[The Applicant] v. Aviva General Insurance, 2020 CanLII 14483

Citation: [The Applicant] vs. Aviva General Insurance, 2020 ONLAT 19-002413/AABS

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

Between:

[The Applicant]

Applicant

and

Aviva General Insurance

Respondent

DECISION

ADJUDICATOR: Monica Chakravarti

APPEARANCES:

For the Applicant: Luke Hamer, Counsel

For the Respondent: Michael White Counsel

HEARD: In Writing

November 4, 2019

OVERVIEW:

1On October 25, 2012, the applicant was involved in a motor vehicle accident (the “Accident”). As a result of the Accident, the applicant applied for attendant care benefits (“ACB”) under the Statutory Accident Benefits Schedule – Effective September 1, 2010, O. Reg. 34/10 (the “Schedule”) to Aviva General Insurance Company (“Aviva”). Aviva denied these benefits, leading to the within application.

2At the case conference, Aviva raised the preliminary issue that the applicant is statute-barred from proceeding with his application for ACBs due to his non-attendance at insurer’s examinations (“IEs”) under s. 44.

3The applicant admits he did not attend the IEs. He argues, however, that he was not required to because the respondent’s notices were deficient and that the IEs were not “reasonably necessary”.

PRELIMINARY ISSUE:

4The respondent raised the following preliminary issue, which is the subject of this preliminary decision:

Is the applicant barred from proceeding with his claim for ACBs on the ground that the respondent provided the applicant with notice that it requires an examination under section 44 of the Schedule, but the applicant has not complied with that section?

RESULT:

5As the respondent did not provide the applicant with valid notice that it requires an examination under section 44 of the Schedule, the applicant cannot be held in non-compliance with that section and, therefore, his claim for ACBs is not barred under section 55(1)2 of the Schedule.

ANALYSIS:

6The following undisputed facts are relevant to the findings below and provide a brief background to the position of the parties:

At Aviva’s request, the applicant underwent catastrophic determination assessments.
As part of those assessments, the applicant was assessed by Dr. Haight, an otolaryngologist, on April 1, 2016.
The report of Dr. Haight, otolaryngologist was provided/released on December 22, 2016.
On December 21, 2016, the applicant provided a Form 1, Assessment of Attendant Care Needs, along with an accompanying report (ACB Report) to Aviva.
In response to the Form 1 and ACB Report Aviva required the applicant to undergo two IEs to determine whether he was eligible for ACBs. The first IE was to be conducted by Dr. Haight (the “Otolaryngologist IE”). The second IE was to be conducted by an occupational therapist (the “OT Assessment”). In support of its request, Aviva cited s. 44 of the Schedule.
The applicant took no issue with attending the OT Assessment but does take issue with the Otolaryngologist IE.
The applicant never attended the Otolaryngologist IE.

7Section 55 (1) 2 of the Schedule provides that the applicant cannot apply to the Tribunal if the respondent provided him with notice in accordance with the Schedule that it requires an examination under section 44 of the Schedule and the applicant has not complied.

8The parties agreed that the applicant did not attend the Otolaryngologist IE, which the respondent scheduled pursuant to section 44.

9The respondent takes the position that because of the applicant’s non-attendance and/or refusal to attend the Otolaryngologist IE, that pursuant to section 55(1)2 the applicant is barred from proceeding with his claim for ACBs.

10The applicant submits that the respondent did not provide notice in accordance with section 44(5)(a) of the Schedule, and specifically did not provide “the medical and any other reasons for the examination” and therefore the respondent cannot rely on section 55(1)2.

11Section 44(5) (a) states the following:

(5) If 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;

12The respondent replies that it provided the medical and other reasons for the examination and, to that end, relies upon its letters to the applicant, and the affidavits and cross-examinations of [J. M.] and [C. J.].

13The respondent bears the onus of proving on a balance of probabilities that it complied with section 44 of the Schedule when arranging the IEs.

14As per the reasons below, I find that, based on the totality of the evidence, the respondent failed to provided notice in accordance with section 44(5) (a) of the Schedule.

Medical and Any Other Reasons

15In keeping with the jurisprudence, when “reasons” are required from the insurer those reasons must be meaningful in order to permit the insured to decide whether to challenge the insurer’s determination.¹

16The respondent submits that the reasons provided to the applicant for the Otolaryngologist IE were first submitted in the following letters to the applicant and provided the following reasons:

a) Letter of February 8, 2017 to the applicant:

“We have insufficient information to evaluate your needs and qualification and your attendance is required at an insurer’s examination for the purpose of evaluating same. Further details regarding the assessment details will follow.”

b) Letter of February 21, 2017 to the applicant:

c) Letter of March 13, 2017 to the applicant:

“We are unable to determine whether updated recommendations for attendant care are reasonable and necessary.”

17The February 8, 2017 letter is devoid of any details and does not even tell the applicant what type of assessments the respondent is seeking and with whom. [see paragraph 16 a) above]

18On February 21, 2017, the respondent provided another letter. In a box marked “Medical Reason” it stated the following:

19In other words, in its letter of February 21, 2017 the respondent provided the same verbatim wording under the heading “Medical Reason” as it provided in the earlier letter of February 8, 2017( the respondent in this February 21, 2017 letter despite stating “Further details regarding the assessment details will follow, does in fact lists the two assessments it requires).

20The letter of March 13, 2017 under the heading “Medical Reasons” states the same reason verbatim as is noted in the February 21, 2017 letter and the February 7, 2017 letter. [see paragraph 16 above].

21The applicant submits and I agree that the above “reasons” provided for the Otolaryngologist IE are boilerplate reasons. The jurisprudence has determined the following:

Mere “boilerplate” statements do not provide a principled rationale to which an insured person can respond. In essence, such statements constitute no reason at all.”²

22I find based on the above, as of March 13, 2017, Aviva still had not provided reasons as to why they required the Otolaryngologist IE and its connection to the ACB Reports. In view Aviva’s response is a reflexive refusal and request for an I.E.

23Aviva submits that, on March 31, 2017, it provided reasons for the Otolaryngologist IE and specifically points to the following in its letter to the Applicant of that date:

i. Since catastrophic determination is being disputed and the applicant is claiming AC benefits in excess of the non-catastrophic coverage the Insurer Examinations are reasonable and necessary

ii. In order to assist Aviva with determining entitlement it is necessary for Aviva to have the impairment(s) addressed and diagnosed.

iii. Since an occupational therapist is unable to diagnose impairment it is reasonable and necessary…to attend the scheduled assessments.

24The first reason given by the respondent in the March 31, 2017 letter is that the monetary amount of the ACB claimed by the applicant is in excess of the monetary limits available to the applicant. I find that this is not a medical reason nor a reason that is meaningful. There is no nexus conveyed to the applicant between the monetary amounts of the ACB and an Otolaryngologist IE and how or why the monetary amounts of the ACB are linked to an Otolaryngologist IE.

25The second reason conveyed to the applicant - the requirement for the impairment(s) to be addressed and diagnosed - as well falls short of being meaningful to the applicant in that it fails to tell the applicant what is needed from the Otolaryngologist IE that has not already been obtained. The lack of detail makes this rationale a boilerplate reason for an assessment and therefore constitutes no reason at all.

26The third reason provided by the respondent - Since an occupational therapist is unable to diagnose impairment it is reasonable and necessary…to attend the scheduled assessments - simply completes a full circle in that it again provides nothing meaningful by way a rationale for the Otolaryngologist IE and is in my view a restatement of the second reason provided.

27I am also not persuaded by the evidence of the adjuster. When looking at the cross-examination of the adjuster as a whole it is evident that the adjuster could not provide a clear rationale for the Otolaryngologist IE and simply relied on the letters provided to the applicant without expanding further. Secondly, the adjuster could not confirm in a clear manner what the medical reason was that was conveyed to the applicant and simply used phrases that some of the reasons provided in the letters listed above “could be” ³ a medical reason or, in the case of the March 31st, 2017 correspondence, that there is “one and possibly could be conceived as two medical reasons”⁴ for the Otolaryngologist IE.

28The adjuster nor Aviva is to be held to a standard of perfection. Simply because there is a disagreement with respect to the rationale for an IE that does not mean that the rationale was not provided. As noted in Hedley, as long as the medical and other reasons “offers a principled rationale based on an insured’s file,” an insurer will have satisfied its obligation under section 38(8) and therefore in my view, by analogy its notice obligations under section 44(5)(a).

29I find based on the evidence that Aviva failed to provide the medical and any other reason for the Otolaryngologist IE in a way that was meaningful, clear and directed to an unsophisticated applicant. Therefore, Aviva did not provide notice in accordance with section 44(5)(a) of the Schedule and the respondent cannot rely on section 55(1) 2 to bar the applicant’s application.

CONCLUSION:

30As the respondent did not provide the applicant with notice that it requires an examination under section 44 of the Schedule, the applicant cannot be held in non-compliance with that section and therefore is not barred under section 55(1)2 of the Schedule.

Released: February 20, 2020

__________________

Monica Chakravarti Adjudicator

Footnotes

Hedley v Aviva Insurance Company of Canada, 2019 ONSC 5318 (Divisional Court)
Ibid.
Page 17 of the Transcript of the deponent, James McMurray
Ibid at Page 50