Tribunals Ontario Licence Appeal Tribunal Tribunaux décisionnels Ontario Tribunal d'appel en matière de permis

Citation: Mehta v. Aviva General Insurance, 2022 ONLAT 21-004910/AABS Licence Appeal Tribunal File Number: 21-004910/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:

Perminder Mehta

Applicant

and

Aviva General Insurance

Respondent

DECISION ON PRELIMINARY ISSUES

ADJUDICATOR:

Samia Makhamra

APPEARANCES:

For the Applicant:

Golan Pergui, Counsel

For the Respondent:

Alexander Dos Reis, Counsel

Heard by Way of Written Submissions

BACKGROUND

1On or around April 21, 2021, the applicant brought an application before the Licence Appeal Tribunal (“Tribunal”) to claim accident benefits, pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (“Schedule”). The claims arise from a motor vehicle accident that occurred on September 20, 2020.

2The disputed benefits identified in the application to the Tribunal are:

1. A non-earner benefit (“NEB”) from March 15, 2021, to date and ongoing;

2. A medical benefit for the amount of $69.26 for chiropractic treatment, acupuncture, massage therapy, and exercise equipment proposed in a treatment plan (OCF-18) dated January 8, 2021 prepared by 101 Physio;

3. A medical benefit for the amount of $2,460.00 for a psychological assessment in a treatment plan (OCF-18) dated November 4, 2020, prepared by 101 Assessments;

4. A medical benefit for the amount of $3,130.77 for chiropractic treatment, massage therapy, acupuncture, a TENS unit, and transportation proposed in a treatment plan (OCF-18) dated March 10, 2021 prepared by 101 Physio;

5. A medical benefit for the amount of $2,460.00 for “medical services” in a treatment plan (OCF-18) denied on January 14, 2021, prepared by 101 Assessments.

6. Interest; and,

7. Whether the applicant’s injuries are predominantly minor as defined in section 3 of the Schedule and therefore subject to treatment within the $3,500.00 limit and in the Minor Injury Guideline(“MIG”).

3A case conference took place on October 19, 2021. It was adjourned on consent because the applicant could not attend due to a family emergency that required her to leave Canada.

4On June 1, 2022, and before a second case conference took place, the respondent filed a motion raising preliminary issues. It is these preliminary issues that are the subject of this decision.

5A second case conference took place on August 12, 2022. The matter was set down for a written hearing. At this second case conference, the applicant withdrew issues #2 and #5 above.

6The date of the written hearing has been set for June 2, 2023.

PRELIMINARY ISSUES IN DISPUTE

7The respondent seeks the following relief:

• Relief A: The respondent seeks an order that, pursuant to s. 55(1) of the SABS, issues #2, 3, and 4 are all permanently barred from proceeding before this Tribunal and that, pursuant to s. 280 of the Insurance Act, this Tribunal does not have jurisdiction to determine whether the MIG applies.

• Relief B: In the alternative, the respondent seeks an order that, pursuant to ss. 55(1), (2), and (3) of the SABS and s. 280 of the Insurance Act, issues #2, 3 and 4 and the MIG issue should be stayed until the applicant attends the missed IEs. If this relief is granted, the respondent also seeks an order that, pursuant to s. 55(3), the applicant is to attend all of the missed IEs in-person within 60 days of the order.

• With respect to issue #5, an order pursuant to s. 280 of the Insurance Act, that the Tribunal does not have jurisdiction to adjudicate it, as the applicant has never applied for this benefit.

8Given that the applicant withdrew issues #2 and #5 at the case conference of August 12, 2022, this decision will address the preliminary issues raised with respect to issues #3, #4, and the applicability of the MIG only.

RESULT

9The respondent’s request to dismiss the application for treatment plans #3 and #4 is dismissed.

10The application is stayed for 60 days pending the applicant’s attendance at the IEs. If the applicant attends, both issues will proceed to the hearing in this matter.

11Given the result, the request for an order that the Tribunal does not have jurisdiction to determine the applicability of the MIG as a standalone issue is dismissed.

FACTS

12In a Notice of Examination (“NOE”) dated March 29, 2021, the respondent requested that the applicant attend a section 44 IEs to determine whether her injuries fall within the MIG, and whether treatment plan #3 was reasonable and necessary. The IEs were a two-hour occupational therapy in-home assessment, scheduled for July 9, 2021, and a one-hour physical medicine and rehabilitation assessment, scheduled for July 14, 2021.

13On April 29, 2021, the applicant’s representative asked the respondent to reschedule the IEs because the applicant was out of the country. Her father had passed away and she left to attend the funeral. She was expected to be away for two months.

14In two separate NOEs dated June 10, 2021, the respondent scheduled a one-hour IE for physical medicine and rehabilitation assessment for July 14, 2021, a one-hour neurology assessment for August 30, 2021, and a two-hour psychological assessment for July 20, 2021.

15On June 11, 2021, the applicant’s representative advised the respondent that the applicant was still away and could not attend the IEs. In a subsequent message dated July 22, 2021, the representative advised the respondent that the applicant might return in September 2021.

16In a letter dated August 23, 2021, the respondent notified the applicant that her benefits were suspended because she failed to attend the IEs scheduled for July and August.

17In a letter dated August 24, 2021, responding to the above, the applicant’s representative wrote to the respondent noting that she had previously advised of the applicant’s inability to attend the IEs and inquired about the suspension. She also said she would advise the respondent once the applicant had returned.

18On October 19, 2021, the Tribunal held the first case conference in this matter, which, as mentioned earlier in para [3], was adjourned on consent because the applicant had left the country because of a family emergency.

19The applicant’s representative updated the respondent advising that she was still away on two occasions, on October 7, 2021, and on January 17, 2022.

20On February 23, 2022, after a follow-up by the respondent, the representative advised that the applicant had returned to Canada.

21To date, the applicant has attended the IES for the NEBs. Specifically, in a NOE dated March 10, 2022, the respondent notified the applicant of the IEs. These were a physiatry assessment on March 31, 2022, a neurology assessment on April 14, 2022, a psychology assessment on April 20, 2022, and an in-home occupational assessment on May 3, 2022. While two were rescheduled, the applicant has attended all the IEs.

ANALYSIS

22I reviewed the parties’ submissions and evidence and find that the applicant cannot proceed with treatment plans #3 and #4 until she attends the IEs. Accordingly, the scheduled hearing is stayed until she attends the IEs.

23The relevant sections of the Schedule are sections 44 and 55. Section 44(1) defines an insurer’s ability to require an insured to attend an IE to determine if an insured is or continues to be entitled to a benefit, but not more often than is reasonably necessary.

24Section 44(5) states that a Notice of Examination shall set out the medical and any other reasons for the examination, whether the insured is required to attend the examination, the name of the person conducting the examination and their profession including their titles and designation, and the date, time, and location of the examination.

25Section 55(1) disallows an insured from pursuing a benefit if s/he did not attend an IE when a proper notice has been filed in accordance with the Schedule. Section 55(2) and (3) provide the Tribunal the discretion to allow a non-compliant insured to still proceed with an application under certain terms and conditions.

26Rule 3.1 of the Licence Appeal Tribunal, Animal Care Review Board, and Fire Safety Commission Common Rules of Practice and Procedure, Version I (October 2, 2017) as amended (“Rules”) requires the Tribunal to conduct its proceedings in a manner that balances fairness and efficiency, all the while allowing disputes to be addressed on the merits.

27The applicant does not dispute the adequacy of the notices of examinations or whether the IEs are reasonably necessary.

28I reviewed the notices and find that they are reasonably necessary and meet the requirements set out in section 44(5) of the Schedule. Therefore, the applicant is required to attend the IEs.

The Submissions of the Parties

29The respondent submits that the appropriate relief is to permanently bar the applicant from disputing treatment plans #3 and #4, for failing to attend the IEs. It argues that allowing her to proceed pending attendance is prejudicial because the evidence would not be contemporaneous to the date the treatment plans were prepared.

30If the Tribunal finds that the applicant is barred from disputing treatment plans #3 and #4, the respondent then asks for an order that the Tribunal has no jurisdiction to proceed with the applicability of the MIG as a standalone issue.

31The applicant states that she will attend the IEs. She submits her inability to attend in the past was due a family emergency which took her to a trip abroad to attend her father’s funeral. Her absence was then extended because she was unable to return promptly due to the changing landscape of the COVID-19 pandemic and travel restrictions.

32She submits barring her from disputing the denials would be prejudicial because the treatment plans have been incurred. She submits that it was also in her best interest to undergo the IEs sooner rather than later because her injuries and symptoms were likely more severe closer to the time when the treatment plans were submitted. She further submits that attending late IEs is equally as, if not more, prejudicial to her compared to the respondent.

33Here the respondent asks me to disregard the applicant’s reason or explanation for missing the IEs as unreasonable for lack of evidence of how the pandemic prevented her from returning to Canada, or that she ever left Canada or had a family emergency as claimed. In support of its position, the respondent refers to a Tribunal decision¹ wherein the adjudicator found the insured statute-barred from proceeding with his application to the Tribunal pursuant to section 55(1) of the Schedule because he did not comply with the time limits prescribed in section 32, and he did not provide a reasonable excuse for the delay under section 34².

34I do not need to make a finding with respect to the applicant’s reasons for missing the IEs. In my view, section 34 applies to failure to comply with time limits that do not relate to missing section 44 IEs. If indeed the applicant found herself abroad and prevented from returning to Canada for fear of the virus, or because of the changing travel restrictions, I can understand that predicament. The respondent may have also accepted her absence to some extent when it rescheduled the IEs. Also, I note that the applicant’s representative did update the respondent on her absence, in particular with respect to the IEs that were scheduled in July and August. Despite this, it seems the respondent maintained the IEs as scheduled. Regardless, in my view nothing turns on the applicant’s reasons for missing the IEs.

35Turning to prejudice, I find it is to be assessed by the hearing adjudicator. If the applicant attends the IEs, the reports generated will be subject to rigorous evaluation, and the determination of weight to be given these reports is for the hearing adjudicator.

36I am prepared to stay the application until the applicant attends the IEs. I rely on sections 55(2) and (3), which provide that the Tribunal may permit an insured to apply despite non-compliance with a section 44 IE and that it may impose certain terms and conditions, respectively.

37Further, and in the event that I am mistaken about section 34, I also rely on the Tribunal’s ability to control its process and Tribunal Rule 3.1, and, where appropriate, grant a stay. I make this determination for a number of reasons based on the unique facts before me: when the applicant missed the IEs she had already brought the application to the Tribunal, the applicant has agreed to attend the IEs, and, in the circumstances, a complete bar of her claim for the treatment plans would be disproportionate.

38Based on the above, as I’m allowing issues #3 and #4 to proceed pending attendance at IEs, I do not need to determine whether the MIG can proceed as a standalone issue at this time. In the event that the applicant does not attend the IEs, this issue can be determined by the hearing adjudicator.

ORDER

39The application is stayed pending the applicant’s attendance at properly scheduled IEs for treatment plans #3 and #4.

40The stay shall be for 60 calendar days. If the applicant attends, both issues will proceed to the hearing in this matter.

41The Tribunal will contact the parties with a new hearing date in accordance with this order.

42Except for the provisions contained in this order, all previous orders made by the Tribunal remain in full force and effect.

OTHER PROCEDURAL MATTERS

43If the parties resolve the issue(s) in dispute prior to the hearing, the applicant shall immediately advise the Tribunal in writing.

Footnotes

1. 1Canavan v. Unifund Assurance Company, 2021 CanLII 18912 (ON LAT).
2. 2Section 32(1) of the Schedule requires an insured to inform an insurer of an accident within seven days, at which point the insurer will provide the insured with an Application for Accident Benefits form along with various other documents. Section 32(5) then requires an insured to complete and deliver these forms back to the insurer within 30 days. Section 34 allows an insured person to proceed with a late application for accident benefits if the person has a “reasonable explanation” for the delay.