22-007910/AABS-PI

Licence Appeal Tribunal File Number: 22-007910/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:

[A. M.] (A minor by her legal guardian, [N. M.])

Applicant

and

Unifund Assurance Company

Respondent

PRELIMINARY ISSUE HEARING DECISION AND ORDER

ADJUDICATOR:

Tavlin Kaur

APPEARANCES:

For the Applicant:

[N.M.], Applicant’s parent and legal guardian

Fawad Siddiqui, Counsel

For the Respondent:

Monika Korona, Counsel

Heard by way of written submissions

OVERVIEW

1[AM], the minor applicant, was involved in an automobile accident on November 11, 2018 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”). The applicant was denied benefits by the respondent, Unifund Assurance Company (“Unifund”), and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

PRELIMINARY ISSUE IN DISPUTE

2The preliminary issue to be decided is whether the applicant is barred from proceeding with her claim for all of her benefits as she failed to submit to an insurer’s examination under section 44 of the Schedule?

RESULT

3The applicant is not barred from proceeding with her application.

ANALYSIS

4Section 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.

5The requirements for a Notice of Examination are set out in section 44(5) of the Schedule:

(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.

6Section 44(9)2. sets out the rules for an in-person insurer examination:

(1) 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.

7Section 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 section 44, but the insured person has not complied.

8Given 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.

9To be clear, the respondent must first prove that a Notice of Examination complies with section 44(5) of the Schedule in order for an applicant to be statute-barred from proceeding under section 55. In 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.¹

10It is well-settled that the insurer’s medical and any other reasons should include specific details about the insured’s condition forming the basis for the insurer’s decision or, alternatively, identify information about the insured’s condition that the insurer does not have but requires. The “medical and any other reasons” should be clear and sufficient enough to allow an unsophisticated person to make an informed decision on whether to attend the IE.

11Moreover, it is trite law that boilerplate medical reasons for denials of treatment plans submitted under the Schedule constitute as no reasons at all. Reasons must be meaningful in order to permit the insured person to decide whether or not to challenge the insurer’s determination.

12I note that according to Smith v. Co-operators General Insurance Co, 2002 SCC 30 (“Smith”), the refusal to pay the benefit must contain straightforward and clear language, it must be directed towards an unsophisticated person, it must outline the dispute resolution process and the relevant time limits that govern the process, and it must provide valid or other reasons for the denial. [my emphasis added]. Defining with precision an unsophisticated person is a challenging task; however, the Court’s direction in Smith clearly recognizes that greater accessibility of an insured person to the informational content of the denial notice is of paramount importance and must necessarily account for the variety of persons and backgrounds who may make claims for accident benefits.

13Accordingly, Smith requires a denial notice to be as specific and accessible as possible to ensure that there is no ambiguity in what they mean when read by an unsophisticated person. This means the notice at the very least should explain what the insured person’s medical conditions are and why for example, those conditions do not justify removal from the Minor Injury Guideline. An individual might not understand why their medical conditions are considered to be minor if they are not provided with more context. By providing this information, the insured person will have a better understanding of the insurer’s determination. It is then that the consumer protection mandate of the Schedule is achieved.

14Therefore, the notice requirements set out in section 44(5) should be strictly construed and the notice should be closely examined to ensure it complies. If the respondent’s notice does not comply with section 44(5), an insurer cannot rely on the severe remedy available in section 55 of the Schedule to bar an insured’s application from proceeding before the Tribunal.

The notices of examination (“NOE”) for the treatment plan in the amount of $2,134.10 are deficient

15On February 9, 2022, the respondent sent the applicant a letter. The letter states that “We have reviewed and compared all medical documentation that has been provided and compared it further to the Minor Injury Guideline (MIG), and determined that there is insufficient compelling evidence of a documented pre-existing injury or condition and insufficient medical documentation to persuade us that your daughter’s accident-related injuries fall outside the Minor Injury Definition.” The respondent informed the applicant that they are in the process of scheduling IEs.

16On February 14, 2022, the respondent sent a letter notifying the applicant that she is to attend the IE. There are two Notice of Examinations attached. The first NOE is for a physiatry assessment with Dr. Yuri Marchuk, M.D. The second NOE is for a psychological assessment with Dr. Douglas Saunders, psychologist. Both NOEs do not make any references to the applicant’s conditions. I note that the treatment plan is for physical rehab sessions/chiropractic treatment.

17On February 17, 2022, the applicant’s counsel sent a letter to the respondent and pointed out that medical reasons were not provided regarding why a psychological assessment was warranted. He informed the respondent that the applicant would not be attending the psychological IE. The applicant did attend the physiatry IE with Dr. Marchuk.

18On March 9, 2022, the respondent informed the applicant that an IE had been rescheduled. The NOE is for a psychological assessment with Dr. Ricardo Harris, psychologist.

19On March 24, 2022, the applicant’s counsel sent a letter to the respondent and pointed out that medical reasons were not provided regarding why a psychological assessment was warranted. He informed the respondent that the applicant would not be attending the psychological IE.

20I have reviewed the NOEs. The respondent did not mention the applicant’s conditions and nor did it provide a medical reason for the psychological IE. The respondent did not cure the subsequent IE. The respondent had an obligation to provide a medical reason for the psychological IE. The NOEs are silent as to why the psychological IE was warranted. From my review of the evidence, it does not appear that the respondent provided an explanation to the applicant’s counsel when he inquired about the psychological IE. Therefore, I find the notices to be deficient.

The treatment plan in the amount of $2,460.00 for psychological services

21The Case Conference Report and Order dated April 12, 2023 notes that the preliminary issue was also in relation to the treatment plan in the amount of $2,460.00. Neither of the parties raised this treatment plan in their submissions. Nor could I find anything in the evidence that addresses non-attendance at an IE. Therefore, I am not considering whether this treatment plan is statute-barred.

22As I have determined that the notices were deficient, it is not necessary for me embark on an analysis as to whether or not the IEs were reasonably necessary and whether the applicant had a reasonable explanation for the non-attendance.

23For the reasons above, I find that the applicant is not precluded from applying to the Tribunal.

COSTS

24Both parties are seeking costs. I find neither party has not met the test set out in Rule 19. In the absence of reasons and particulars, I am unable to award costs to either party. In any event, I find the actions of both parties are not sufficient to award costs. The test to find bad faith and unreasonable, frivolous, vexatious behaviour is very high. Neither party’s behaviour has met this threshold.

ORDER

25The applicant may proceed with her application before the Tribunal.

Footnotes

1. 1The Divisional Court in Hedley v. Aviva Insurance Company of Canada, 2019 ONSC 5318 considered the Tribunal’s reconsideration decision of B.H. v. Aviva Insurance Company, 2018 CanLII 84051 (ON LAT), which in turn applied 16-003316/AABS v. Peel Mutual Insurance Company, 2018 CanLII 39373 (ON LAT)(“T.F.”). The Court found no basis to intervene as the decision was within the reasonable range of outcomes. In T.F, Executive Chair Lamoureux repeated her comments from M.B. in paragraph 19 in relation to medical and any other reasons.