Licence Appeal Tribunal
Licence Appeal Tribunal File Number: 21-007728/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:
Anna Berardinelli
Applicant
and
Aviva Insurance Company of Canada
Respondent
PRELIMINARY ISSUE DECISION [AND ORDER]
ADJUDICATOR:
Tavlin Kaur
APPEARANCES:
For the Applicant:
Anna Berardinelli, Applicant
For the Respondent:
Andrea Dunbar, Claims Representative
Jonathan White, Counsel
Heard by way of written submissions
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 July 1, 2019.
ISSUES IN DISPUTE
2Preliminary Issues: The preliminary issue to be decided is:
- Is the applicant barred from proceeding with her application for the issues in dispute pursuant to section 55(1)2 of the Schedule for failing to attend multiple scheduled Insurer’s Examinations in contravention of section 44(9) 2.iii of the Schedule?
PARTIES’ POSITIONS
3The respondent submitted that despite multiple insurer examinations (‘IEs’), the applicant has attended only one IE since the subject accident. The applicant’s failure to attend the IEs has prejudiced the respondent’s ability to assess her in a timely fashion. As such, the applicant should be barred from proceeding with her application.
4The applicant did not provide any submissions or evidence in support of her case despite being provided with the case conference report and order.
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:
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: …
- If the attendance of the insured person is required,
i. the insurer shall make reasonable efforts to schedule the examination for a day, time and location that are convenient for the insured person,
ii. 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
iii. 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 Vice-Chair Dymond’s Order dated November 4, 2022.
Notice of Examination dated November 6, 2019 re Non-Earner Benefit
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 her medical condition or the specific provision of the Schedule that it relied upon. The medical reason is vague. It states that “the impairments identified do not appear clearly or directly caused by the accident.” It is unclear what impairments that the respondent is referring to. Therefore, I find this notice to be deficient.