Haji v. The Personal Insurance Company, 2022 CanLII 46846

Licence Appeal Tribunal

Citation: Haji v. The Personal Insurance Company, 2022 ONLAT 20-010507/AABS - PI

Licence Appeal Tribunal File Number: 20-010507/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:

Jamilo Haji

Applicant

and

The Personal Insurance Company

Respondent

PRELMINARY ISSUE DECISION

VICE-CHAIR:

Ian Maedel

APPEARANCES:

For the Applicant:

Adam D. Romain, Counsel

For the Respondent:

Andrew C. McKague, Counsel

Spencer Wong, Counsel

HEARD BY WAY OF WRITTEN SUBMISSIONS

BACKGROUND

1The applicant was involved in an automobile accident on March 6, 2011 and sought benefits pursuant to the Statutory Accident Benefits Schedule Effective September 1, 2010 (“Schedule”). The applicant was denied certain benefits by the respondent and submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”).

2A case conference was conducted June 8, 2021. The respondent raised two preliminary issues. A written preliminary hearing was scheduled for January 31, 2022.

3A substantive videoconference hearing was scheduled for July 11-15, 18-19, 2022. The substantive issues in dispute include a catastrophic impairment determination, income replacement benefits (“IRB”), three treatment plans, the cost of completing the Application for Determination of Catastrophic Impairment (“OCF-19”), and interest.

PRELIMINARY ISSUES

4The respondent raised the following preliminary issues:

i. Is the applicant barred from proceeding to a hearing for the denial of the IRB because the applicant failed to attend an Examination Under Oath (“EUO”) as required by s. 33(2) and 33(3) of the Schedule?

ii. Is the applicant barred from commencing this application on the basis that she failed to comply with the requirement of s. 44 of the Schedule, as a result of failing to attend two remaining catastrophic insurer’s examinations (“IEs”) as required by the examiner?

RESULT

5I find the following:

i. The request to bar this application due to non-attendance at an EUO is denied;

ii. The request to bar this application, pursuant to s. 55(1)2, of the Schedule is denied;

iii. The application shall be stayed for period of 120 days to permit the respondent to conduct the outstanding, “reasonably necessary” physiatry IE;

iv. No costs shall be awarded pursuant to Rule 19.

PARTIES’ POSITIONS

6The respondent submits the applicant failed to attend a virtual EUO (dated April 22, 2021), pursuant to s. 33(2) of the Schedule. The applicant has not attended an EUO despite nearly a year of scheduling efforts, and, as a result, the application should be barred. Similarly, the applicant has failed to attend physiatry, occupational therapy (“OT”), or vocational assessment IEs scheduled to address catastrophic impairment and IRB entitlement.

7In February 2021, the respondent was advised the applicant had moved from Canada to Amsterdam in the Netherlands. The respondent submits this move adversely affected its ability to conduct the remaining IEs at issue. According to the respondent, these IEs are “reasonably necessary”, pursuant to s. 44(1) of the Schedule. The respondent submits this is a matter of procedural fairness, and its ability to make a full answer and defence will be compromised if it cannot conduct these outstanding IEs. Finally, the respondent submits the applicant has repeatedly frustrated scheduling process for the IEs, failing to respond to inquiries regarding when and why she travelled to Amsterdam and when she would be returning to Calgary (i.e., her home in Canada). The respondent submits these facts strongly favour barring the application, or, in the alternative, staying this application pending her attendance at the outstanding IEs.

8The applicant submits she never refused to attend an EUO, and failure to attend one does not bar the application before the Tribunal. The insurer had already denied the benefits long before the EUO request and suspended payment of the IRB one month prior to the EUO (scheduled for April 22, 2021). Regardless, this argument is moot, given the applicant attended an EUO on November 12, 2021.

9In regard to the IEs, the respondent did not request these examinations in a timely manner following the receipt of the OCF-19. That is, the respondent waited 18.5 months before requesting these examinations. Further, the applicant argued the IEs at issue were not scheduled pursuant to s. 44 of the Schedule, as the notices were deficient, pursuant to s. 44(5). Specifically, the applicant claimed they failed to include medical reasons for the examinations. The respondent also failed to make reasonable efforts to schedule the IEs for a location that was convenient for the applicant and failed to properly serve the applicant pursuant to s. 44(9)2i; affecting service of the notice for both the physiatry and OT IE at her Calgary address, despite having knowledge she was residing in Amsterdam. Similarly, the notice of the virtual occupational therapy IE was deficient as it failed to specify a location, weblink or URL within the notice letter. As a result of the respondent’s actions, the applicant is seeking costs, pursuant to Rule 19.1 of the Tribunal’s Common Rules of Practice & Procedure (“Rules”).

PROCEDURAL ISSUES

10The respondent submits the applicant violated the previous Case Conference Report and Order regarding the page limits for submissions. The respondent submits the applicant’s submissions are in excess of the 10 pages allotted. That is, when they are properly reformatted, they amount to 16 pages in length. Thus, the respondent requests that paragraphs 26-39 of the applicant’s responding submissions be excluded, as they are highly prejudicial and procedurally unfair.

11In response, the applicant filed sur-reply submissions submitting the respondent improperly split its case by providing additional argument and relying on previously undisclosed documents in its reply submissions. Specifically, the adjuster’s log notes were not previously disclosed, and, in fact, they remain undisclosed (except for the few excerpts appended to the reply submissions). The respondent also provided a new argument regarding the applicant’s failure to complete the EUO conducted on November 12, 2021. Otherwise, the applicant would have insisted on a complete evidentiary record and conducted cross-examination on the adjuster specific to the log notes. These reply submissions should be excluded pursuant to Rule 9.4 of the Rules. Finally, the applicant submits the respondent comes before the Tribunal with “unclean hands”¹, as it first violated the page limits laid out in the previous Order, and the applicant was forced to respond to the excessive initial submissions. The page limits should be extended to permit a determination of the substantive merits of the preliminary issues raised.

12After reviewing the totality of the submissions provided, I am not prepared to strike the disputed written materials. If either of the parties had concerns with the page limits imposed in the previous Order, they had a duty to file a Notice of Motion. The Tribunal may grant a motion that seeks to increase the page limits, if merited. However, striking submissions is a remedy rarely exercised, especially when alternate forms of relief are available.

13I am persuaded that the respondent has split its case. This is a matter of procedural fairness, as the respondent made submissions not originally found in the initial written submissions. The respondent also relied on adjuster’s log notes that had not previously been produced to the applicant. Normally, the applicant would file a Notice of Motion and seek leave from the Tribunal to file sur-reply submissions. This is a common form of relief sought when a party has split its case. However, instead of seeking leave from the Tribunal, the applicant simply filed the sur-reply submissions. In failing to seek leave to file these additional submissions, the applicant risked exclusion of her sur-reply.

14However, any perceived unfairness wrought as a result of the respondent’s reply submissions is largely ameliorated through these sur-reply submissions. In my view, cross-examination of the adjuster regarding the log notes is not a form of relief that would normally be granted on a procedural motion. Otherwise, the applicant has had the opportunity to address the arguments raised by the respondent in reply. In the end, I am content to simply rely on the totality of submissions provided and will place whatever weight upon them I deem necessary. However, the parties shall be reminded that procedural orders like page limits exist to ensure fairness to both parties and the Tribunal. Breach of previous orders may otherwise result in exclusion of materials and is wholly at the discretion of the individual hearing adjudicator.

Examination Under Oath

15Section 33(2) of the Schedule provides that, if requested by the insurer, an insured person shall submit to an examination under oath. The section provides the following limits to this power, i.e., insured persons are not required to (a) submit to more than one examination under oath in respect to matters relating to the same accident, nor are they required (b) to submit to an examination under oath during a period when the person is incapable of being examined under oath because of his or her physical, mental, or psychological condition.

16Section 33(6) states that the insurer is not liable to pay a benefit in respect of any period during which the insured person fails to comply with subsection (1) or (2). Pursuant to s. 33(4), the insurer shall ensure the EUO is scheduled for a time and at a location convenient for the applicant. Notice shall include the date and location of the examination, that the applicant is entitled to be represented by counsel or representative, the reason for the examination, and that the scope of the EUO will be limited to matters relevant to the entitlement to benefits.

17The respondent’s request to bar this application pursuant to her failure to attend an EUO is denied. I am not persuaded the Tribunal has the legislative authority to bar an application due to an applicant’s failure to attend an EUO.

18Neither of the parties have directed me to any legislation that empowers the Tribunal to bar an application for non-attendance at an EUO. This absence stands in stark contrast to, say, the remedy available to an insurer when an insured person does not attend a properly scheduled IE. That is, if an applicant does not attend an IE that complies with s. 44, the respondent may apply to have the application barred pursuant to s. 55 of the Schedule. For EUOs, the only legislated relief is a suspension of benefits until the applicant attends the EUO, pursuant to s. 33(6) of the Schedule. Without a specific legislative provision granting me the ability to make such a significant order, I cannot impose relief that is not specifically enumerated in the applicable legislation.

19While the applicant did attend an EUO on November 12, 2021, it was not completed. The EUO was terminated after 44 minutes when the applicant indicated she was suffering from a “terrible headache” and was unable to continue. It is clear from the transcript provided that the respondent had not completed the EUO.² The applicant submits she was incapable of completing the EUO, pursuant to s. 33(2)(b), and that rescheduling an EUO may not be realistic in light of her condition(s).

20While I agree the applicant attended the EUO on November 12, 2021, the examination was not completed. Unfortunately, it was marred by unproductive comments by counsel, which interfered with the ability to conduct the EUO effectively. The EUO was ultimately terminated due the applicant’s condition. However, it was clearly anticipated by both counsel that this EUO would be rescheduled. From the November 12, 2021 email correspondence, it is clear the respondent viewed the EUO was incomplete.³ In reply email correspondence, applicant counsel indicated “you may reschedule… now if you like, but I expect it will have a similar result”.⁴

21Despite this correspondence, the EUO has yet to be rescheduled. There has also been no notice provided to the applicant about when and where she needs to attend to complete the EUO.

22Given that the applicant has not failed to attend a subsequent, properly scheduled EUO, I have no ability to suspend the benefits, pursuant to s. 33(6) of the Schedule. Only if the applicant fails to attend a future EUO could the benefits potentially be suspended from the date of non-attendance. Given that a non-attendance has not occurred, there is no relief I can grant the respondent pursuant to s. 33 of the Schedule at this time.

Request to Dismiss the Application

23The respondent’s motion to dismiss this application, pursuant to s. 55(1)2, is denied.

24Due to the high level of prejudice facing an applicant when such a remedy is granted, the Tribunal will rarely dismiss an application prior to a hearing on the merits. Therefore, when considering the prejudice to both parties, I must conclude that the scales tip in favour of the applicant. Put another way, denying the applicant’s ability to adjudicate the claim relating to an alleged catastrophic impairment, IRB, and treatment plans would be unduly prejudicial and contrary to procedural fairness, pursuant to Rule 3.1(a) of the LAT Rules. I am also satisfied that there is another adequate remedy for the applicant’s breach, namely, a stay of proceedings.

Notices of Examination

25Before an insurer can rely on s. 55(1) due to a missed IE, it must first be determined whether the applicant was properly served with a compliant Notice of Examination. The applicant submits the respondent’s Notices of Examination were deficient. After reviewing the Notices provided, I am satisfied only the correspondence provided on January 21, 2021 related to a physiatry IE complies with s. 44(5) of the Schedule.

26Pursuant to s. 44(5) of the Schedule, a Notice of an Examination should include the medical and other reasons for the examination; whether the attendance of the insured person is required at the examination; the name of the person(s) conducting the examination, their profession, titles, and specialization; and if the attendance of the insured person is required and the date/time/location of the examination.

27The January 21, 2021 correspondence includes correspondence which lists the ongoing entitlement to IRB and catastrophic impairment as the impetus for the IE. It then lists the complete inability test and makes reference to specific sections of the Schedule. It then indicates a second opinion is required for whether the applicant sustained a catastrophic impairment. It also states that the applicant requires an update following a spinal surgery in 2017. No updated medical records were received to confirm post-surgery status, and there was no medical documentation to indicate whether physical symptoms had improved or resolved. The respondent also requested the status of the applicant’s psychological impairment.⁵ The Right to Dispute Form is also attached, including information required to make an application to the Tribunal and information regarding the two-year time limit.

28I am satisfied that this correspondence complies with s. 44(5)(a), as it provides medical and other reasons for the examination. I am also satisfied that the information related to the time/date/place and name, professional designation, and specialty of the assessor is present, and so the letter complies with the remainder of the requirements under s. 44(5).⁶

29The location of the physiatry IE was noted as Calgary, Alberta. I am persuaded that, on January 21, 2021, the respondent was unaware the applicant had travelled to Amsterdam. It was only on February 17, 2021 that the respondent received correspondence from the applicant indicating she was “out of town”⁷, and it was not confirmed until February 25, 2021 that the applicant was residing in Amsterdam.⁸ Thus, I am not persuaded the respondent’s Notice was served with the foreknowledge she would otherwise be unable to attend this IE in Calgary as scheduled.

30The remainder of the Notices provided are non-compliant with s. 44(5) of the Schedule. The Notices provided on February 12, 2020 indicate at least four different IEs, but the Neuropsychological and Orthopedic Surgeon examinations were scheduled for in-person examinations in Richmond Hill and Brampton – both in the Province of Ontario. In contrast, the OT IEs were scheduled for the applicant’s home address in Calgary and a Calgary-based clinic. These conflicting addresses obviously would have caused confusion, especially when the respondent was aware the applicant was residing in Calgary at the time.⁹

31The Notices provided – February 12, 2020, May 28, 2020, July 22, 2020, and October 19, 2020 – for OT examinations also fail to include the professional designation of the assessor, their qualifications, and titles. I can assume that this assessor is a physiotherapist, but the box that lists “Profession or Designation” on each notice is empty.¹⁰ The applicant should not be left to assume or infer the accreditation or qualifications of the assessor. Thus, these Notices are all non-compliant with s. 44(5)(c) of the Schedule.

32Similarly, the Notices of Examination (dated February 16 and May 19, 2021) for the vocational IE are deficient.¹¹ While they indicate the examination is to take place virtually, they provide none of the essential login data. No URL, hyperlink /virtual address, PIN, or password is provided. Nor does it state that the specific electronic contact information will follow in subsequent correspondence. Conversely, this information was all provided to the applicant in the Notice of EUO dated March 30, 2021.¹²

33Any application of s. 55 of the Schedule is predicated on “notice in accordance with this regulation” as per s. 55(1)2. This notice is required pursuant to the consumer protection mandate of the Schedule. Thus, if the Notice of Examination is deficient, there can be no determination of whether the IE is “reasonably necessary” pursuant to s. 44(1) of the Schedule. The only compliant Notice of Examination provided is in regard to the physiatry IE sought.

Is the Physiatry IE “Reasonably Necessary” Pursuant to the Schedule?

34In 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 potential prejudice to both sides, the number of previous IEs requested, the nature of the examinations, new issued raised that require further evaluation and whether there is a reasonable nexus between the IEs requested and the applicant’s injuries.¹³

35I am not persuaded there is an issue with regard to the timing of the physiatry IE request. The August 2020 and January 2021 Notices of Examination were provided well in advance of the hearing date. I am not satisfied these requests were made at the last minute, nor were they made on the eve of the hearing solely for the purposes of bolstering the respondent’s case. I am similarly unpersuaded that these notices failed to comply with s. 45(3)(b) of the Schedule, despite the fact that they were not provided within 10 days of the receipt of the OCF-19. While I acknowledge there was a significant delay between the denial of the OCF-19 and the first notice of this IE, the Schedule is silent with respect to non-compliance of s. 45(3)(b). Unlike other sections of the Schedule, like s. 38(11) which specifically provides that an insurer is prohibited from taking the position that the Minor Injury Guideline applies, a failure to comply with s. 45(3)(b) contains no similar enforcement measure.

36This matter, therefore, turns on prejudice to the parties. Without this examination, the respondent will be unable to assess the applicant’s physical impairments, specifically in relation to the applicant’s potential catastrophic impairment and the claim for IRB. The respondent has an ongoing duty to adjust the file and conduct its own medical examinations of the applicant’s physical impairments. If forced to proceed to a hearing without this evidence, the respondent would be placed at a distinct disadvantage. Specifically, it would not know the case to meet, and procedural fairness would be compromised (as per Certas Direct Insurance Company v. Gonsalves¹⁴).

37When weighing potential fairness, the Tribunal is also bound to consider the serious nature of a catastrophic claim that includes potentially enhanced medical, rehabilitation, and attendant care benefits. This disputed designation must be part of the calculus when determining potential prejudice wrought to the insurer if unable to complete its proposed examinations. Thus, when I consider the potential prejudice to each side, the scales must tip in favour of the respondent and its ability to conduct this outstanding physiatry IE.

38I accept that the respondent has only been able to conduct two other IEs related to the potential catastrophic impairment, and the most recent IE (related to the IRB in dispute) was conducted in 2017. I do not otherwise consider this IE request to be excessive, especially given the receipt of additional clinical notes and records provided by the applicant in April 2021.¹⁵ Therefore, given the time elapsed since the previous IRB examination in 2017 and the additional medical records, I am persuaded that the timing of this IE supports the position that it is “reasonably necessary”.

39Finally, the alleged catastrophic impairment is a relatively new issue the respondent has been unable to assess with regard to the applicant’s physical abilities. I am also persuaded there is a reasonable nexus between the applicant’s alleged physical injuries and the physiatry IE. Given the catastrophic impairment in dispute, the respondent will be required to provide a calculation related to a whole person impairment in order to address criteria 7 of s.3.1(1)7 of the Schedule.

40When I consider the totality of the circumstances, I must conclude the physiatry IE at issue is “reasonably necessary”, pursuant to s. 44(1) of the Schedule. There will be clear prejudice wrought to the respondent if this IE is not completed, particularly in light of the claim for catastrophic impairment and the significant time period elapsed since the previous IE related to the IRB. Similarly, there are additional medical records, and there is a nexus between the disputed IE and the issues in dispute. Thus, the physiatry IE is “reasonably necessary”, pursuant to the Schedule.

41I am prepared to stay this application for a period of 120 days. This period should permit the respondent to schedule and complete the “reasonably necessary” physiatry IE at issue.

COSTS

42The applicant’s request for costs is denied.

43Costs are a discretionary remedy imposed when a party has acted unreasonably, frivolously, vexatiously, or in bad faith pursuant to Rule 19.1 of the Rules. The threshold for costs is high, and they are rarely awarded. Although some of the notices of IEs provided by the respondent were deficient, I cannot conclude it acted in a manner that reaches the high standard for ordering costs. The respondent has simply attempted to conduct IEs since 2020. Otherwise, I am not persuaded the threshold for costs has been met at this juncture. Thus, no costs shall be awarded.

ORDER

44I order the following:

i. The request to bar this application due to non-attendance at an EUO is denied;

ii. The request to bar this application, pursuant to s. 55(1)2, of the Schedule is denied;

iii. The application shall be stayed for period of 120 days to permit the respondent to conduct the outstanding, “reasonably necessary” physiatry IE;

iv. No costs shall be awarded pursuant to Rule 19;

v. The substantive hearing previously scheduled for July 11-15, 18-19, 2022 is adjourned;

vi. The parties shall contact the Tribunal to schedule a case conference for case management purposes, and to set a hearing date, if necessary, by September 30, 2022.

Footnotes

1. 1Sur-Reply Submissions of the Applicant, pg. 8.
2. 2Reply Submissions of the Personal Insurance Company, Tab 3, page 24.
3. 3Sur-Reply Submissions of the Applicant, Tab 3.
4. 4Ibid.
5. 5Preliminary Issue Hearing Brief of the Personal Insurance Company, Tab 11.
6. 6Ibid.
7. 7Ibid. Tab 12.
8. 8Responding Preliminary Issue Hearing Submissions of the Applicant, Tab 19.
9. 9Preliminary Issue Hearing Brief of the Personal Insurance Company, Tab 2.
10. 10Ibid. Tabs 2, 4, 5, 8.
11. 11Ibid. Tabs 10, 14.
12. 12Preliminary Issue Hearing Brief of the Personal Insurance Company, Tab 22.
13. 13[2007] O.F.S.C.D. No. 82 (FSCO) as cited in Applicant v. CAA Insurance, 2018 CanLII 76420 (ON LAT), Preliminary Issue Hearing Brief of the Personal Insurance Company, Tab 36.
14. 142011 ONSC 3986, Preliminary Issue Hearing Brief of the Personal Insurance Company, Tab 34.
15. 15Responding Preliminary Issue Hearing Submissions of the Applicant, Tab 30.