W.C. v. Aviva Insurance Company of Canada, 2019 CanLII 126111

W.C. vs. Aviva Insurance Canada, 2019 ONLAT 19-000454/AABS

Citation: W.C. vs. Aviva Insurance Canada, 2019 ONLAT 19-000454/AABS

Tribunal File No.: 19-000454/AABS

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

Between:

W.C. Applicant

and

Aviva Insurance Company of Canada Respondent

D E C I S I O N

(Preliminary Issue Raised By The Respondent)

APPEARANCES:

For the applicant: [W.C.], Applicant Shahen Alexanian, Counsel Reza Bazyar, Licensed Paralegal

For the respondent: Peter Mandyam, Litigation Specialist Mohamed Hashim, Counsel

Heard: In-writing and in-person on September 10, 2019

OVERVIEW

1On May 22, 2017, the applicant, [W.C.], was involved in a motor vehicle accident. He claimed certain benefits from the respondent, Aviva Insurance Company of Canada (“Aviva”), under the Statutory Accident Benefits Schedule – Effective September 2010, O. Reg. 34/10 (“Schedule”). Aviva denied [W.C.]’s claim for benefits, and [W.C.] applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service (“Tribunal”).

2It was previously ordered that a preliminary issue be determined before the application proceeds further.¹ The parties served and filed written submissions on this issue, which included an affidavit sworn by [W.C.] on August 19, 2019. I also heard oral submissions on September 10, 2018.

PRELIMINARY ISSUE

3The preliminary issue to be decided is as follows:

(i) Is the applicant restricted from applying to the Tribunal with respect to the denial of his claim for income replacement benefits because he failed to attend examinations scheduled by the respondent?

RESULT

4I find that the applicant is not restricted from applying to the Tribunal with respect to the denial of his claim for income replacement benefits.

ANALYSIS

5The Schedule sets out various obligations of insured persons and insurers, which include, but are not limited to, the following:

(i) The obligation of the insured person to provide information requested by the insurer;²

(ii) The obligation of the insurer to provide medical reasons if denying a claim for benefits;³

(iii) The obligation of the insured person to attend examinations scheduled by the insurer in accordance with s. 44;⁴ and

(iv) The obligation of the insurer to schedule examinations in a manner that complies with s. 44.⁵

6For an insured person, one consequence of failing to attend an insurer’s examination is a restriction on proceeding before the Tribunal. In other words, in the event he or she fails to attend an appropriately scheduled examination, the insured person is precluded from disputing the denial of the benefit at issue.⁶ That said, the Tribunal retains discretion in permitting such claims to proceed on a case-by-case basis.⁷

7In this case, Aviva is asking me to preclude [W.C.] from disputing the denial of his income replacement benefits at the Tribunal. Aviva submits that [W.C.] failed to attend ten (10) scheduled examinations under s. 44. Aviva is also asking me to dismiss [W.C.]’s income replacement claim on the merits, on the basis that it is irreparably prejudiced if that claim were permitted to continue at this stage. This alleged prejudice includes Aviva’s inability to obtain timely information through a s. 44 examination in the relevant time period after the accident.

8[W.C.] requests that his claim for income replacement benefits be permitted to continue.

9In evidence before me was an affidavit that [W.C.] had sworn on August 19, 2019. Aviva chose not to cross-examine [W.C.] on this affidavit.

10The ten (10) missed insurer examinations were contained in four (4) letters sent by Aviva to [W.C.], copies of which were included in Aviva’s submissions:

(i) A letter dated October 16, 2018, containing notices for examinations for return dates of October 30, October 31, and November 14, 2018;

(ii) A letter dated October 29, 2018, containing notices for examinations for return dates of November 9, November 14, and November 16, 2018;

(iii) A letter dated November 27, 2018, containing notices for examinations for return dates of December 6, December 13, 2018, and January 11, 2019; and

(iv) A letter dated January 22, 2019, containing a notice of examination for return dates of February 4, 2019.

11The letter of October 29, 2018 rescheduled all examinations that were set out in the October 16, 2018 letter before they even took place. Therefore, 3 of the 10 appointments were rescheduled at Aviva’s instance. Ultimately, there were 7 appointments contained in the last 3 letters from the list above that [W.C.] did not attend.

12[W.C.] swore in his affidavit that he worked as an intensive care unit nurse prior to the accident, and that he had returned to work on modified duties during the period in which each of the above-noted letters was sent.⁸ He swore that during the relevant time period, he worked 8-hour days of clinical work with a ‘buddy’ to assist him, 5 days a week.⁹

13[W.C.] also swore the following at paragraph 8 of his affidavit:

Aviva apparently scheduled IEs over a year ago but scheduled them on dates and times on which I was not available (as indicated above, I was working on modified duties at the time). I specifically recall receiving a call from the assessor’s office on the day of a scheduled assessment and being told that a car was at my house to take me to an assessment. I told the assessor that I was not available on that date for the assessment but that I would be pleased to provide available dates to them so that I could take time off work to attend them. The assessor refused to take this information and told me that they do not handle scheduling. To my knowledge, Aviva has never contacted me or Mr. Bayzar [sic] (I spoke to him about this and this is what he tells me) to schedule the IEs on times and dates on which I was available. I just don’t think it is right to set up an appointment without first checking if I am available. I have always been willing to attend any assessments required by Aviva that Mr. Bayzar [sic] tells me I should attend.

14The insurer is required, under s. 44(9)2.i. of the Schedule, to schedule the examination for a day, time, and location that are convenient for the insured person.¹⁰ The undisputed evidence before me is that Aviva did not comply with this provision.

15I find that this was not a case of 10 missed insurer examination appointments. Rather, three letters containing a total of 7 unilaterally scheduled notices of examination were sent to the attention of a nurse who was working in a modified manner 5 days a week 8 hours per day. No attempt was made to schedule the examinations on a day, time, and location that were convenient to [W.C.]. In addition, [W.C.]’s attempts to request a rescheduling of the examinations, as sworn in his affidavit, were not responded to by Aviva.

16In these circumstances [W.C.] has not willfully disregarded his obligations under the Schedule. It was Aviva, and not [W.C.], who failed to comply with s. 44, which makes this case distinct from the two cases that Aviva had referred to in its submissions.

17[W.C.] is therefore permitted to proceed with his income replacement benefits claim before the Tribunal.

18I am not persuaded that there is irreparable prejudice to Aviva if [W.C.]’s claim were permitted to continue. Aviva finds itself in a position without more timely insurer examinations precisely because it made no attempts to comply with s. 44(9)2.i. Furthermore, the parties have access to medical documentation and employment file documentation from the relevant time period and may bring same forward to the Tribunal for the substantive issues hearing.

CONCLUSION

19Aviva’s preliminary issue motion is dismissed.

20Within thirty (30) days of the Tribunal’s release of this decision, [W.C.] shall schedule a case conference with the Tribunal to schedule next steps in this application.

Footnotes

1. 1Order of Adjudicator Tavlin Kaur, dated May 16, 2019.
2. 2S.33.
3. 3S.38.
4. 4S.55.
5. 5S.44.
6. 6S.55(1).
7. 7S.55(2).
8. 8Affidavit of [W.C.] sworn August 19, 2019 [W.C.], at para. 7, in which he states he had returned to work on July 17, 2018 on modified duties until April 24, 2019.
9. 9[W.C.] Affidavit, at para. 7.
10. 10Delaney and State Farm, FSCO A16-004668, Applicant’s Casebook, Tab 1, p.10.