RECONSIDERATION DECISION
Before: Brian Norris
Tribunal File Number: 20-001280/AABS
Case Name: Rockson Amoh v. Pembridge Insurance
Written Submissions by:
For the Applicant: Piera A Segreto, Counsel
For the Respondent: Rachelle Villanueva, Counsel
BACKGROUND
1This request for reconsideration was filed by the Applicant in this matter. It arises out of a decision in which I found that the Applicant was barred from proceeding with his Application.
2The issue that was before me was whether the Applicant failed to attend a section 44 insurer’s examination (“IE”) and, if so, whether the Applicant is barred from proceeding with his Application as a result. I found that the Applicant had failed to attend a properly scheduled IE that resulted in prejudice to the Respondent because it was left without an independent medical opinion. Further, I chose not to exercise my discretion to permit the Application because I felt that the prejudice could no longer be cured as a result of the delay.
3The Applicant submits that I made errors of law and fact such that the Tribunal would likely have reached a difference conclusion had the errors not occurred. He further submits that I violated the rules of procedural fairness. The Applicant seeks a variance of the initial decision to permit his application.
RESULT
4The Applicant's request for reconsideration is denied.
BACKGROUND
5The Applicant was the driver of a vehicle involved in an accident and claimed accident benefits from the Respondent. The Applicant claimed and received payment for income replacement benefits (“IRBs”). The Respondent sought to examine the Applicant pursuant to section 44 of the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the ''Schedule''). Insurer’s examination notices were issued for two separate sets of assessments. I found the first notice ambiguous but found the second notice to be compliant with section 44 of the Schedule. To-date, the Applicant has not attended at an insurer’s examination.
6Compounding the issue is that the Applicant told the Respondent that he returned to work prior to the scheduled date of the second set of assessments. I found that the Respondent was not barred from scheduling IEs following the Applicant’s return to work and, as a result, that the Applicant had failed to attend properly scheduled IEs.
7In my decision, I chose not to exercise my discretion to permit the Application and impose terms or conditions on the proceeding, pursuant to section 55 of the Schedule. I concluded that the prejudice to the Respondent was too great to cure due to the time that passed since the Applicant’s claim for IRBs.
ANALYSIS
8The grounds for a request for reconsideration to be allowed are contained in Rule 18 of the Tribunal’s Common Rules of Practice and Procedure. A request for reconsideration will not be granted unless one or more of the following criteria are met:
a) The Tribunal acted outside its jurisdiction or violated the rules of procedural fairness;
b) The Tribunal made an error of law or fact such that the Tribunal would likely have 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 likely have affected the result.
9Reconsideration is only warranted in cases where an adjudicator has made a significant legal or evidentiary mistake preventing a just outcome, where false evidence has been admitted, or where genuinely new and undiscoverable evidence comes to light after a hearing.
10The Applicant advances his request for reconsideration under grounds (a) and (b).
Error of Fact or Law
11The Applicant submits that I made an error of law by failing to properly consider section 44(9)(2) of the Schedule. He submits that the requirement for the Respondent to make reasonable efforts to schedule the examination for a day, time and place that are convenient to the insured person requires more than to unilaterally schedule examinations. He submits that the onus is on the Respondent to demonstrate that it made the required reasonable efforts. To him, I must conclude that the IEs were not reasonably scheduled and that he was not required to attend the assessments.
12The Respondent submits that it was the Applicant who did not make himself reasonably available for an examination and that a reconsideration is an inappropriate forum for the Applicant to correct his own failures to communicate and cooperate with his insurer. It submits that, prior to the hearing, the Applicant never advised the Respondent of any alleged insufficient notice – he never mentioned scheduling issues, insufficient reasons for the IEs, or that they were booked for times that were not reasonable for him. Further, the Respondent submits that it is the Applicant who bears the onus to establish a reasonable explanation for not attending a properly scheduled IE.
13I agree with the Respondent and find no error of fact or law.
14Pursuant to section 44 of the Schedule, the Respondent is permitted to have the Applicant examined by a regulated health professional to determine whether he is entitled to IRBs. Section 44(9)(2) provides that the Respondent is required to make reasonable efforts to schedule the IE for a day, time and location that is convenient to the Applicant.
15As I noted in my initial decision, the Respondent is not required to canvas dates or times with the Applicant prior to scheduling an IE. To me, the fact that the Respondent rescheduled the IEs was sufficient evidence to show that it made reasonable attempts to schedule the assessment at the Applicant’s convenience. While the Respondent was aware that the Applicant returned to work, it does not know the Applicant’s work schedule. As I noted in my initial decision, the Applicant made no effort to notify the Respondent that the IEs were inconveniently scheduled, and it would be impractical to expect the Respondent to arrange IEs around an unknown work schedule.
Violation of the Rules of Natural Justice
16The Applicant submits that I violated the rules of natural justice by blaming the delay on the Applicant rather than the Tribunal process. He submits that there cannot be an incurable delay if he has complied with the statutory timeframe. He further submits that my consideration for the delay was not included in the parties’ submissions and thus, I acted outside of my jurisdiction by considering the delay, which I reiterate that he attributes to the Tribunal.
17The Respondent submits that the Applicant’s attempts lay blame on the Tribunal process are an effort to detract from his own omissions and non-compliance.
18I find no violation of the rules of natural justice.
19Section 55(1)(2) of the Schedule bars the Applicant from filing an application in the event that they have failed to comply with an examination pursuant to section 44. Section 55(2) provides that the Tribunal has the discretion to permit the Application and section 55(3) provides that the Tribunal may impost terms and conditions if permission is granted pursuant to section 55(2).
20Permitting the Applicant to proceed to a substantive hearing, despite failing to attend IEs, is discretionary. In the Applicant’s situation, I chose not to exercise my discretion to permit the Application because it would leave the Respondent with no independent medical opinion at a substantive hearing and that the prejudice to the Respondent could not be cured by permitting the Applicant to proceed, pending his attendance at an IE. Choosing to not exercise my discretion is not a violation of the rules of natural justice.
21Contrary to the Applicant’s submissions, delays caused by the administration of the Tribunal had no impact on my decision and are certainly not attributed to the Applicant. Indeed, I noted that the period of entitlement ended two-and-a-half years prior to the decision, which included one-and-a-half years within the Tribunal system. Reference to the longer period was done so as part of the legal analysis and application of section 55(3) and to highlight how difficult it would be to remedy the prejudice to the Respondent, should the matter proceed to a substantive hearing. In the Applicant’s situation, the Respondent refused to pay IRBs after the Applicant advised that he returned to work in July 2017. Yet, the Applicant waited until January 2020 to file an application with the Tribunal to dispute this decision. As a result of the Applicant’s non-attendance at the first two sets of IEs, the Respondent has never had an opportunity to have a regulated healthcare professional assess the Applicant with respect to his claim for IRBs. Permitting an IE after the Applicant filed his Application would still be unreasonable considering the timeline, despite the Tribunal’s delays.
22The Respondent upheld its obligations pursuant to section 44. It scheduled and rescheduled IEs, showing that it has made efforts to schedule it at the Applicant’s convenience. The Applicant, to-date, has never advised the Respondent of what a reasonable time or date would be but maintained that he was not required to attend the IEs. The consequence of his decision to not attend the IEs is that he is barred from filing his application to dispute the Respondent’s denial of IRBs.
CONCLUSION
23For the reasons noted above, I deny the Applicant's request for reconsideration.
Brian Norris
Adjudicator
Tribunals Ontario – Licence Appeal Tribunal
Released: January 28, 2022