Licence Appeal Tribunal File Number: 21-000737/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:
Ravneet Kaur
Applicant
and
Intact Insurance Company
Respondent
PRELIMINARY ISSUE DECISION
ADJUDICATOR:
Theresa McGee, Vice-Chair
APPEARANCES:
For the Applicant:
Did not file submissions
For the Respondent:
Emily Wilson, Counsel
HEARD:
By way of written submissions
OVERVIEW
1Ravneet Kaur, the applicant, was involved in an automobile accident on June 13, 2019, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the “Schedule”). The applicant was denied benefits by the respondent, Intact Insurance Company, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
2The respondent has raised a preliminary issue that would dispose of the entire application. This hearing is to consider that preliminary issue, in addition to the respondent’s request for costs.
PRELIMINARY ISSUES
3The preliminary issue(s) in dispute are:
i. Is the applicant barred from proceeding to a hearing for the substantive issues because she failed to submit to insurer’s examinations (IEs) under section 44 of the Schedule?
ii. Is the respondent entitled to costs in the amount of $1,000.00?
RESULT
4The applicant is barred under s. 55 of the Schedule from proceeding with her application before the Tribunal because she failed to attend IEs that the respondent properly requested under s. 44 of the Schedule. The IEs the applicant failed to attend relate to all benefits claimed in the application. The application is accordingly dismissed.
PROCEDURAL MATTERS
5On August 25, 2022, the Tribunal released a preliminary issue decision by Adjudicator Brooks finding that the applicant had failed to attend two properly requested IEs contrary to s. 44 of the Schedule. Rather than barring the applicant at that stage, the Tribunal exercised its discretion under s. 55(2) of the Schedule to stay the application for 120 days. The Tribunal ordered the applicant to comply with the respondent’s IE requests during that 120-day period.
6On January 6, 2023, the respondent filed a motion with the Tribunal to lift the stay and dismiss the application as the applicant had failed to submit to IEs within the 120-day period ordered by Adjudicator Brooks. The respondent also sought an order for costs in the amount of $1,000.00.
7On February 6, 2023, the Tribunal convened a case conference and ordered the matter to proceed to a written hearing on the preliminary issue raised by the respondent, and added the respondent’s claim for costs. The respondent relies on the submissions it filed with its January 6, 2023 Notice of Motion in this hearing. The applicant was ordered to file written submissions no later than 21 calendar days after the case conference, or by February 27, 2023.
8On February 15, 2023, the applicant’s representative removed themselves from the record, providing the Tribunal with the applicant’s contact information. After unsuccessfully attempting to reach the applicant on March 6, 2023, the Tribunal emailed the applicant on March 7, 2023 requesting that she confirm by March 17, 2023 whether she intended to proceed with her application, either with new counsel or as a self-represented party. The applicant did not reply to the Tribunal’s correspondence, and she did not file written submissions on the preliminary issue by the February 27, 2023 deadline.
ANALYSIS
The application is barred under s. 55 of the Schedule
9In the Tribunal’s August 25, 2022 preliminary issue decision, Adjudicator Brooks found that the applicant had failed to attend two properly requested IEs. I see no reason to depart from Adjudicator Brooks’ findings of fact regarding the applicant’s non-attendance at the August 25, 2021 and September 30, 2021 psychological IEs.
10I further find that the applicant failed to comply with Adjudicator Brook’s August 25, 2022 order that she comply with the respondent’s requests for her participation in the IEs within 120 days of the order. The respondent’s submissions and evidence establish that the applicant has failed to attend five additional IEs since the date of the Tribunal’s preliminary issue decision. In total, she has failed to attend seven IEs, on December 5, 2019 (physiatry), August 25, 2021 (psychology), October 20, 2022 (general practitioner), October 26, 2022 (psychology), November 23, 2022 (psychology), December 1, 2022, (general practitioner), December 22, 2022 (psychology). The examinations pertain to all benefits claimed in the application, which include a Minor Injury Guideline determination, treatment plans for chiropractic services and psychological treatment, and a Psychological Assessment.
The respondent has not established grounds for a costs award
11The respondent seeks an order for costs in the amount of $1,000.00. Rule 19 of the Common Rules of Practice and Procedure authorizes the Tribunal to order costs. The Tribunal will award costs against a party if they are found to have engaged in conduct that is unreasonable, frivolous, vexatious, or in bad faith.
12The basis for the respondent’s costs request is that the applicant has been in non-compliance with s. 33 and s. 44 of the Schedule; she filed an application with the Tribunal despite her non-compliance with those sections; she failed to comply with a production order made by the Tribunal; she failed to comply with Adjudicator Brooks’ order that she attend IEs within 120 days; and the respondent incurred costs in arranging multiple IEs for the applicant.
13No costs award is warranted in these circumstances. The Schedule imposes consequences for non-compliance with s. 33 and s. 44. In both cases, the insurer is relieved of any obligation to pay benefits for the period of the non-compliance, and as has occurred here, the non-compliance can result in the applicant being barred from proceeding with a claim before the Tribunal. Non-compliance with these provisions does not necessarily warrant costs. The remedy is dismissal. The applicant’s non-compliance with the Tribunal’s production order and her failure to attend an IE during the stay ordered by Adjudicator Brooks have not impaired the respondent’s ability to argue this preliminary issue; in fact, they have led to the dismissal of this application, saving the respondent the cost of having to prepare for a full hearing on the merits. An insurer may voluntarily incur the additional expense of arranging multiple IEs after an insured person’s non-attendance, but nothing compels them to do so. This is not a basis for a costs award.
ORDER
14The applicant failed to attend IEs relating to all benefits claimed in this application. Under s. 55 of the Schedule, her application is barred from proceeding before the Tribunal. The application is dismissed. There is no basis for a costs award.
Released: April 20, 2023
__________________________
Theresa McGee
Vice-Chair