R.B. v. Aviva Insurance Company of Canada, 2020 CanLII 94785

RECONSIDERATION DECISION

Citation: R.B. vs. Aviva Insurance Company of Canada, 2020 ONLAT 18-011209/AABS

Before: Melody Maleki-Yazdi, Adjudicator

Date: 11/19/2020

Tribunal File Number: 18-011209/AABS

Case Name: R.B. vs. Aviva Insurance Company of Canada

Written Submissions by:

For the Applicant: Lisa Bishop, Counsel

For the Respondent: Brendan Sheehan, Counsel

OVERVIEW

1The respondent requests reconsideration of a decision dated February 12, 2020, which found that the applicant was not precluded from applying to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) for failing to attend scheduled insurer’s examinations (“IEs”). The Tribunal found that the respondent’s IE notices for the attendant care assessment and the psychological assessment did not comply with the Statutory Accident Benefits Schedule – Effective September 1, 2010¹ (the “Schedule”). The Tribunal also found that the respondent did not provide an IE notice in relation to the physiotherapy treatment plan.

2The respondent submits that a reconsideration is warranted because the Tribunal made two significant errors in the decision. First, the Tribunal erred in the application of the law in finding that the IE notices did not comply with the Schedule and an inappropriately stringent standard was applied to the “reasons” provided by the respondent in the IE notices. Secondly, the Tribunal did not sufficiently engage with the facts of this case because the Tribunal’s analysis on the sufficiency of the reasons did not consider the lack of medical information provided by the applicant to the respondent.

RESULT

3The respondent’s request for reconsideration is dismissed.

DECISION AND REASONS

4The grounds for a request for reconsideration are contained in Rule 18.2 of the Tribunal’s Common Rules of Practice and Procedure. A request for reconsideration will not be granted unless one of the following criteria are met:

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

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

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

d) There is evidence that was not before the Tribunal when rendering its decision, could not have been obtained previously by the party now seeking to introduce it, and would have likely affected the result.²

5The respondent submits that rule 18.2(b) applies.

Rule 18.2(b) – The Tribunal made an error of law or fact such that the Tribunal would have likely reached a different result had the error not been made

Error 1: Erred in the application of the law in finding that the IE notices did not comply with the Schedule and an inappropriately stringent standard was applied to the “reasons” provided by the respondent in the IE notices

6The respondent submits that the Tribunal erred in the application of the law in finding that the IE notices did not comply with the Schedule and an inappropriately stringent standard was applied that goes above the standard for “reasons” as stipulated by the Court of Appeal for Ontario in Aviva Insurance Company of Canada v. McKeown³ (“McKeown”).

7In the Tribunal’s decision, in order to determine whether the applicant was barred from proceeding with his application pursuant to s. 55(2) of the Schedule, first the sufficiency of the IE notices was addressed. The Tribunal relied on the decision of M.B. v. Aviva Insurance Canada⁴, where the specific wording that satisfies the requirement of “medical and any other reasons” pursuant to s. 44(5)(a) was considered. The respondent’s submissions acknowledge that the Executive Chair, in arriving at her decision in M.B. v. Aviva Insurance Canada, cited Augustin v. Unifund Assurance Company⁵ for the proposition that an insurer must provide a sufficient notice for an IE, including providing medical reasons, before an insurer can rely on s. 55(2) of the Schedule.

8In its submissions, the respondent argues that the Tribunal inappropriately applied a stringent standard of the requirements to the “reasons” provided by the respondent in the IE notices and that this standard is incongruent with the binding precedent of the McKeown decision. The respondent submits that the Tribunal erred in relying on M.B. v. Aviva Insurance Canada in finding that the respondent’s reasons were insufficient because the decision involved specific factual circumstances in which the insured person advised that she was unable to attend IEs as a result of a scheduling conflict due to educational courses and the insured had provided the insurer with some semblance of objective evidence to suggest what her medical condition may have been.

9To support its position, the respondent draws an analogy between the decision of McKeown, which addressed an insurer’s request for examinations under oath (“EUOs”), with an insurer’s request for an IE assessment under s. 44 of the Schedule. The respondent submits that the Court’s determination in McKeown is that it is not in keeping with the cooperative approach to information sharing found throughout the Schedule for an insurer to be obliged to provide a “justification” for its request for an EUO. The respondent submits that the same exact rationale applies to the conduct of IEs and the provisions of reasons for denials.

10The Tribunal does not accept the analogy that the respondent attempts to draw from McKeown between EUOs and s. 44 IE assessments. The Tribunal agrees with the applicant’s submissions that an EUO is the right of an insurer pursuant to s. 33 of the Schedule and that the same cannot be said regarding the requirements to request an IE. Section 33(2) indicates that, “if requested by the insurer, an applicant shall submit to an examination under oath …” Furthermore, there is no requirement that the notice include “medical or any other reasons”. Instead, s. 33(4) indicates that “the insurer shall make reasonable efforts to schedule the examination under oath for a time and location that are convenient for the applicant and shall give the applicant reasonable advance notice of the following: … 3. The reason or reasons for the examination.”

11The Tribunal finds that the appropriate standard for the “reasons” in the IE notices was applied. It remains the Tribunal’s finding that the applicant is not precluded from applying to the Tribunal for failing to attend scheduled IEs because the respondent’s IE notices for the attendant care assessment and the psychological assessment did not comply with the Schedule. The Tribunal also found that the respondent did not provide an IE notice in relation to the physiotherapy treatment plan.

Error 2: The Tribunal did not sufficiently engage with the facts of this case because the Tribunal’s analysis on the sufficiency of the reasons did not consider the lack of medical information provided by the applicant to the respondent

12The respondent submits that the Tribunal did not sufficiently engage with the facts of this case because the Tribunal’s analysis on the sufficiency of the reasons did not consider the virtual absence of medical information provided by the applicant to the respondent.

13Specifically, the respondent submits that the applicant has failed to provide any objective medical evidence from Ontario Health Insurance Plan-funded physicians to substantiate what his accident-related impairments may have been. The respondent submits that, in the absence of actual medical evidence, it was not possible to provide more detailed medical and other reasons in its IE notice letters.

14The respondent submits that it required IEs in order to obtain a clear picture of the applicant’s condition as it related to the accident and that its attempts to obtain IEs were frustrated by the applicant’s continual refusal to attend IEs unless they were scheduled at obscure hours. The respondent argues that where the applicant has provided no objective evidence substantiating his alleged injuries, tools such as IEs take on an additional significance that assists the respondent in arriving at a determination of whether a given benefit is payable or whether a given benefit level is appropriate based on the injuries that the applicant has sustained.

15The Tribunal agrees with the applicant’s submissions that no matter what information the respondent has at the time it requests an IE from the applicant, it is required to comply with s. 44(5)(a) of the Schedule that it “shall give the insured person a notice setting out … the medical and any other reasons for the examination.” As noted above, an insurer must provide a sufficient notice for an IE, including providing medical reasons, before an insurer can rely on s. 55(2) of the Schedule.

16For the reasons outlined above, the Tribunal did not make errors of law or fact that would have changed the outcome of the decision.

CONCLUSION

17The respondent’s request for reconsideration is dismissed.

Footnotes

1. 1O. Reg. 34/10.
2. 2Licence Appeal Tribunal, Animal Care Review Board and Fire Safety Commission Common Rules of Practice and Procedure, Version 1, October 2, 2017, as amended.
3. 3Aviva Insurance Company of Canada v. McKeown, 2017 ONCA 563.
4. 4M.B. v. Aviva Insurance Canada, 2017 CanLII 87160 (ON LAT) (Reconsideration).
5. 5Augustin v. Unifund Assurance Company, FSCO A12-000452.