Citation: [L.D.] v. Gore Mutual Insurance Company, 2022 ONLAT 17-002762/AABS

Licence Appeal Tribunal File Number: 17-002762/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:

[L. D.]

Applicant

and

Gore Mutual Insurance Company

Respondent

DECISION AND ORDER

RESPONDENT’S MOTION UNDER S. 55 OF THE SCHEDULE

VICE-CHAIR: D. Gregory Flude

APPEARANCES:

For the Applicant: Ashu Ismail, Counsel

For the Respondent: Arthur R. Camporese, Counsel

HEARD: by Videoconference: August 10, 2022

REASONS FOR DECISION AND ORDER

BACKGROUND

1The applicant was involved in an automobile accident on November 24, 2015 and sought an attendant care benefit pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (“Schedule”). The respondent denied the applicant’s claim, so she submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”).

2The respondent brings this motion for an order under s. 55 of the Schedule to bar the proceeding. Section 55 prohibits an application to the Tribunal where the applicant has failed to attend a properly scheduled insurer’s examination (“IE”) under s. 44 of the Schedule. The respondent alleges that the applicant has failed to attend three properly schedule IEs.

3Since the respondent filed the motion, events have moved forward, and the applicant has now been found to meet the definition for catastrophic impairment. She has advised the Tribunal that she wants to attend IEs so her claim can move forward to a final resolution. The alternate relief the respondent seeks is an order staying the proceeding until the applicant attends IEs. In the circumstances, I find that the most just, expeditious, and cost-effective manner to move this matter on to final resolution is the set a timetable for attendance at IEs to determine the applicant’s entitlement to attendant care.

LAW

4The respondent’s right to conduct IEs is set out in s. 44 of the Schedule. The first limitation on the right is that the respondent exercise it right “not more often than is reasonably necessary.” The balance of the s. 44 identifies the steps an insurer must take to book an appointment. For the purposes of this motion, the applicant points to s. 44(5)(a):

If the insurer requires an examination under this section, the insurer shall arrange for the examination at its expense and shall give the insured person a notice setting out,

(a) the medical and any other reasons for the examination.

5Pursuant to s. 55, failure to attend an IE acts as a bar to bringing an application to the Tribunal. Section 55 gives the Tribunal discretion to permit an application to proceed despite non-attendance on terms. The applicable provisions of s. 55 as they read on the date of application to the Tribunal are:

(1) Subject to subsection (2), an insured person shall not apply to the Licence Appeal Tribunal under subsection 280 (2) of the Act if any of the following circumstances exist:

2. The insurer has provided the insured person with notice in accordance with this Regulation that it requires an examination under section 44, but the insured person has not complied with that section.

(2) The Licence Appeal Tribunal may permit an insured person to apply despite paragraph 2 … of subsection (1).

(3) The Licence Appeal Tribunal may impose terms and conditions on a permission granted under subsection (2).

6I will review three issues in arriving at my decision: how many times did [Ms. D] fail to attend IE appointment, where the “medical and any other reasons” sufficient such that the provisions of s. 44(4)(a) are satisfied, and if so, should I exercise my discretion under s. 55 to permit the application for an attendant care benefit to proceed.

IE Appointments

7As stated above, the respondent submits that [Ms. D] failed to attend at three IEs – an assessment by Ranu Singh, Occupational Therapist (“OT”), scheduled for April 18, 2017; an assessment by Anna Matrosov, OT, scheduled for November 30, 2017; and a third assessment by Joan Saunders, OT, scheduled as a replacement for Ms. Matrosov and subsequently cancelled by the respondent. [Ms. D] submits that, if the notices were compliant with s, 44(5)(a), then she failed to attend one IE. In her submission, the respondent cancelled the others.

8In submissions, the respondent concedes that it cancelled the third IE because [Ms. D]’s entitlement to the benefit had expired. At that time [Ms. D] had not been found to be catastrophically impaired so she was limited to a two-year period of entitlement. The third IE was scheduled after the expiry of the two years and the respondent was of the opinion that it no longer had the right to require [Ms. D] to attend IEs for attendant care. By virtue of her catastrophic impairment designation [Ms. D] is now entitled to attendant care for life or until the policy limits have been exhausted.

9Of the two remaining IE appointments, the respondent concedes that it cancelled the second appointment, but in circumstances where [Ms. D]’s counsel had tainted the process by communicating directly with the respondent’s assessor. Other than identifying the exchange between counsel and the assessor, the respondent does not expand on why the assessment did not go ahead. It appears to take the position that it is self-evident that its assessor was compromised in some manner, stating in its factum:

Given the direct communication that had occurred between the Applicant's counsel and the IE assessor, and concerns relating to the assessor's impartiality arising therefrom, the examination did not proceed as scheduled.

10I find it far from self-evident, without further evidence of impropriety, that communications between counsel and an assessor retained by the other party would have any material impact on the assessor’s objectivity and professionalism rendering her unable complete the assessment to the best of her ability. In these circumstances, the cancellation of the November 20, 2017 assessment must be laid at the door of the respondent, leaving only [Ms. D]’s failure to attend the April 18, 2017 as her only failure.

Medical and any other reasons

11[Ms. D] submits that the Notice of Examination with respect to the April 18, 2017 appointment fails to give medical and any other reasons. I do not agree. Before examining those reasons, I will look at the history of assessments that precedes the April 18, 2017 appointment.

12Following the accident on November 24, 2015, [Ms. D] was assessed several times. On December 15, 2015, Sasha Stewart, OT, assessed her attendant care needs at $8,262.22 per month. On receipt of that assessment the respondent arranged for [Ms. D] to be assessed by its OT, Ranu Singh. In a report dated March 2, 2016, Ms. Singh found [Ms. D] required $1,123 per month in attendant care services. Ms. Stewart conducted a second assessment and, in her report dated April 5, 2016, again found [Ms. D] required $8,262.22 per month in attendant care. Following a second assessment on September 7, 2016, Ms. Singh found [Ms. D] needed $774.29 per month.

13Approximately four months later, on January 25, 2017, Ms. Stewart found that [Ms. D] required $3,930.74 in attendant care. This last Stewart report stimulated the respondent to require [Ms. D] to undergo a further assessment with Ms. Ranu. By letter dated March 30, 2017, enclosing the Notice of Examination, the respondent informed [Ms. D] that the appointment was scheduled for April 18, 2017. [Ms. D]’s counsel replied on April 6 informing the respondent that the Notice of Examination failed to give adequate medical and any other reasons. No other grounds were alleged although subsequently there have been allegations against Ms. Singh that her previous assessment had resulted in [Ms. D] sustaining a hernia. Those allegations have proceeded to litigation, but at this time they are only allegations and I have not considered them in arriving at my conclusions.

14The medical and other reasons set out in the Notice of Examination state:

the amount of the submitted Form 1 has tripled from the two previous Form 1’s submitted … Due to significant increase in personal care needs we require Section 44 assessment to identify the decline in your ability to care for yourself as this has not been reflected in the medical documents we currently have on file which have documented improvement

15The sufficiency of medical and any other reasons was considered by the Tribunal in 17-004358 v Economical Mutual Insurance Company, 2018 CanLII 112110 (ON LAT). At paragraph [13] of the decision the Tribunal states:

The recent reconsideration decision, M.B. v. Aviva Insurance Canada, states that a notice must include the following elements to satisfy the “medical and any other reasons” requirement of s. 44(5):

(a) “specific details about the insured’s condition” or information that the insurer does not have about an insured’s person’s condition;

(b) the benefit(s) or determination(s) at issue; and,

(c) the section(s) of the Schedule being relied on.

16In the current case, the respondent identified the benefit in dispute since a Form 1 denotes an attendant care benefit. It stated that the recent Form 1 was in an amount triple the amount found by its assessors and noted that this increase is inconsistent with recent medical records showing overall improvement. It identifies the section in question, s. 44. I find that the reasons set out are sufficient to permit [Ms. D] to make an informed decision whether to attend the assessment or abandon her claim. She certainly did not abandon her claim as she filed her appeal with the Tribunal several days after her non-attendance.

17[Ms. D]’s failure to attend the April 18, 2017 IE triggers the provisions of s. 55. It remains for me to consider the exercise of my discretion.

Discretion under ss. 55(2) and (3)

18On the facts before me, I find that [Ms. D] failed to attend one IE in April 2017. While in and of itself, in the right circumstances, this failure might be sufficient to strike her claim, she has advanced her claim vigorously, has now been determined to be catastrophically impaired, and has stated a willingness to attend rescheduled IEs. In my view, it would be unjust in these circumstances to strike her claim at this point.

19I am cognizant of the fact that her application has now been before the Tribunal for in excess of five years and must be moved along to resolution. For this reason, I am not prepared to order a stay of her application until she attends. Such an order is too vague and open to further slippage of time. Instead, the preferable course is for the parties to take immediate steps to have the IEs completed and the matter set down for a hearing. To bring this outcome about, I will set a timetable.

Order

20Within the next 30 days the parties shall agree a mutually acceptable date for [Ms. D] to attend an attendant care IE, such IE to take place within 90 days after agreeing the date.

21In the event the parties cannot agree dates for the IE within 30 days, they may each submit three proposed dates to me within 10 days of reaching an impasse and I will set a date. I will remain seized of this issue until the IEs are completed.

22Should [Ms. D] fail to attend the scheduled IE, the respondent may move for an order staying this application.