Licence Appeal Tribunal File Number: 20-011053/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:
Amal Yousuf
Applicant
and
Waterloo Insurance
Respondent
MOTION DECISION
ADJUDICATOR:
Ian Maedel, Vice-Chair
APPEARANCES:
For the Applicant:
Ryan St. Aubin, Counsel
For the Respondent:
Yann Grand-Clement, Counsel
HEARD: In Writing
September 20, 2021
BACKGROUND
1The applicant was injured in an automobile accident on December 19, 2017 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (the “Schedule”).
2The applicant was denied certain benefits and submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”).
3The issues in dispute are whether the applicant’s injuries are minor and fall within the Minor Injury Guideline (the “MIG”), a treatment plan for physiotherapy, and interest.
4A case conference took place on July 5, 2021 before Adjudicator Grieves. The respondent raised a preliminary issue and was given until August 5, 2021 to file a preliminary motion.
MOTION
5On May 17, 2021, the respondent filed a Notice of Motion requesting that the Tribunal issue a decision regarding the following preliminary issues:
i. Is the applicant barred from proceeding with her appeal because she failed to submit to an insurer’s examination under s. 44 of the Schedule?
ii. In the alternative, if s. 55(1) of the Schedule does not bar the applicant’s claim, a stay of the proceedings is sought pending the applicant’s attendance at a properly scheduled s. 44 physiatry assessment.
PARTIES’ POSITIONS
6The respondent submits the applicant failed to attend a physiatry assessment scheduled for November 23, 2018. The treatment plan for physiotherapy was denied December 7, 2018, as the applicant failed to attend the insurer’s examination (“IE”) and the treatment was deemed not reasonable or necessary. The applicant has failed to provide a reasonable explanation for her non-attendance at the scheduled IE. The respondent submits an IE is “reasonably necessary”, pursuant to s. 44, as it has been unable to conduct any assessments in the nearly four years since the accident. The applicant has a good faith obligation to permit the respondent to conduct an assessment. Given the circumstances, including the delay, the appropriate remedy is to bar the applicant’s claim from proceeding.
7The applicant submits the original Notice of Examination was provided to her previous address. At the case conference on July 5, 2021, the applicant advised she was prepared to attend a subsequent IE, but none have since been scheduled. The applicant relies on Rule 3.1 of the Common Rules of Practice & Procedure (the “Rules”), and she submits the Rules should be liberally interpreted. There is no willful non-compliance in this case, and the applicant is willing to attend an additional IE so the respondent has the ability to assess the applicant’s injuries. The applicant submits she should not be barred from a hearing on the issues, and she is willing to remedy previous inadvertence to avoid any further prejudice to the respondent. The applicant further submits the respondent’s motion should be denied with costs.
RESULT
Relevant Legislation and Rules
8Section 44(1) of the Schedule defines an insurer’s ability to require an insured person to attend an IE as follows [emphasis added]:
For the purposes of assisting an insurer to determine if an insured person is or continues to be entitled to a benefit under this Regulation for which an application is made, but not more often than is reasonably necessary, an insurer may require an insured person to be examined under this section by one or more persons chosen by the insurer who are regulated health professionals or who have expertise in vocational rehabilitation.
9Section 55(1) disallows applicants from pursuing a benefit if they did not attend an IE when a proper notice has been filed in accordance with the Schedule. Section 55(2) provides the discretion to allow non-compliant insured persons to still proceed with their applications.
10Rule 3.1 of the 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 their merits.
The Motion to Dismiss
11The respondent’s motion to bar this application is denied.
12The Tribunal will rarely dismiss an application prior to a hearing on the merits. When considering the prejudice to both parties, I must conclude that the scales tip in favour of the applicant. Concerns regarding the applicant’s lack of a reasonable explanation for failing to attend the previous IE are ultimately outweighed by the procedural fairness considerations pursuant to Rule 3.1(a).
13Otherwise, denying the applicant’s ability to seek a hearing regarding the MIG determination and the treatment plan in dispute would be unduly prejudicial and contrary to procedural fairness. While I acknowledge there has been a significant delay which has prevented the respondent from obtaining a contemporaneous assessment of her medical condition, this alone shall not be fatal to this specific application.
The Motion to Stay
14The respondent’s motion to stay this matter, pursuant to s. 55(1), is granted. This application shall be stayed for a period of 120 days. This period should permit the respondent to schedule and/or complete the anticipated physiatry IE.
15In assessing whether the insurer’s examination is “reasonably necessary”, pursuant to s. 44(1) of the Schedule, I considered the criteria laid out in Al-Shimasawi v. Wawanesa Mutual Insurance Company, e.g., the timing of the request, the nexus between the requested testing and the impairments, possible prejudice, etc.1
16This matter turns on the potential prejudice wrought to the respondent. The respondent has been totally unable to assess the applicant with regard to her potential injuries from the accident. Put simply, the respondent has not conducted any IEs in this matter, and the respondent is entitled to assess the applicant in light of the medical documentation provided and applicant’s expert reports (if any). The respondent also has an ongoing duty to assess this file, pursuant to the consumer protection mandate of the Schedule.
17The completion of a physiatry IE may well result in the approval of the treatment plan at issue. If not, it will allow the respondent to continue to adjust the file and eventually prepare for a future hearing on the merits.
18The applicant does not deny that an assessment is “reasonably necessary”, and she is willing to attend a future physiatry IE regarding the issues in dispute.
19Otherwise, any issues regarding the potential delay and the reliability of future s. 44 IE reports shall be addressed by the hearing adjudicator at a future hearing, if necessary. At this point in time, the main concern is whether such an IE is “reasonably necessary” in this set of circumstances. I am otherwise satisfied it is.
Costs
20The applicant’s for costs is denied. Costs are a non-compensatory remedy which are rarely imposed, and only when a party has acted unreasonably, frivolously, vexatiously, or in bad faith pursuant to Rule 19.1.
21I am unpersuaded the respondent’s actions in this matter amount to unreasonable or bad faith behaviour in order to meet the threshold for costs. The respondent was entitled to raise the issue of the applicant’s lack of a reasonable excuse for her non-attendance at the previous physiatry IE in November 2018. However, when it was clear the applicant was willing to attend a subsequent IE, I cannot understand why one was not scheduled so the time and expense of this motion could have been avoided.
22Thus, given the totality of the circumstances, I am not prepared to order costs against the respondent pursuant to Rule 19 of the Rules.
OTHER PROCEDURAL MATTERS
23Unfortunately, the Tribunal is not currently scheduling any case conferences until mid-summer of 2022. This matter shall be scheduled for a motion hearing on April 1, 2022 at 11:00 am via teleconference. The parties shall be prepared to conduct further case management and set hearing dates if necessary.
24Except for the provisions contained in this Motion Decision, all previous orders made by the Tribunal remain in full force and effect.
25If the parties resolve the issue(s) in dispute prior to the hearing, the applicant shall immediately advise the Tribunal in writing.
Released: January 4, 2022
___________________________
Ian Maedel
Vice Chair