longer entitled to the specified benefit and it may refuse to pay the specified benefit relating to the period during which the insured person failed to comply with s.44(9).
21Section 37(8)(b)(ii) requires the insurer to pay all amounts withheld during a period of non-compliance if the insured person provides a reasonable explanation for not complying with s.44 (9).
22The onus is on the insured person to establish a reasonable explanation.2
23Neither party raised the issue of withholding payments during non-compliance as permitted by the Schedule in their submissions. In my view, such an issue can be raised and determined as part of the proceeding on the substantive issues. Accordingly, I will not address it here.
CONCLUSIONS
24The case conference resumption scheduled for November 26, 2018 shall proceed and the parties shall confirm on or before that date whether or not C.S. attended the IEs as required.
25The date ordered for a hearing of the substantive issues in dispute stands, until and unless varied by the adjudicator chairing the case conference.
26C.S.’s appeal may not proceed unless she has attended the IEs scheduled for September 6 and 7, 2018.
Date of Issue: November 13, 2018
___________________________
Christopher A. Ferguson
Adjudicator
Footnotes
- O.Reg. 34/10
- Horvath v. Allstate Insurance Co. of Canada, 2003 OFSCID No. 92, affirmed in State Farm Mutual Automobile Insurance Company v S.R. [2013] ONSC 2086.