NM v. Aviva Insurance Canada, 2019 CanLII 94126

Citation: NM vs. Aviva Insurance Canada, 2019 ONLAT 18-008710 & 18-008717/AABS

Tribunal File Numbers: 18-008710/AABS 18-008717/AABS

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:

NM

Applicant

and

Aviva Insurance Canada

Respondent

MOTION DECISION

Decision made by: Cezary Paluch Date of Decision: July 19, 2019 Counsel for the Applicant: Olga Poznyakova Counsel for the Respondent: Michael Silver Motion Hearing Heard in Person: June 11, 2019

OVERVIEW

1The applicant was injured in two automobile accidents on February 21, 2016 and March 28, 2017. He sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the ''Schedule'').

2The applicant filed applications before the Licence Appeal Tribunal – Automobile Accident Benefits Service (“Tribunal”) on September 14, 2018: Tribunal File No. 18-008710/AABS, which is related to the February 21, 2016 accident and Tribunal File No. 18-008717/AABS, which is related to the March 28, 2017 accident.

3A case conference was held on January 17, 2019 before Adjudicator C. Leslie. The matters were set for an in-person hearing on June 11-12, 2019 to address the issue of non-earner benefits (NEBs).¹

4On May 23, 2019, the applicant filed a Notice of Motion seeking to exclude the reports of Dr. Kruger and Dr. Syed both dated February 13, 2018. The Order of Adjudicator I. Maedel dated May 31, 2019, adjourned this motion to the hearing on June 11, 2019.

5At the start of the June 11, 2019 hearing date, the applicant then brought a second motion seeking an order that the adjudicator hearing this motion not conduct the hearing on the substantive issues on the basis of a reasonable apprehension of bias.

6This decision deals with the May 23, 2019 motion to exclude the two reports and also with the applicant’s June 11, 2019 request for a recusal due an allegation of apprehension of bias. This was a serious allegation and, accordingly, the hearing on the substantive issues was adjourned pending the release of this motion decision.

7Both parties provided written and oral motion submissions.

RESULT

8I allow the applicant’s first motion to exclude the reports of Dr. Kruger and Dr. Syed.

9I deny the applicant’s second motion to recuse myself from the hearing of the substantive issues based on an apparent apprehension of bias.

ANALYSIS

(1) Motion to Exclude based on failure to give notice under s. 44(5)(a) of the Schedule

Position of the Parties

10The applicant objects to the use of two medical reports of Dr. A. Kruger and Dr. A. Syed both dated February 13, 2018 at the in-person hearing by the respondent because the reports were prepared without notices being provided to the applicant pursuant to s. 44(5) of the Schedule.

11The respondent opposes the request, acknowledging that no notice was provided to the applicant in accordance with s. 44(5), explaining that this was a “mere clerical error” and notwithstanding “any technical issues” with the preparation of these reports, the evidence contained in the report is valid and ought not to be excluded, especially since the applicant only objected to the admissibility of these reports at a late stage on May 22, 2019, materially prejudicing the respondent. It also submits that the applicant ought to be estopped from relying on s. 44(5) because of the time he took to bring his issue forward.

Background

12A brief background of the timeline with respect to the scheduling of the IEs is important to understanding the facts of this motion.

13On September 29, 2017, pursuant to s. 44, the respondent sent to the applicant a Notice of Examination² scheduled for October 27, 2017, with Dr. Kruger for a Medical Physician Assessment to determine the reasonability and necessity of a Treatment Plan (OCF-18) in the amount of $2,680.38 for seven weeks of chiropractic services and a tens machine.

14On October 27, 2018, the applicant attended this IE in person following which a report was prepared by Dr. Kruger dated November 4, 2017.³ The report concluded that the applicant suffered soft tissue injuries consistent with ‘minor injuries’, that his rehabilitation falls within the Minor Injury Guideline of $3,500, and that any amounts above this would be considered not necessary or reasonable.

15On November 2, 2017, the applicant was also seen by Dr. Syed for the purpose of a Psychological Independent Medical Evaluation.⁴

16Notably, neither of these reports addressed non-earner benefits and only dealt with the above-mentioned medical benefits. Subsequently, when the respondent received Dr. Kruger’s report of November 4, 2017, and Dr. Syed’s report, the insurer realized it did not address non-earned benefits - which apparently was in the original referral to the doctors, but not in the s. 44 notice⁵ - and then requested that both assessors conduct another review including the NEBs.

17Without notice to the applicant, and without the applicant being present, on February 13, 2018, Dr. Kruger prepared another Medical Physician Assessment this time to address NEBs, and Dr. Syed prepared another Psychological Assessment also to address NEBs.

18On February 14, 2018, both of the reports of February 13, 2018 were provided to the applicant. Dr. Kruger concluded that the applicant does not suffer a complete inability to carry on a normal life as a direct result of the accident, and Dr. Syed concluded that the applicant is not suffering from any psychological impairment as a result of the accident.

Analysis

19Section 44 (1) of the Schedule authorizes insurer examinations. While there is no specified limit to the number of IEs allowed, the section specifies that they may not be held more often than is reasonably necessary for the purpose of determining whether an insured person is entitled to a benefit.

20Important for this case, I also note that s. 44(1) does not differentiate between in-person IEs, or what is commonly referred to as ‘paper’ assessment through which attendance is not required. Rather, s. 44(1) merely refers to all ‘examinations required by an insurer’. With the qualification in subsection (7) that, if the notice indicates that the attendance of the insured person is not required, and it is subsequently determined that their attendance is required, the insured must give an additional notice of this change. This indicates to me that all IEs (whether in person or via a ‘paper review’) require the same advance notice to be forwarded to the insured.

21To qualify for their ability to request an IE, section 44(5)(a) of the Schedule sets out the parameters of that right as follows:

22If the insurer requires an examination under this section, the insurer shall arrange for the examination at its expense and shall give the insured person a notice setting out,

(a) the medical and any other reasons for the examination;

(b) whether the attendance of the insured person is required at the examination.

23Words in legislation or a regulation are important. The use of the word “shall” in s. 44(5)(a) means that this notice (and the information that was to be included, such as medical and other reasons) are mandatory, and that an insurer has no discretion whatsoever in this regard. Thus, the insurer must provide to the insured the notice prior to conducting an examination under s. 44(1).

24This is not a case, like many Tribunal decisions, in which the analysis concerns whether the actual notice was defective and failed to comply with the formalities of s. 44(5). Rather, here, no notice or medical reasons were ever provided to the applicant, apparently due to an admitted clerical error. The respondent did not argue that the notice should be read together with any subsequent correspondence (or the initial notice regarding the in-person IEs that were conducted) and therefore satisfied the requirements of s. 44(5).

25To their credit, respondent’s counsel was forthright about the miscommunication that took place with its assessors. Explaining that, having not received the initial reports addressing all of the benefits requested, they contacted the assessors and requested that all reports in the referral form be prepared. However, the respondent also admitted that no notice, verbal or written, was ever provided to the applicant when the two assessors were asked to prepare the February 13, 2018 assessments regarding NEBs. Although this may have been an inadvertent oversight due to miscommunication with the assessors, or some technical difficulties, it is clear that the initial reports did not address NEBs. This was not situation of the two doctors preparing addendum reports as a result of new information. Instead, they prepared new reports dealing with a totally separate standalone benefit that was never previously addressed by the assessors. In these circumstances, notice should have been provided to the applicant. As a related matter, the Notice of Examination must also have contained the reason for the examination pursuant to s. 44(5)(a). Here the initial notice referred only to the medical benefits and application of the minor injury guideline and not the NEB.

26Therefore, it is clear that the respondent did not meet the requirements set out in the Schedule under section 44(5)(a).⁶ So what ought to be the remedy is really the central question that remains.

27Unfortunately, the Schedule is silent as to proper remedy for non-compliance by an insurer with the notice requirement in s. 44. It does not specify the regulatory consequences to the insurer if the set procedures are not followed. This is in contrast to other provisions of the Schedule that do specify a consequence, such as if an insured person refuses to attend an IE the insurer can request, pursuant to s. 55, that the applicant be precluded from proceeding before the Tribunal for failure to attend a section 44 IE.

28Important to me is that it is clear that the legislature regarded the insurer examinations procedure set out in the Schedule of utmost importance to the adjusting of accident benefits files by providing such a drastic and far sweeping remedy for non-attendance – that is, barring the entire application from proceeding. Moreover, from a practical perspective, if a notice is sent, and the applicant objects on the basis that the notice is defective, the Tribunal can determine that the assessment will not take place, at least until a compliant notice is sent.

29If the insurer has not complied with the set procedures in s. 44, some form of remedy ought to be implemented. Neither party has provided any tribunal decision or case law to support their position as to the proper remedy.

30In M.B. and Aviva, the Executive Chair, explained how the requirements of s. 44(5)(a) was “obviously part of a legislative trend that has obligated insurers to justify their requests for IEs with progressively greater detail and clarity,” and should therefore “be interpreted accordingly, particularly given the fact that the Schedule constitutes remedial and consumer protection legislation.”

31Although those comments were made in a different context their substance is equally applicable to this case. That is, there are important reasons for holding insurers to their notice obligations under sections 44(5)(a). In particular, and most perhaps importantly, it allows the insured person to know that an examination has been requested, and provides him or her the opportunity to seek advice on how to respond. It also allows the person to make an informed decision about their potential claims, to provide additional information, or dispute the insurer’s request for an IE.

32There are also some very real privacy and consent concerns that could arise if examinations were allowed to proceed unknowingly to the person being assessed. This is another reason why s. 44(5) must be strictly construed. It is concerning that, in this case, and perhaps inadvertently, a medical practitioner would write in a report that “the claimant was informed that the purpose of the assessment was to determine if he was eligible for the non-earner benefit”⁷ when the applicant was not, and in fact, had no knowledge of the assessment. Likewise with the claim that the “claimant provided written and verbal consent to proceed with the assessment”⁸ when, in fact the applicant had no knowledge of the assessment.

33This is consistent with the legislative trend to provide greater clarity, and to ensure accountability and oversight. These principles are fundamental to the fairness and efficiency of the accident benefits dispute resolution system as a whole.

34In addition, given the serious consequences to an insured person of being denied benefits based on the conclusion reached in an assessment and also the inherent invasive nature of IEs, the notice requirements and the insurer’s notice should be closely examined to ensure they comply with the Schedule.

35With these principles in mind, I must still interpret the actual words of the Schedule. My plain reading of s. 44(5) is that it is mandatory: notice must be provided to the insured person with all of the required information prior to conducting any IE. The respondent has no discretion to do otherwise. The respondent did not comply with s. 44(5)(a) of the Schedule because it did not provide any notice. This obviously falls short of the legislative requirement.

36In my view, failure to provide the required notice renders the scheduling of the IEs improper. The only practical remedy is to exclude the product of those assessments, the reports themselves, from being relied on by the respondent at the hearing. I do not see any other remedy that would be appropriate in these circumstances. Looked at another way, if I permitted the respondent to rely on these reports, this potentially could lead to insurers unilaterally, whether inadvertently or intentionally, dispensing with the requirements of s. 44(5)(a) when conducting paper reviews, which could lead to further abuse. The fact that the applicant waited until a few weeks before the hearing to bring this to the respondent’s attention, although not preferable, should not allow the respondent to override important procedural notice obligations under the Schedule.

(2) Reasonable Apprehension of Bias

37The applicant seeks an Order for me to recuse myself on the basis of a reasonable apprehension of bias. As I understand his position, since I heard submissions and read the two reports addressing NEBs and the applicant’s condition, this knowledge will preclude me from determining the parties’ dispute with the requisite open mind.

38The test for reasonable apprehension is well-established. It is as follows:

The test for whether a reasonable apprehension of bias exists is whether an informed person, viewing the matter realistically and practically – and having thought the matter through – would conclude that it is more likely than not that the decision-maker, whether consciously or unconsciously, would not decide fairly: Committee for Justice & Liberty v. Canada (National Energy Board), 1976 CanLII 2 (SCC), [1978] 1 S.C.R. 369, at p. 394.⁹

39The applicant makes no reference to this legal test and makes no submissions as to how it applies in this particular context. Instead, there are statements made that the two reports of February 13, 2018 are completely new reports, and it is a fairness issue that the hearing adjudicator not be biased by reading these reports.

40There is one other essential element that informs this analysis: the strong presumption of judicial impartiality and integrity. The onus rests on the applicant to demonstrate a reasonable apprehension of bias, and the threshold is a high one.¹⁰

41The applicant has wholly failed to establish any reasonable apprehension of bias in the Tribunal’s handling of this application. As in all cases, including this one, the hearing adjudicator is tasked with evaluating the entire evidence presented and assigning the appropriate weight to any reports. Also, the Tribunal routinely hears successful preliminary motions to exclude evidence, following which it adjudicates the matter and the adjudicator does not recuse him or herself. In my view, there’s nothing prejudicial about me having seen the reports that prevents me from deciding the matter fairly. Moreover, the presumption of impartiality and integrity applies to administrative decision makers, like the Tribunal.

42Accordingly, I am not satisfied that the applicant has met the onus to establish a reasonable apprehension of bias. I decline to recuse myself but do note that I have not heard any evidence as to the substantive issues in dispute and only dealt with this motion and am not seized of this matter.

ORDER

43For the reasons above, I order that:

i. The applicant’s motion for the exclusion of Dr. Kruger and Dr. Syed’s reports both dated February 13, 2018, is allowed. The reports are excluded.

ii. The applicant’s motion to recuse myself from the hearing on the substantive issues based on a reasonable apprehension of bias is denied.

44I am not seized of the hearing on the substantive issues.

45The parties are to contact the Tribunal within 30 days of the release of this decision and schedule a case conference to re schedule the date for the hearing on the substantive issues.

46All remaining terms of the previous Orders remain in full force and effect.

Footnotes

1. 1The remaining issues of the medical benefits, cost of examination, award and application of the Minor Injury Guideline was structured to be heard in writing.
2. 2Tab 3 of Applicant’s Notice of Motion.
3. 3Tab 4 of Applicant’s Notice of Motion.
4. 4I was not provided with the Notice or Dr. Syed initial report in the motion materials for this in person assessment.
5. 5The respondent provided adjuster log notes to demonstrate that the in person IE’s scheduled were always intended to address both rehabilitation and non-earner benefits.
6. 6In M.B. v. Aviva Insurance Canada 2017 CanLII 87160 (ON LAT), at para. 26 , the Executive Chair stated that a notice must include the following elements to satisfy this requirement: (a) specific details about the insured’s condition or information that the insurer does not have but requires about an insured’s condition; (b) the benefit(s) or determination(s) at issue; and (c) the section(s) of the Schedule being relied on. (“M.B. and Aviva”).
7. 7Tab 2, Applicant’s Notice of Motion, Report dated February 13, 2018, page 2.
8. 8Tab 2, Applicant’s Notice of Motion, Report dated February 13, 2018, page 3.
9. 9As cited by Associate Chair in S.M. vs. Certas Direct Insurance Company, 2019 CanLII 43904 (ON LAT) at para. 27.
10. 1017-000502 v RSA Insurance, 2019 CanLII 22212 (ON LAT) para. 15.```