A. H. v. TD Home and Auto Insurance Company, 2018 CanLII 81956

Date: 2018-05-18

Tribunal File Number: 17-006678/AABS

Case Name: 17-006678 v TD Home and Auto 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. H.

Applicant

and

TD Home and Auto Insurance Company

Respondent

DECISION

ADJUDICATOR:

Chris Sewrattan

APPEARANCES:

Representative for the applicant:

Carlos Ortiz

Counsel for TD Insurance:

Garett Harper

HEARD In-Writing:

April 20, 2018

OVERVIEW

1This is a preliminary issue decision to determine whether the Licence Appeal Tribunal has the jurisdiction to order that an insured person be allowed to record an insurer's medical examination under s. 44 of the Schedule.

2The applicant was injured in a motor vehicle accident on August 11, 2015. He sought payment for an attendant care benefit under the Schedule¹. TD Home and Auto Insurance ("TD") denied payment for the attendant care benefit. The applicant appeals for payment to the Licence Appeal Tribunal – Automobile Accident Benefits Service.

PRELIMINARY ISSUES

3The following are the preliminary issues:

1. Does the Licence Appeal Tribunal have jurisdiction to issue an Order to allow the applicant to use a recording device and record an insurer's medical examination under s. 44 of the Schedule?
2. If so, can the applicant record the insurer examination of Dr. S. Patel and Dr. G. Jaroszynski and under what circumstances or ground rules?

RESULT

4The Tribunal does not have the jurisdiction to order the use of a recording device during an insurer's examination. Unlike the Superior Court, there is no law that provides the Tribunal to make such an order.

DISCUSSION

5The Tribunal does not have the jurisdiction to order that an insured person be allowed to record an insurer's medical examination under s. 44 of the Schedule.

6The Tribunal's jurisdiction comes from provincial legislation. Two statutes define the scope of the Tribunal's jurisdiction: the Insurance Act² and the Schedule, which is a regulation under the Insurance Act. Under the modern approach to statutory interpretation, I must examine s. 44 by reading it harmoniously with the context and purpose of the Insurance Act in general and the Schedule in particular.³

7Looking at the text of the Insurance Act, it is clear that the Tribunal's jurisdiction is based in resolving disputes in respect of entitlement to statutory accident benefits.⁴ Looking more closely at s. 44 of the Schedule, the provision creates a regime under which an insurer can compel an examination of an insured person by a medical practitioner who is retained by the insurer. Section 44 places just one condition on the way in which the examination must be conducted. The examination must be reasonable.⁵

8There are serious consequences if an insured person fails to comply with a s. 44 examination. The insured person may be prohibited from applying to the Tribunal for dispute resolution.⁶

9The applicant submits that the Tribunal has inherent jurisdiction to order the use of a recording device during an insurer's examination. The argument is that inherent jurisdiction flows from s. 44's power to TD to medically evaluate the applicant in relation to benefits sought under the policy. The applicant is unable to point to anything within s. 44 that confers this jurisdiction.

10As noted earlier, the Tribunal's power to do any action comes from the laws created by provincial legislature. If legislation does not provide for a power to compel audio recording during an insurer's examination then, plainly, no such power exists. There is nothing in the Schedule or the Insurance Act that allows me to compel the use of a recording device during an insurer's examination.

11The parties thoroughly discussed the application of Bellamy v. Johnson⁷. In that case, the Court of Appeal for Ontario held that the Superior Court has jurisdiction to set terms and conditions relating to a medical examination, including a condition relating to the recording of the examination. The Superior Court's jurisdiction is found in s. 105 of the Courts of Justice Act⁸ and Rules 33.01 and 33.02 of the Rules of Civil Procedure⁹. Those laws do not apply to the Tribunal. There is no parallel law that confers a similar power either. Bellamy v. Johnson and the cases that follow it do not assist in determining whether the Tribunal has the jurisdiction to compel the use of a recording device during an insurer's examination.

12The applicant referenced three additional cases in support of his submission: Willits v. Johnston,¹⁰ Jilla v. Ribeiro,¹¹ and Otote v. Shenouda.¹² All three of these cases relate to the jurisdiction of the Superior Court. Indeed, Willits v. Johnston expressly relies on s. 105 of the Courts of Justice Act.¹³ These three cases do not assist.

13In the absence of any power to compel the use of a recording device during an insurer's examination, I conclude that the Tribunal does not have the jurisdiction to make such an order.

14Finally, I note that both parties invoked Vasina v. ING Insurance Company of Canada¹⁴ in support of their submissions. As TD submits, Vasina does not stand for the proposition that a non-court body has the jurisdiction to compel the use of a recording device during an insurer's examination. Vasina dealt with a different issue: whether it is reasonable for the insured person to record the medical examination, given that s. 44 requires compliance with only "reasonable" examinations.¹⁵ If it was reasonable for the insured person to record the examination in the specific circumstances of that case, and the insurer's medical practitioner would not let her do so, then the insured person's non-attendance was in compliance with s. 44. This hearing does not concern whether the prospective s. 44 examination is reasonable. The narrow issue before me is whether the Tribunal has the jurisdiction to order the use of a recording device.

CONCLUSION

15The Tribunal does not have the jurisdiction to order the use of a recording device during an insurer's examination.

16The parties are directed to attend a resumption of the case conference on September 28, 2018 at 10:00 a.m. The parties may contact the Case Management Officer if they wish to schedule an earlier resumption date.

Released: May 18, 2018

__________________

Chris Sewrattan

Adjudicator

Footnotes

1. 1Statutory Accident Benefits Schedule – Effective September 1, 2010
2. 2Insurance Act, R.S.O. 1990, c. I.8
3. 3R. Sullivan, Sullivan on the Construction of Statutes, (6th ed. 2014), at §. 2.6
4. 4See especially, Insurance Act, R.S.O. 1990, c. I.8, s. 280.
5. 5Schedule, s. 44(9).
6. 6Schedule, s. 55.
7. 7Bellamy v. Johnson, 1992 CanLII 7491 (ON CA), [1992] O.J. No. 864 (C.A.). See also Adams v Cook, 2010 ONCA 293
8. 8Courts of Justice Act R.S.O. 1990, Chap. C.43
9. 9Rules of Civil Procedure, R.R.O. 1990, Reg. 194
10. 10[2003] O.J. No. 1442 (Sup. Ct.)
11. 11[2009] O.J. No. 1281 (Sup. Ct.)
12. 12[2005] O.J. No. 6298 (Sup. Ct.)
13. 13Willits v Johnston, [2003] O.J. No. 1442 (Sup. Ct.) at para. 6.
14. 14Vasina v. ING Insurance Company of Canada, FSCO A05-001207
15. 15Schedule, s. 44(9).