Licence Appeal Tribunal File Number: 21-012529/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:
Alexandra O. Waring
Applicant
and
Aviva General Insurance Company
Respondent
MOTION DECISION
Order made by:
Craig Mazerolle, Adjudicator
July 4, 2022
BACKGROUND
1The applicant was injured in an automobile accident on February 3, 2016, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the “Schedule”).
2A videoconference hearing is set to start on August 2, 2022.
3The issues in dispute include catastrophic impairment determination, as well as requests for an attendant care benefit (“ACB”) and an award.
NOTICE OF MOTION
4The applicant filed a Notice of Motion (submitted May 9, 2022) seeking the following relief:
a. An order to remove certain evidence from the upcoming hearing.
5The respondent opposed this relief.
PARTIES’ POSITIONS
6The applicant supported her request by claiming that the respondent’s occupational therapy report (dated October 12, 2021) and related Assessment of Attendant Care Needs (“Form 1”) (dated May 31, 2021) were not obtained in accordance with s. 44 of the Schedule. The applicant took issue with how the Notice of Examination for its occupational therapy insurer’s examination (“IE”) only listed catastrophic impairment as an issue under review, not the ACB. Instead, notice of the respondent’s intention to assess the ACB as part of the IE was not provided until after she had met with the occupational therapist. Since both the IE report and Form 1 arose from deficient notice, they should be struck from the hearing. Support for this remedy includes the Tribunal’s case in N.M. v. Aviva Insurance Canada (“N.M.).1
7The respondent first argued that there is no provision under the Schedule that allows for this remedy. Regardless, the applicant attended the occupational therapy IE, and there is no debate over whether the Notice of Examination was compliant (as it relates to catastrophic impairment). Further, s. 44(8) of the Schedule allows insurers to provide oral notice, and s. 44(6) states that parties may agree to waive the five-day notice normally required for an in-person IE. Finally, the respondent highlighted the relevance of the disputed evidence, and the Tribunal’s ability to admit relevant evidence under s. 15(1) of the Statutory Powers Procedure Act.2 The respondent also cited the Tribunal’s mandate for merits-based adjudication and proportionality under Rule 3.1 of the Common Rules of Practice and Procedure.
8In reply, the applicant noted that she is not seeking to have the report struck as it relates to catastrophic impairment.
ANALYSIS
Relevant Legislation
9Section 44(5) of the Schedule dictates the requirements for valid Notices of Examination for IEs, including: medical reasons, details about the assessors, etc.
10Section 44(6) sets out the need for prior notice, unless the parties agree to waive this requirement: “If the attendance of the insured person is required at the examination, the insurer shall give the notice… not less than five business days before the examination, unless the insured person and the insurer mutually agree otherwise.”
11Section 44(8) permits oral notice of IEs, though only “if a written confirmation is given as soon as practicable afterwards.”
12Section 55(1) disallows applicants from pursuing a benefit if they did not attend a properly scheduled IE.
Retroactive Notice of Examination
13I am satisfied that the respondent did not comply with its obligations under s. 44 when it asked its occupational therapist to assess the applicant’s entitlement to the ACB without prior, written notice to the applicant.
14As explained in C.B. v. Allstate Insurance Company of Canada (“C.B.”)3, one of the main purposes of the Schedule’s notice provisions is that it provides insured persons with a chance to determine whether there is information and documents that they might want to provide their insurer to assist in the adjusting process. Similarly, notice that a specific benefit will be reviewed during an IE allows the insured person to put records before the assessor to ensure there is a fulsome understanding of their medical condition as it relates to the issue’s particular