Tribunal File Number: 17-002582/AABS
Case Name: 17-002582/AABS v The Personal Insurance Company
In the matter of an Application for Dispute Resolution pursuant to subsection 280(2) of the Insurance Act, RSO 1990, c I.8., in relation to statutory accident benefits.
Between:
A. L.
Applicant
and
The Personal Insurance Company
Respondent
DECISION
ADJUDICATOR: Robert Watt
APPEARANCES:
Counsel for the Applicant: Lisa Bishop
Counsel for the Respondent: Thelson Desamour
Written Hearing: September 19, 2017
REASONS FOR DECISION AND ORDER
OVERVIEW
1The applicant was injured in a motor vehicle accident on July 9, 2015. He has applied to the Tribunal to resolve a dispute with the respondent regarding his entitlement to statutory accident benefits. At the case conference in this matter held on June 21, 2017, on consent of the parties, it was ordered that a preliminary issue written hearing was to be held on September 19, 2017. A further case conference was ordered to be held within 30 days of the release of the preliminary issue decision.
PRELIMINARY ISSUE
2The preliminary issue was identified and agreed to as follows:
(i) Is the applicant precluded from LAT adjudication on this application due to non-compliance with section 55 of the Schedule where it is alleged he failed to attend an insurer examination pursuant to section 44 on multiple occasions?
RESULT
3I find that the applicant is not precluded from LAT adjudication on this application.
THE LAW, EVIDENCE AND ANALYSIS
LAW
4Section 44(1) of the Schedule1 permits an insurer to request an insured to be examined by a person chosen by the insurer. Section 44(9)2.i of the Schedule requires the insurer to make reasonable efforts to schedule the examination for a day, time, and location that are convenient for the insured person.
5Section 55(1)2. of the Schedule prohibits an insured from applying to the Licence Appeal Tribunal if the insured has failed to attend an examination under s. 44.
EVIDENCE
6The applicant has provided letters, sent to the respondent, indicating that he was and is able and willing to attend all examinations required by the respondent.
(i) A letter dated July 2, 2015, from the applicant to the respondent indicated that the applicant will attend any examination, after receiving written confirmation from the applicant’s legal counsel. This letter asks for all correspondence for any examination to be directed to the applicant’s counsel, as well as to the applicant.
(ii) A letter dated January 15, 2016, from the applicant to the respondent indicated that the applicant is no longer seeking income replacement benefits (IRB) and asks the respondent to cancel all examinations relating to this part of the application.
(iii) A letter dated June 21, 2016, from the applicant to the respondent indicated that the applicant attended the assessment centre designated for the examination on April 30, 2016, but found it to be closed. The letter indicated that the applicant was willing and able to attend a further rescheduled examination.
7The respondent in its factum material, referred to an affidavit of Cecilia Ledzinsky indicating that the applicant failed and/or refused to attend at any of the Respondents’ requested section 44 assessments. That affidavit was not provided to the Tribunal for the purposes of this preliminary issue hearing.
ANALYSIS
8There is insufficient evidence before me to find that the respondent was not acting reasonably to schedule appointments at a convenient time for the applicant. In fact the respondent did schedule the April 30, 2016 appointment on a Saturday as requested by the applicant. There is no evidence as to why the April 30, 2016, request for examination was not rescheduled.
9There is insufficient evidence before me: relating to the number of times the respondent requested the applicant to attend a Section 44 examination; whether the applicant showed up or not; if not, was there any reason why the applicant failed to show up; whether the applicant’s counsel was also notified, so that counsel could confirm the appointment, as requested in the July 2, 2015, letter; and whether the section 44 examination requests, if any, that were not attended by the applicant related to the issue of the IRB?
10There would also be no point in the applicant attending any Section 44 requests for an examination, if those examinations related to the issue of IRB, since the applicant had notified the respondent by letter dated January 15, 2016, that the applicant was no longer claiming an IRB.
11Section 12 of the case conference order of July 4, 2017, setting out the preliminary hearing issue, limits the evidence for the preliminary issue hearing to only that evidence specifically submitted for this hearing. While there may be evidence to fill the gaps I have identified above, it was not put before me. The evidence presented above persuades me that the applicant was willing to attend relevant IEs unrelated to the abandoned issue of IRB entitlement.
12The applicant raises an additional issue of the adequacy of the notice of refusal by the insured. Notwithstanding that this issue was not before me on this preliminary motion hearing, in light of my finding on refusal to attend, it would seem to be moot.
13Both the applicant and the respondent raise an additional issue of costs relating to the LAT application, LAT response, case conference hearing, preliminary issue hearing, and missed appointment fees. Essentially both parties are seeking costs of the proceeding as a whole. This issue is not before me, and will have to be addressed at the second case conference, which will be scheduled as per the July 4, 2017 order.
ORDER
14I order that the applicant can proceed with the application.
Released: January 8, 2018
___________________________
Robert Watt, Adjudicator
Footnotes
- O. Reg 34/10 Statutory Accident Benefits Schedule – Effective September 1, 2010. (the “Schedule”)