Licence Appeal Tribunal
Licence Appeal Tribunal File Number: 20-011886/AAB
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:
Aiyathurai Kokulanthan
Applicant
and
TD General Insurance Company
Respondent
PRELIMINARY ISSUE DECISION [AND ORDER]
ADJUDICATOR:
Tavlin Kaur
APPEARANCES:
For the Applicant:
Aiyathurai Kokulanthan, Applicant
For the Respondent:
Peggy Moore, ADR Specialist, TD
Annemarie 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 that occurred on November 22, 2019.
PRELIMINARY ISSUE IN DISPUTE
2The preliminary issue to be decided is:
- Is the applicant barred from proceeding on all issues in the application pursuant to s.55 of the Schedule for failure to attend the s. 44 insurer examinations (“IE”)?
RESULT
3The applicant is statute-barred from proceeding with issues #1 and #3 as set out in the Case Conference Report and Order dated November 15, 2022.
4The applicant may proceed with issue #2 as set out in the Case Conference Report and Order dated November 15, 2022.
Parties’ positions
5The respondent submits that the applicant has breached section 44(1) of the Schedule by failing to attend the IEs by the respondent and so he should not be allowed to continue with his application.
6The applicant did not provide any submissions.
LAW
7Section 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.
8The requirements for a Notice of Examination are set out in s. 44(5) of the Schedule:
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.
9Section 44(9)2. sets out the rules for an in-person IE:
- 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.
10Section 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.
11Given 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.
12To 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. 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. The notice must be clear enough so that the applicant can make a well-informed decision. The 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)?
13The next stage of my analysis will address the Notices of Examination relating to each of the substantive issues set out in the Case Conference Report and Order dated November 15, 2022.
Notice of Examination dated October 30, 2020
14I find that the notice did not comply with section 44(5) of the Schedule. While the notice notes the type of examination and refers to the Minor Injury Guideline (“MIG”) determination, it fails to refer at all to the applicant’s medical condition or the specific provision of the Schedule that it relies upon. There are no medical reasons for the examination mentioned. Therefore, I find this notice to be deficient.
Notice of Examination dated November 18, 2020
15I find that the notice did not comply with section 44(5) of the Schedule. The notice notes the type of examination and refers to the income replacement benefit (“IRB”), however, it did not refer at all to the applicant’s medical condition or the specific provision of the Schedule that it relied upon. Again, there are no medical reasons for examination mentioned. Therefore, I find this notice to be deficient.
Notice of Examination dated July 21, 2021
16I find that the notice complied with section 44(5) of the Schedule. The notice notes the type of examination. It refers to the MIG determination and the medical and rehabilitation benefits. The notice refers to the applicant’s medical conditions.
Notice of Examination dated October 21, 2022
17I 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 benefits in dispute. However, the notice did not refer at all to the applicant’s medical condition or the specific provision of the Schedule that it relied upon. The medical reasons for the examination are not mentioned. Therefore, I find this notice to be deficient.
18Based on the reasons noted above, I find that the July 21, 2021 notice in relation to the MIG determination and medical and rehabilitation benefits complied with s. 44(5). However, I find that none of the notices in relation to the IRB complied with section 44(5). Therefore, the applicant is not statute-barred from proceeding with the IRB issue. I now turn to whether I should grant relief to the applicant under ss. 55(2) and (3) of the Schedule with respect to the MIG determination and medical and rehabilitation benefits.
Does s. 55(2) apply to the applicant?
19Section 55(2) of the Schedule permits the Tribunal to allow an insured person to apply for dispute resolution despite being non-compliant with s. 44. Section 55(3) of the Schedule provides that the Tribunal may impose terms and conditions on any permission granted.
20I decline to exercise my discretion under these sections because the applicant has not put forward a reasonable explanation for his non-attendance at the IEs. I find this to be unacceptable. Just as the insurer has a duty in good faith to adjust the claim and provide the applicant with the medical and other reasons why the IE is required, I find that the applicant has a duty to cooperate with the respondent where the IE notice is compliant. Failing to attend the rescheduled IEs frustrated the respondent’s ability to assess the applicant.
ORDER
21For the reasons above, I find that the applicant may proceed before the Tribunal with his claim for the IRB (issue #2) to the videoconference hearing scheduled for April 11, 2023.
22I find that the applicant is statute-barred from proceeding with the MIG medical and rehabilitation benefits (issues #1 and #3) because he failed to participate in each in-person IEs that were reasonably necessary, and for which there was a Schedule-compliant notice.
23Except for the provisions contained is this order, all previous orders made by the Tribunal remain in full force and effect.
Released: February 2, 2023
___________________________
Tavlin Kaur
Adjudicator