S.R. v. Aviva Insurance Canada, 2019 CanLII 126104

RECONSIDERATION DECISION

Before: Lori Marzinotto, Vice-Chair

Date: December 17, 2019

File: 17-008249/AABS

Case Name: S.R. v. Aviva Insurance Canada

Written Submissions By:

For the Applicant: Adam Somogyi, Counsel

For the Respondent: Michal Baura, Counsel

OVERVIEW

1This request for reconsideration arises from a decision following a hearing before the Licence Appeal Tribunal (the “Tribunal”) on May 28, 2018. The Tribunal found that pursuant to s. 55 of the Statutory Accident Benefits Schedule – Effective September 1, 2010 (the “Schedule”), the applicant was barred from applying to the Tribunal for accident benefits for failing to attend a s. 44 insurer’s examination (the “Decision”).

2Pursuant to s. 17(2) of the Adjudicative Tribunals Accountability, Governance and Appointments Act, 2009, S.O. 2009, c. 33, Sched. 5, I have been delegated responsibility to decide this matter in accordance with the applicable rules of the Tribunal.

RESULT

3The applicant’s request for reconsideration is granted.

BACKGROUND

4The applicant was involved in an accident on September 15, 2015 and sought, amongst other things, income replacement benefits (“IRBs”) from the respondent.

5The respondent argued that the applicant failed to attend three insurer examinations (“IE”) that were scheduled in accordance with s. 44 of the Schedule to review the applicant’s entitlement to IRBs. To this same end, the respondent says it provided notice of these examinations to the applicant on November 17 and 24, 2015 (the “November Notices”).

6Through the November Notices, the respondent scheduled the following IEs: an orthopaedic assessment, a functional abilities evaluation, and a job site evaluation. The Tribunal found, that although the November Notices included a valid medical reason for each examination, the respondent failed to provide the applicant with sufficient notice for the functional abilities evaluation and the jobsite evaluation because they did not fully comply with s. 44(5). Specifically, they lacked details regarding the professions of the individuals conducting the examinations.

7However, the Tribunal did find that the applicant was provided with sufficient notice of the orthopaedic assessment. Accordingly, the Tribunal found that the applicant was barred from disputing entitlement to IRBs for the period of December 3, 2015 to October 11, 2016.

8Given that only one of the November Notices was found compliant with the Schedule, namely the orthopaedic assessment, this reconsideration decision is with respect to that notice (the “Orthopaedic Notice”).

9The applicant argues that the Orthopaedic Notice failed to provide sufficient information about the proposed IE assessors, namely their designation, and did not include valid medical reasons.

ANALYSIS

6Rule 18.1 of the Common Rules of Practice & Procedure (the “Rules”) requires a request for reconsideration to include the reasons for the request, specifying the criteria under Rule 18.2.

7Under Rule 18.2, one or more of the following four grounds needs to be established:

(a) The Tribunal acted outside its jurisdiction or violated the rules of natural justice or procedural fairness;

(b) The Tribunal made a significant error of law or fact such that the Tribunal would likely have reached a different decision had the error not been made;

(c) The Tribunal heard false or misleading evidence from a party or witness, which was discovered only after the hearing and likely affected the result; or

(d) There is new evidence that could not have reasonably been obtained earlier and would have affected the result.

8The applicant alleges that the Tribunal erred and acted outside of its jurisdiction in failing to strictly apply the requirements in s. 44(5)(c). The applicant alleges the Tribunal did so by providing some latitude to the respondent and finding that the applicant could have “reasonably ascertained” the designation of the regulated health professional who would conduct the examination.

9I agree that the Tribunal erred. In short, the Orthopaedic Notice did not comply with s. 44(5)(c) of the Schedule. Finding that it did was a significant error. Thus, I grant this reconsideration request and, therefore, will not deal with the applicant’s second basis for the reconsideration request, that is the allegation of a lack of medical reasons in the Orthopaedic Notice.

10In accordance with s. 55(1)2 of the Schedule, an insured person shall not apply to the Tribunal if the insurer has provided the insured person notice “in accordance with this Regulation” that it requires an examination under s. 44 but has not complied.

11As stated in M.B. v. Aviva,¹ in order to rely on s. 55(1)2, the respondent must have provided the applicant notice in accordance with the Schedule.

12In turn, s. 44(5)(c) states that the insurer shall give the insured person notice setting out the following:

(c) The name of the person or persons who will conduct the examination, any regulated health profession to which they belong and their titles and designations indicating their specialization, if any, in their professions.

13Section 44(5)(c) of the Schedule is clear and mandatory in setting out what is required in the notice. In this case, while the Orthopaedic Notice does set out the type of examination and the name of the doctor, “Dr. Gilbert Yu Ming Yee”, “Dr.” being Dr. Yee’s title, the notice is missing the regulated health profession to which Dr. Yee belongs.

14Although this may be a technical oversight, not all individuals with a “Dr.” prefix before their names are medical doctors and/or qualified to conduct an orthopaedic assessment.

15While I agree with the Tribunal that one could reasonably ascertain by his title and designation the type of assessment being scheduled, I do not agree that one could reasonably ascertain the regulated health profession to which Dr. Yee belongs. However, even if the applicant could have reasonably ascertained the information, this is not the applicant’s obligation. Instead, that is information that, according to the Schedule, an insurer must provide the applicant.

16Without referencing another source, the applicant could not have known Dr. Yee’s regulated health profession. It is not up to the applicant to find out the information that the insurer was to provide. I agree with the applicant that it was entirely in the insurer’s hands to ensure that the notice was in accordance with the Schedule.² In this case, it was not, and the Tribunal’s focus on the applicant’s ability to reasonably ascertain the missing information was a significant error.

17The Tribunal should not assume that an applicant would be able to ascertain information that was missing. It is worth repeating that one of the main objectives of insurance law, including the Schedule, is consumer protection.³ The information that the insurer was required to provide the applicant was to be provided in “straightforward and clear language, directed toward an unsophisticated person.”⁴

18The Orthopaedic Notice did not comply with s. 44(5)(c) of the Schedule. It was clearly missing the regulated health profession as well as Dr. Yee’s designation. Therefore, the respondent was not entitled to rely on s. 55(1)2 to prevent the applicant from applying to the Tribunal.

19On that basis alone, I am granting the applicant’s reconsideration request.

Remedy

20In accordance with s. 37 of the Schedule, the respondent was not entitled to discontinue paying the IRB on the basis that the applicant failed to attend the s. 44 IE given that the Orthopaedic Notice was non-compliant with the Schedule.

21The applicant indicated in his reconsideration submissions that the respondent never took issue with the applicant’s entitlement to IRBs and based its entire reason for not paying the IRBs on the s. 55(1)2 exclusion clause. The respondent did not refute this submission.

22Therefore, I order that the IRB is payable to the applicant for the period that it was withheld, specifically from December 3, 2015 to October 11, 2016.

23The applicant has requested a ruling on an award pursuant to s. 10 of Ontario Regulation 664 regarding the withheld IRB for the period of December 3, 2015 to October 11, 2016.

24In accordance with s.10 of Ontario Regulation 664, in addition to awarding benefits, the Tribunal may order an award if it finds that the insurer unreasonably withheld a benefit.

25Merely because an insurer failed to comply with the Schedule does not mean that the applicant is entitled to an award. An insurer may fail to comply with the Schedule without acting unreasonably. In this case, even though the insurer did not fully comply with the Schedule, I do not find that the errors in the Orthopaedic Notice reach the threshold of unreasonably withholding or delaying a benefit contemplated in s.10 of Ontario Regulation 664.

26Accordingly, I find that the applicant is not entitled to an award on the IRBs payable for the period of December 3, 2015 to October 11, 2016.

Conclusion

27For the reasons noted above, I grant the applicant’s request for reconsideration.

Lori Marzinotto Vice-Chair

Safety, Licensing Appeals and Standards Tribunals Ontario

Footnotes

1. 1M.B. v. Aviva Canada, 2017 CanLII 871600 (ON LAT) at para.21.
2. 2Catania v. Scottish & York Insurance Co. Ltd., 2001 CanLII 24147 (ON CA) at para. 21.
3. 3Smith v. Co-operators General Insurance Co., 2002 SCC 30, 2002 S.C.C. 30 at para 11.
4. 4Smith v. Co-operators General Insurance Co., 2002 SCC 30, 2002 S.C.C. 30 at para 14.