Licence Appeal Tribunal File Number: 21-012541/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:
Mostafa Tazi
Applicant
and
Certas Home and Auto Insurance Company
Respondent
PRELIMINARY ISSUE DECISION [AND ORDER]
ADJUDICATOR:
Tavlin Kaur
APPEARANCES:
For the Applicant:
Mostafa Tazi, Applicant
For the Respondent:
Cara Lee Berseth, Adjuster
Andrea R. Lim, Counsel
Heard by way of written submissions
REASONS FOR DECISION [AND ORDER]
BACKGROUND
1This proceeding concerns a dispute between an insured person (the applicant) and an insurer (the respondent) about automobile insurance benefits under the Statutory Accident Benefits Schedule – Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”) arising out of a motor vehicle accident on November 22, 2019.
PRELIMINARY ISSUE IN DISPUTE
2The preliminary issue to be decided is:
- Is the applicant barred from a hearing because the applicant failed to attend an insurer’s examination (“IE”) pursuant to s.55(2) of the Schedule, to preclude the applicant from applying for an income replacement benefit (“IRB”)?
PARTIES’ POSITIONS
3The respondent submits the applicant has not attended the functional abilities evaluation, vocational assessment and labour market survey. The respondent submits that all of the insurer examinations (“IE”) were properly scheduled and subject to the requirements of notice pursuant to section 44 of the Schedule. It further submits that it would be unfair to proceed with the application without affording it the opportunity to complete the post-104 income replacement benefit assessments, including the FAE and vocational assessment and labour market survey, particularly since the applicant is proceeding with a claim for post-104 weeks IRBs.
4The applicant submits that he made every reasonable effort to attend the IEs. He also asked to reschedule an IE because he had a medical appointment for his children, but his requests were ignored by the respondent.
LAW
5Section 44(1) of the Schedule provides that, for the purposes of assisting an insurer to determine if an insured person is or continues to be entitled to a benefit for which an application is made, but no more often than is reasonably necessary, an insurer may require an insured person to be examined by one or more persons chosen by the insurer who are regulated health professionals or who have expertise in vocational rehabilitation.
6The requirements for a notice of examination set out in s. 44(5) of the Schedule are:
(1) 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;
(b) whether the attendance of the insured person is required at the examination;
(c) the name of the person or persons who will conduct the examination, any regulated health profession to which they belong and their titles and designations indicating their specialization, if any, in their professions; and
(d) if the attendance of the insured person is required at the examination, the day, time and location of the examination and, if the examination will require more than one day, the same information for the subsequent days.
7Section 44(9)2. sets out the rules for an in-person IE:
The following rules apply in respect of the examination:
(2) If the attendance of the insured person is required,
(a) the insurer shall make reasonable efforts to schedule the examination for a day, time and location that are convenient for the insured person,
(b) the insured person and the insurer shall, not later than five business days before the day scheduled for the examination, provide to the person or persons conducting the examination such information and documents as are relevant or necessary for the review of the insured person’s medical condition, and
(c) the insured person shall attend the examination and submit to all reasonable physical, psychological, mental and functional examinations requested by the person or persons conducting the examination.
8Section 55(1)2 of the Schedule provides that an insured person shall not apply to the Tribunal if the insurer has provided the insured person with notice that it requires an examination under s. 44, but the insured person has not complied.
9Taking all of the above provisions, the Schedule is clear that the applicant has a duty to participate in each in-person IE that is reasonably necessary and for which there is a Schedule-compliant notice. If the applicant fails to comply, there must be a reasonable explanation provided for the non-compliance. To be clear, the respondent must first prove that a Notice of Examination complies with s. 44(5) of the Schedule in order for it to rely on it as a basis to seek a statute bar under s. 55.
10In seeking such a remedy, the respondent must ensure that it provides specific details of the applicant’s conditions, the benefit in dispute and any section it relies upon. The reasons must be clear enough so that the applicant can make a well-informed decision.
11The notice requirements set out in s. 44(5) should be strictly construed and the insurer's notice should be closely examined to ensure it complies. If the respondent’s notice does not comply with s. 44(5), an insurer cannot rely on the severe remedy available in s. 55 of the Schedule to bar an insured’s application from proceeding before the Tribunal.
Are the notices of examination in compliance with s. 44(5)?
12The next stage of my analysis will address the notices of examination for the substantive issues set out in the Case Conference Report and Order dated December 7, 2022.
Notice of examination dated August 19, 2021
13I find that the notice did not comply with section 44(5) of the Schedule. The notice notes the type of examination. It refers to the benefit in dispute. However, the notice did not refer at all to his medical condition or the specific provision of the Schedule that it relied upon. Moreover, it does not specify what Michael Ko’s profession or designation is. Therefore, I find this notice to be deficient.
Notice of examination dated April 7, 2022
14I find that the notice did not comply with section 44(5) of the Schedule. The notice notes the type of examination. It refers to the benefit in dispute. However, the notice did not refer at all to his medical condition or the specific provision of the Schedule that it relied upon. Moreover, it does not specify what Michael Ko’s profession or designation is. Therefore, I find this notice to be deficient.
Notices of examination dated September 27, 2022 and October 17, 2022
15I find that the notices did not comply with section 44(5) of the Schedule. The notices note the type of examination. It refers to the benefit in dispute. However, the notices did not refer at all to his medical condition or the specific provision of the Schedule that it relied upon. Moreover, they refer to the functional abilities evaluation as a FAE. An individual who is self-represented might not understand what that is. This should have been specified given the circumstances. Therefore, I find these notices to be deficient.
16For the reasons noted above, I find that the applicant is not statute-barred from proceeding with his application.
ORDER
17The preliminary issue is dismissed. The matter will proceed to a hearing on the substantive issues in dispute.
Released: February 15, 2023
___________________________
Tavlin Kaur
Adjudicator