U.P. v. Co-operators General Insurance Company, 2020 CanLII 30410

U.P. v. Co-operators General Insurance Company

Citation: UP vs. Co-operators General Insurance Company, 2020 ONLAT 19-001881/AABS

Tribunal File Number: 19-001881/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:

[U.P.]

Applicant

and

Co-operators General Insurance Company

Respondent

PRELIMINARY ISSUE HEARING DECISION

ADJUDICATOR:

Thérèse Reilly

APPEARANCES:

For the Applicant:

Clifford Singh, Counsel

For the Respondent:

Amanda Lennox, Counsel

Interpreter:

Andrew Cherubim (Tamil)

Court Reporter:

Adam Kennedy

HEARD: in Writing and by Teleconference:

November 14, 2019

OVERVIEW

1The applicant was involved in an automobile accident on February 12, 2017 and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the ''Schedule''). At the case conference held on August 14, 2019, a preliminary issue hearing was scheduled to address the issue of non-attendance by the applicant at an insurer examination (IE) scheduled for May 23, 2017.

2The respondent claims that, pursuant to section 55, the applicant is barred from proceeding with her application for failing to attend the IE. The respondent submits it provided notice of the IE to the applicant.

3The applicant maintains she never received notice of the IE and, likewise, was not advised of any IE by her legal counsel. She maintains she was unaware of the examination and, had she been aware, she would have attended.

4The applicant was examined on her affidavit evidence dated October 18, 2019 at the teleconference portion of the hearing heard on November 14, 2019. All other evidence was submitted by way of written submissions filed in December 2019 and January 2020 with attached documentary evidence.

PRELIMINARY ISSUE HEARING

5The preliminary issue is:

a. Is the applicant is barred from proceeding with her application due to non-attendance at a section 44 IE examination under section 55 of the Schedule?

b. Is the respondent entitled to the costs of this hearing?

RESULT

6The applicant is barred from proceeding with her application until she attends an IE to assess her claim. The respondent’s request for costs is dismissed.

BACKGROUND

7The appeal involves a claim for a medical benefit for a treatment plan for chiropractic services for $2,547 dated February 13, 2016. That plan was submitted on March 3, 2017 and denied on March 16, 2017 by the respondent on the basis that the applicant’s injuries fell within the Minor Injury Guideline (MIG).

8The respondent sent the following letters to the applicant:

a. An initial denial letter was sent to the applicant on March 7, 2017 denying the OCF-18 on the basis that the medical records submitted with the OCF-18, including records from the emergency department of the hospital and her family doctor, indicated that her injuries were minor and therefore subject to the $3,500 MIG limit.¹ The applicant acknowledges receiving this letter.

b. On March 16, 2017,² the respondent sent a further letter to the applicant denying the OCF-18 on the basis that the applicant's injuries fell within the MIG. The applicant denies receiving this letter.

c. On April 27, 2017,³ the respondent wrote to the applicant to notify her of a section 44 Insurer's Examination scheduled on May 17, 2017 with Dr. Oshidari, physiatrist, in order to assess the applicant's entitlement to several benefits, including the disputed medical benefit.

9The applicant does not question the adequacy of the notice, but submits she never received the notice. In both her affidavit and cross-examination, she denied receiving all letters from the respondent, including those dated March 16, April 27 or May 23, 2017, aside from the above-mentioned March 7, 2017 letter. As such, she submits that she was unaware of the IE and, as such, was unable to advise the respondent that she could not attend. Had she known, she asserts, she would have attended.⁴

10All notice letters from the respondent were addressed to the applicant and sent to her home address. They were also copied to her former legal counsel, at his law firm.

11The notice letter of April 27, 2017 provided the IE’s particulars, including advising the applicant that her attendance was required at the IE, that a Tamil translator would attend, the medical and other reasons for the examination, the consequences of failing to attend, and that the applicant was to advise the respondent of a reasonable explanation for not attending within 10 business days after the failure to attend.

12The applicant did not attend the IE on May 17, 2017.

13On May 23, 2017,⁵ the respondent sent another letter to the applicant, confirming that she did not attend the IE and requesting an explanation from her by June 6, 2017 for her non-attendance. The applicant submits she did not receive this letter.

14In both her affidavit⁶ and on cross-examination, the applicant stated that her former counsel advised her that they would deal directly with the insurer and arrange all examinations on her behalf. She testified that her former counsel told her not to contact the insurer and that the insurer would not be contacting her directly.

15The applicant confirmed in her testimony that her address has never changed. She stated during cross-examination that her husband will often retrieve the mail, but that he never mentioned the respondent’s letters.

16In March 2019, the applicant changed legal counsel as she was unsatisfied with her former legal counsel. She reiterated that, when she retained her previous counsel, they advised her that they would arrange all appointments on her behalf and the respondent would not contact her directly. She stated she was also pregnant during the time that she retained her former legal counsel in February 2017, and she told her former legal counsel she may have difficulty attending an appointment. Her former legal counsel at that time was to advise the respondent of this. From the evidence provided by the applicant and written submissions, this information was not conveyed to the respondent.

17She testified that it was not until March 2019⁷ that she learned of the IE from her current counsel, who advised her that she had missed the IE and that the respondent was holding her in non-compliance and looking to dismiss her application.

18She acknowledged in cross-examination that her former counsel filed the application for accident benefits with the Tribunal on February 13, 2017, and that the application was signed by her. She also acknowledged that, on May 24, 2017, an expense claim form was submitted by her to the Tribunal and sent to the respondent and it was signed by her. In cross-examination, she denied receiving a letter from the respondent relating to this expense claim or the attached cheque from the respondent.

19The respondent submitted into evidence the cover letter from the former legal counsel dated February 23, 2017,⁸ which filed the application for the accident benefits claim with the Tribunal and stated to the respondent that their law firm does not handle the scheduling of any appointments for their clients. The letter stated it was not his firm’s practice to notify their clients of any assessments and proper notification had to be sent directly to the client. The letter also stated all copies of benefit payments and Explanation of Benefits were to be sent to the former counsel’s attention. The applicant was questioned on this letter during cross-examination. She maintained her position that her former counsel had told her they would handle all appointments on her behalf.

20The respondent denies that the applicant has provided a reasonable explanation for the non-attendance and since two years have now passed, it would be prejudiced if the IE was re-scheduled. Section 55, it argues, uses mandatory language and bars an applicant from proceeding with the appeal for non-attendance at an IE. The respondent presented several cases and Tribunal decisions to support its position.⁹

21Unlike the facts in the case law and Tribunal decisions that the respondent presented to support its position, the IE in question was only scheduled once and was not re-scheduled.

22The applicant refers to a Tribunal decision¹⁰ in which an applicant failed to attend IEs claiming improper notice had been received. Despite this, the applicant was allowed to proceed with the application on condition that she attend the remaining IEs. The decision was upheld on a reconsideration by the Tribunal.¹¹

ANALYSIS AND DECISION

The Duty to Participate in the IE

23Under section 44 of the Schedule, an insured must attend an IE examination and submit to all reasonable examinations requested by the examiners. Section 55(1)2 of the Schedule states that an insured person shall not apply to the Tribunal if the insurer has notified the applicant that it requires an examination under s. 44, but the insured person has not complied with that section.

24The Tribunal has discretion under section 55(2) to permit an insured to proceed with an appeal despite his or her failure to comply with section 44 and, to that end, section 55(3) provides that the Tribunal may impose terms and conditions in exercising that discretion¹²

25Section 37(7) sets out the consequences for not attending an IE. Section 37(8) of the Schedule also states that, if an insured person subsequently complies with section 44, an insurer shall reconsider the insured person's entitlement to the specified benefit and resume payment of the specified benefit and all amounts withheld during the period of non-compliance if the insured person provides a reasonable explanation for his or her non-compliance. The onus is on the insured person to establish a reasonable explanation for not attending an IE.

26Based on the evidence presented, I find that the applicant has provided a reasonable explanation for her non-attendance. I accept her evidence that she did not receive notice of the IE and that, had she received it, she would have attended. I have no evidence to contradict her statement that she did not receive the notice letter of April 27, 2017. She also provided affidavit and evidence on cross-examination that her former counsel advised her they would take care of all the appointments on her behalf. She acted on and trusted the advice and direction of her former counsel. The respondent in cross examination asked the applicant about the statement made by her former counsel in the cover letter when they filed the application that they do not notify their clients of any assessments and any notice had to be sent directly to the client. The applicant maintained her position that she was told by her former counsel they would handle all the appointments for her and had she been told or known about the IE she would have attended. I accept the evidence of the applicant and find that until March 2019, she did not have notice of the IE and, therefore, I accept she did not attend and could not in the absence of that knowledge. She acknowledged receiving a letter of March 7, 2017 but not the notice letter. She also acknowledged having signed the application which was dated February 13, 2017.

27In the circumstances, the Tribunal exercises its discretion under the Schedule to allow the IE to be re-scheduled, subject to the terms and conditions set out below. As the examination was only scheduled once, I agree that it would be unfair to the applicant in the circumstances to bar her from proceeding with her application when there has been no attempt by the respondent to reschedule the examination and as outlined above she did not receive the required notice.

28As to any prejudice to the respondent, any delay and prejudice to the insurer must be balanced against the hardship to the applicant. To bar the applicant, I find, would be a disproportionate remedy in light of the evidence before the Tribunal.

29I also find some instances in which an arbitrator declined to use discretion in permitting a non-compliant applicant to proceed often involved some level of wilful non-compliance by the applicant. In this case, the applicant’s non-compliance appears to be the result of a lack of notice and miscommunication with her former counsel.

The Tribunal’s discretion with respect to non-compliance with s. 44

30The applicant can proceed with her appeal subject to the following:

i. She must attend an IE required to assess her entitlement to the medical benefit in dispute. She must comply with s. 44(9)2 iii of the Schedule.

ii. The insurer shall provide the applicant with a new IE date within 35 business days of the release date of this decision. Any notice must also be provided to her legal counsel.

COSTS

31The respondent requested costs of this preliminary issue hearing but made no submissions in respect of costs. The claim for costs is dismissed.

CONCLUSION

32For the reasons outlined, I find that:

i. The appeal is not barred and can proceed. The applicant may not proceed with her appeal until she meets the conditions imposed above pursuant to s. 55(3) of the Schedule. The request to recover costs is dismissed.

Released: April 7, 2020

Thérèse Reilly

Adjudicator

Footnotes

1. 1Respondent written submissions, tab 6.
2. 2Respondent’s Document Brief, tab 8.
3. 3Respondent written submissions, tab 8.
4. 4Transcript of the examination of the applicant, November 14, 2019, tab 11, and written submissions of the respondent, page 9.
5. 5Respondent’s Document Brief, tab 13.
6. 6Written reply submissions of the applicant, paragraph 10, Affidavit of the applicant dated October 18, 2019 paragraphs 16 and 17.
7. 7Written reply submissions of the applicant, paragraph 5.
8. 8Respondent’s Document Brief, letter from Alexei Antonov, the applicant’s former legal counsel, dated February 23, 2017, tab 2.
9. 9S.C. v. Aviva Canada Inc. (2017) CarswellOnt 8392, respondent Book of Authorities, Tab 2, stating depriving the insurer of this right to examine, when reasonably necessary, constitutes a potential procedural unfairness. See also: L.F. v. Aviva Insurance Canada (2019) CarswellOnt 14481, Book of Authorities tab 4; 16-002772 v Aviva Insurance Company 2017 CarswellOnt at 8392, Book of Authorities, tab 2 and written submissions of the respondent, paragraph 25.
10. 10File 17-007683 MY and Aviva Insurance Company, April 16, 2018, written submissions of the applicant, tab 16. Reconsideration decision of Vice Chair Trojek, December 11, 2018, tab 17.
11. 11MY and Aviva Insurance Company, Reconsideration decision of Vice Chair Trojek, December 11, 2018, written submissions of the applicant, tab 17.
12. 12File 17-007683 MY and Aviva Insurance Company, April 16, 2018, written submissions of the applicant, tab 16.