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Citation: A.A. v. TD Insurance Meloche Monnex, 2023 ONLAT 20-015402/AABS - PI
Licence Appeal Tribunal File Number: 20-015402/AABS
In the matter of an application pursuant to [subsection 280(2)](https://www.canlii.org/en/on/laws/stat/rso-1990-c-i8/latest/rso-1990-c-i8.html) of the [Insurance Act](https://www.canlii.org/en/on/laws/stat/rso-1990-c-i8/latest/rso-1990-c-i8.html), RSO 1990, c I.8., in relation to statutory accident benefits.
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Between:
A.A.
Applicant
and
TD Insurance Meloche Monnex
Respondent
PRELIMINARY ISSUE DECISION
ADJUDICATOR:
Derek Grant
APPEARANCES:
For the Applicant:
A.A., Self-Represented
For the Respondent:
Michelle Hatzikonstadinou, Counsel
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HEARD:
By way of written submissions
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BACKGROUND
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[1] The applicant, A.A., was involved in an automobile accident on December 12, 2018, and sought benefits from the respondent, TD, pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”).
[2] TD denied A.A.’s claims. A.A. applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) to determine their entitlement to an attendant care benefit (“ACB”), caregiver benefit (“CG”), and a housekeeping (“HH”) benefit.
[3] In response, TD raised a preliminary issue. It submits that in accordance with s. 55(1) of the Schedule, A.A. is statute barred from proceeding with their application to the Tribunal because they have not attended various insurer’s examinations (“IEs”) in accordance with s. 44 of the Schedule.
# PRELIMINARY ISSUE
[4] The following preliminary issue is to be decided:
a. Is A.A. barred from proceeding with their application to dispute entitlement to attendant care benefits, housekeeping benefits and caregiver benefits, pursuant to s. 55(1)2 of the Schedule?
# RESULT
[5] A.A. is statute barred from proceeding with their application under s. 55(1)2 because they failed to attend properly scheduled s. 44 IEs.
# ANALYSIS
## Were the IE requests made in accordance with s. 44(5) of the Schedule?
[6] Section 44(1) of the Schedule governs IEs and, among other things, prescribes as follows:
a. Section 44(1) permits an insurer to require an insured person to be examined by one or more regulated health professionals to determine whether the insured is or continues to be entitled to a benefit. The section stipulates that this must not be done more often than is reasonably necessary;
b. Section 44(5) prescribes the information that must be in a proper notice of examination: the medical and any other reasons for the examination; whether the insured person’s attendance is required; the name of the person who will conduct the examination along with any relevant regulated health profession to which they belong and their titles and designations of their specialization; and if attendance is required, the date, time and location where the examination is to take place;
c. Section 44(9)(2)(i) requires an insurer to make reasonable efforts to schedule the examination for a date, time and location that are convenient to the insured person;
d. Section 44(9)(2)(iii) requires the insured person to cooperate with the examination and to submit to all reasonable examinations requested by the examiner; and
e. Where an insurer relies on s. 55(1)2. to request the Tribunal to bar the insured person from proceeding with their application for dispute resolution, the insurer must first satisfy the Tribunal that the insurer examination and the relevant notice of it complies with s. 44. If that is the case, then the onus is on the insured person to establish a reasonable explanation.
[7] I find that TD’s requests for A.A.’s attendance at its scheduled IEs complied with the requirements set out in s. 44(5) of the Schedule. Further, I find that A.A. failed to provide a reasonable explanation for their non-attendance.
[8] In explanation of benefits (“EOBs”) dated September 11, 2019, TD advised A.A. that it was arranging s. 44 IEs and required their attendance at some, while the occupational therapy assessment would be an in-home assessment. While A.A. did attend a psychological assessment on November 28, 2019, they requested that the occupational therapy and neurological assessments be rescheduled due to scheduling conflicts.
[9] Between September 2019 and January 2020, A.A. made several requests for the IEs to be rescheduled either due to their work schedule and/or conflicting medical appointments. By way of letters dated March 16, 2020, May 21, 2020, July 1, 2020 and September 17, 2020, A.A. made numerous requests for the IEs to be rescheduled, with the reason for each request being, “due to risks associated with the COVID-19 pandemic.”
[10] As a result of the requests, the IEs were initially rescheduled to May 2020. As a result of their May 21, 2020 cancellation letter, the IEs were rescheduled to July and August 2020. As a result of the July 1, 2020 cancellation letter, the IEs were once again rescheduled to September and October 2020. By way a September 17, 2020 letter, A.A. again cancelled the assessments. In a letter dated September 17, 2020, TD advised A.A. that the housekeeping, ACB and CG benefits were discontinued as a result of A.A.’s continued failure to attend the IEs. TD sent a follow-up notice in a letter dated November 10, 2020 confirming the suspension of benefits.
[11] A.A. submits that TD failed to meet its obligations as set out under s. 44 of the Schedule. They allege that the notices were deficient, therefore they are not statute barred as a result of their non-attendance. Their position is that the deficient notices are invalid, and as such, the claims should be allowed to proceed before the Tribunal. I disagree.
[12] Although A.A. is a self-represented applicant, they are not an unsophisticated party. Being highly experienced in the field of automobile accident benefits, they are very aware of how this litigation process works. They have dealt with similar matters before this Tribunal, and continued to do so, even during the course of commencing their claim
minicounsel