[L.D.] v. Gore Mutual Insurance Company, 2023 CanLII 74649

18-011978/AABS

Licence Appeal Tribunal File Number: 18-011978/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:

[L.D.]

Applicant

and

Gore Mutual Insurance Company

Respondent

DECISION

ADJUDICATOR:

Deborah Neilson

APPEARANCES:

For the Applicant:

[LD], Applicant

Peter Murray, Counsel

Eric Winkworth, Counsel

For the Respondent:

Arthur R. Camporese, Counsel

For Mike McEvoy:

Ari Krajden, Counsel

For Colin Miller:

Paul Fruitman, Counsel

For Ken Jones:

Lonny Rosen, Counsel

Court Reporter:

Captioning:

Sharon Kemp and Maureen Biscak

Abby Estes

HEARD: by Videoconference:

January 23 to 27, 2023

OVERVIEW

1The applicant, [LD], was involved in a pedestrian knockdown automobile accident on November 24, 2015, from which she sustained a rib fracture and a ruptured spleen requiring a splenectomy. She sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the ''Schedule'') from the respondent, Gore Mutual Insurance Company. The respondent paid the applicant income replacement benefits (“IRBs”) for a period of time and then denied them because the applicant failed to attend insurer’s examinations. The applicant submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”) for resolution of the dispute.

2The applicant initially sought entitlement to IRBs, a determination that she sustained a catastrophic impairment and an award under s. 10 of Regulation 664 (“Reg. 664 award”). The respondent alleged that the applicant was barred from applying to the Tribunal for benefits and the Reg. 664 award because the applicant failed to attend insurer’s examinations that were requested by the respondent under s.44 of the Schedule.

3The applicant eventually attended one of the insurer’s examinations (“IEs”). As a result, the respondent reinstated IRBs and accepted that the applicant sustained a catastrophic impairment. The respondent paid up some of the IRBs withheld, but did not pay up IRBs from October 8, 2018 to May 30, 2021. The applicant withdrew her claim for catastrophic impairment in this file after I chaired a hearing in Tribunal file 21-000394/AABS on the issue of entitlement to a Reg. 664 award.

4The applicant claims entitlement to the IRBs withheld and a Reg 664 award. She alleges that the respondent unreasonably delayed paying her IRBs by failing to accommodate her disabilities under the Human Rights Code, RSO 1990, c H.19 (“Human Rights Code”) and delayed in making a determination that she was entitled to IRBs and was catastrophically impaired by not scheduling insurer’s examinations (“IEs”) in accordance with s.44 and s.45 of the Schedule. The applicant made the same allegation in 21-000394/AABS with respect to catastrophic impairment and treatment plans. The respondent submits that any delays were caused by the applicant’s refusal without reasonable excuse to attend IEs properly requested in accordance with the Schedule. The respondent also submits that the issue of whether the respondent’s requests for the applicant to attend IRB and catastrophic impairment IEs were properly made was determined by the Tribunal in a preliminary issue decision that, for a reason unknown to the respondent, the Tribunal cancelled.

5I had ordered a stay of the decision in 21-000394/AABS pending the hearing in this matter because the issues and evidence in this matter are essentially the same as in 21-000394/AABS. The parties agreed that the evidence from both this hearing and 21-000394/AABS is applicable to both files.

ISSUES

6The issues I must determine are not as set out in the case conference order as the parties have since resolved some of the issues. The issues are agreed to be as follows:

1. Is the applicant entitled to an IRB of $400.00 per week from October 8, 2018 to May 30, 2021?

2. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant on IRBs from November 24, 2017?

3. Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

7I find that the applicant is not entitled to the IRBs withheld, pending her attendance at the requested IEs. The respondent did not unreasonably delay the payment of any benefits and the applicant’s claim is dismissed.

PROCEDURAL ISSUES

8The applicant raised four procedural issues, three by way of the following motions:

a. For the Tribunal to bring a case to the Divisional Court seeking contempt orders against Gina Greco, President of AGS Rehab Solutions Inc. (“AGS”), and Mike McEvoy, an officer with Rapid Interactive Disability Management (“RIDM”).

b. For the respondent to produce a witness with knowledge of the file or for an adverse inference to be drawn from its failure to do so.

c. To adjourn the hearing.

9The fourth procedural issue was whether an email to Assessmed should be admitted as an exhibit.

10The motions were dismissed, and the email was admitted as an exhibit. There were also a number of other motions for stating a case to the Divisional Court for contempt orders, for substituted service of summonses, and for quashing summonses. Those motions were all withdrawn.

11The respondent raised the following procedural issues:

a. Whether the matter should be stayed pending issuance of the decision in 17-002762/AABS on attendant care?

b. Whether correspondence on attendant care IEs be admitted as exhibits?

c. Whether this matter was previously determined?

12This matter was not stayed, the attendant care correspondence was admitted as exhibits and the preliminary issue decision previously released in this matter was declared by the Tribunal to be a nullity.

The requests for contempt orders were dismissed

The request for a contempt order against Greco was dismissed

13The applicant asked the Tribunal to apply to the Divisional Court for a contempt order against Ms. Greco on the basis that she was served a summons that required her to produce a number of documents to the applicant’s counsel ten days prior to the hearing and she failed to do so. The respondent opposed the applicant’s motion and submitted that there was no authority for the applicant to issue a summons for productions. The applicant’s request for the Tribunal to seek an order of contempt from the Divisional Court against Ms. Greco was denied for the following reasons.

14Under s.13 of the Statutory Powers Procedure Act, RSO 1990, c. S.22 (“SPPA”) if any person duly summoned as a witness at a hearing fails to attend the hearing or refuses to produce a document in his or her power that the Tribunal requires production of without a lawful excuse, the Tribunal may state a case to the Divisional Court for a contempt Order.

15Ms. Greco appeared at the hearing and advised that the summons she was served with provided incorrect reasons for the summons, chiefly stating that another person was the CEO of AGS. She contacted the applicant’s counsel to advise of the error. The applicant submitted that it emailed an amended summons to Ms. Greco on January 10, 2023, or six days after Ms. Greco first contacted him to advise of the error. Accordingly, Ms. Greco was not served with a summons that provides reasons pertaining to why she has relevant information for the hearing.

16Included with the summons served on Ms. Greco and the amended summons sent by email was a schedule of documents that listed a number of productions Ms. Greco was purportedly required to produce to the applicant including contracts between assessors and AGS and the respondent and AGS. The Tribunal questioned the appropriateness of the schedule that accompanied the draft summons when it was submitted by the applicant to the Tribunal on December 12, 2022. Similar schedules accompanied about nine other summonses submitted to the Tribunal by the applicant with Ms. Greco’s summons. Despite receiving an explanation from the applicant, the summons issued by the Tribunal and emailed to the applicant on December 30, 2022 and January 4, 2023 did not include the schedules of documents. The Tribunal apparently advised the applicant by email that the applicant was allowed to serve the schedules submitted for three summonses issued for three officers of RIDM at a later date. However, no such approval was provided for the summons for Ms. Greco or the other witnesses listed in the applicant’s witness list.

17The applicant provided the Tribunal with a copy of the Tribunal’s March 24, 2020 order, in which the Tribunal ordered that the respondent was not required to produce copies of contracts between the respondent and the IE assessment companies. Accordingly, I find that the Tribunal did not approve of the list of documents set out in the schedules that were purported to be attached to the summons against Ms. Greco or any of the other summonses issued by the Tribunal on December 30, 2022, January 4 and 10, 2023 to IE assessors and assessment companies.

18The applicant submitted her authority to ask for such a broad summons rather than bringing a motion to seek productions was to streamline the process by having Ms. Greco provide documents that the respondent was ordered to produce and did not. The applicant submitted that she was trying to avoid a document dump that would necessitate an adjournment of the hearing. It was then open to the assessment company to appear at the Tribunal and provide reasons for why it should not have to produce documents.

19Despite the applicant’s submission that it was streamlining the production process, I disagree. I find that the applicant’s proposed method for seeking production of documents would promote procedural unfairness and delays in the start of hearings. Getting a summons issued for the purpose of obtaining productions bypasses the requirement to provide evidence of the relevancy of the productions and does not allow the opposing party to make submissions on relevancy. At the very least, it means that the time slated for the hearing has to be utilized to hear evidence and submissions on the relevancy of the documents listed in the disputed summons for productions.

20The procedure in place for obtaining the production of documents is to ask the other party for a copy of the documents in the application or response, and obtain a production order at the case conference for any outstanding documents and for those documents the parties cannot agree to produce prior to the case conference. If the producing party does not provide the documents or proof of best efforts by the deadline ordered, then the requesting party has recourse to bring a motion for enforcement of the order. If the producing party has made best efforts to obtain documents from a non-party, the requesting party may appeal to the Tribunal on motion to use its summons power to obtain the documents.

21The applicant submitted that the Tribunal will not hear motions for productions from non-parties where a party has made best efforts to obtain the productions. However, no case law was provided by the applicant in support of this submission. The only decision I am aware of that determined the Tribunal does not have summons power for non-parties is M.S. v. Desjardins General Insurance Group, 2019 CanLII 94054 (ON LAT). That decision is distinguishable because it dealt with summonses issued for a written hearing.

22There was no evidence before me that the applicant ever asked the respondent to produce AGS’ file or its assessors’ files pertaining to the applicant. Nor was there any evidence that the applicant ever asked the respondent to produce the files from any of the other assessment companies or their assessors involved in scheduling IEs of the applicant. The applicant submitted that the Tribunal’s Order in 21-000394/AABS dated February 16, 2022 for Gore Mutual to produce copies of its communications with the assessment companies is evidence that she asked the respondent to produce the assessment companies’ files, including communications with their assessors. However, the Order does not state that. The Order only speaks to production of the respondent’s accident benefit file including communications with non-parties that are located in the respondent’s file and the respondent’s communications between it and each IE assessor and assessment clinic/company.

23The applicant had plenty of opportunities to ask the respondent to produce the assessment companies’ and assessors’ files before the last case conference in this matter in July 2022, and to address any issues arising from that request at the case conference or when she filed her motion on December 15, 2022. Accordingly, I agree with the respondent that it is an abuse of process to use the summons power of the Tribunal as a means of obtaining the production of documents where a party could easily have asked the opposing party to make efforts to obtain them and, if there were objections, to seek a production order at the case conference or by motion well before the hearing.

24A request for the respondent to produce its file is not the same as requesting the respondent to produce the assessment companies’ and the assessors’ files. Such production orders are usually accompanied by a condition precedent such as the insurer’s receipt of the insured person’s authorisation for release of the files to the insurer. Such an order was absent.

25The Tribunal’s February 16, 2022 Order states that it declined to order the production of copies of contracts between the respondent and various assessment companies. I agree with the respondent that it is an abuse of process for the applicant to obtain summonses that include the production of documents such as the contracts between the respondent, the IE assessors and the assessment companies that the Tribunal previously declined to order production of. The applicant cannot get through the backdoor what she cannot get through the front door and such use of summonses is a practice to be discouraged.

26There is no denial of procedural fairness to the applicant in this case. The circumstances were foreseeable and routine. The Tribunal held two case conferences, gave notice of a hearing date, and granted a lengthy adjournment. Despite having several months’ notice of the January 2023 hearing date, the applicant had plenty of opportunities for obtaining a copy of the communications between AGS and its IE assessors. Any prejudice or disadvantage flowing to the applicant from these events is not because the Tribunal failed to provide a fair process for resolving the dispute. For these reasons, the applicant’s motion as against Ms. Greco was dismissed.

The request for a contempt order against Mike McEvoy was dismissed

27The applicant sought a contempt order against Mr. McEvoy on the basis that when her process server attempted to reach him by email, Mr. McEvoy responded saying he was out of the country, he would not be returning until March 25, 2023 and he would not accept service from the applicant’s counsel for a Superior Court of Justice matter. Mr. McEvoy’s counsel advised that it was not until he was served with a copy of the motion that Mr. McEvoy had any knowledge that the process server was trying to serve him a summons to testify in this hearing. No evidence was before me to contradict that. Accordingly, without any evidence that Mr. McEvoy showed any intention of not appearing at the hearing once properly served, I was unable to find that he demonstrated any contempt for the Tribunal. For these reasons the applicant’s motion was dismissed.

The request for an adverse inference to be drawn and a contempt Order against Ken Jones is dismissed

28The applicant filed a motion at the outset of the hearing asking that an adverse inference be drawn against the respondent or that the respondent produce a knowledgeable witness from Gore Mutual to be cross-examined. In support of her motion, the applicant submitted that a motion Order dated January 16, 2023 had been issued by the Tribunal requiring the respondent to let the applicant know when Mr. Ken Jones would be available for service of a summons at the respondent’s office. Mr. Jones is an adjuster with the respondent. The date the applicant was advised that Mr. Jones would be in the office was January 26, 2023, or four days after the hearing started.

29The respondent objected on the basis that the applicant was calling Mr. Jones as its own witness, not for cross-examination, and there are no orders listing the witnesses that the applicant was going to call or that the respondent was required to produce for the hearing. It submitted that, since Mr. Jones was the applicant’s witness and there were no orders that the respondent produce him for cross-examination, no adverse inference should be drawn against the respondent. I agree with the respondent that Mr. Jones was summonsed as the applicant’s witness and not for the purpose of cross-examination for the following reasons.

30The applicant served and filed a list of witnesses she intended to call that included Mr. Jones. However, nowhere on the list does the applicant state that she was calling him for the purposes of cross-examination.

31The applicant submitted that the respondent was aware that she was summonsing Mr. Jones to the hearing for cross-examination. She relied on e-mail correspondence from the applicant’s counsel advising that the applicant wanted Mr. Jones to appear for the purposes of cross-examination. The email correspondence was filed with the December 15, 2022 notice of motion for the respondent to assist the applicant in serving the summons on Mr. Jones.

32I find that the respondent had knowledge in December 2022 that the applicant wanted to cross-examine somebody from the respondent’s company with respect to the matters in issue because of the emails. However, there is no indication in the motion Order of January 16, 2023 that the applicant sought to have Mr. Jones available for cross-examination, nor does the request for relief in the December 15,2022 notice of motion mention the applicant sought to cross-examine any of the respondent’s representatives, despite the evidence that was attached to the motion. Nor was there any indication in the applicant’s witness list that the applicant sought to cross-examine a representative of the respondent. That allegation was only made before me at the hearing. There was no mention in the applicant’s January 17, 2023 motion materials that were before me that her intent was to have Mr. Jones present for cross-examination.

33If the applicant wanted the respondent to produce a representative for cross-examination, this ought to have been addressed at the case conference that was conducted in June 2022 and not for the first time at the hearing. At the very least, it should have been made clear in the applicant's notice of motion filed December 15, 2022. However, it was not. Nor was there any mention in the Tribunal’s January 16, 2023 motion Order that the applicant intended to serve Mr. Jones with a summons for the purpose of having him attend the hearing for cross-examination. For these reasons, I reserved on whether I would draw an adverse inference until such time as I heard all the evidence and Mr. Jones was served with a summons.

34My conclusion after hearing all of the evidence is that there is no basis for drawing an adverse inference against the respondent for failure to call a representative. Although the respondent objected to filing its adjuster’s notes as an exhibit, I allowed the applicant to do so and, accordingly, I had documentation of the respondent’s internal claims adjustment process in addition to the respondent’s correspondence with the applicant that allow me to determine the issues in dispute. This means the testimony of the respondent’s representative was not necessary.

35In any event, Mr. Jones attended at the hearing and testified. The applicant submitted that she had a right to cross-examine him. I disagreed for the reasons set out above. I determined that Mr. Jones was called by the applicant as her witness and not for the purpose of cross-examination. Further, no submissions were made by the applicant that she was entitled to cross-examine Mr. Jones on the basis that he demonstrated he was a hostile witness. Nor did Mr. Jones demonstrate that he was a hostile witness. Accordingly, the applicant’s motion was dismissed.

The request for a hearing adjournment is dismissed

36During the hearing, the applicant asked that the hearing be adjourned on the basis the respondent did not revise its pleadings to indicate that it accepted the applicant meets the test for entitlement to IRBs, but continued to withhold benefits for the period of time the applicant failed to attend at IEs.

37I denied the request for an adjournment because the applicant had knowledge since 2018 from the respondent’s letter of October 12, 2018 that IRBs were denied for failure to attend IEs. Further, the applicant knew from the adjuster’s log notes in her possession since February 2022 that the respondent accepted that she continued to be entitled to IRBs but was not paying IRBs for the disputed period on the basis the applicant had no reasonable excuse for failing to attend the IEs. Given the applicant had the knowledge of what the issues were well ahead of the hearing, I find there was no prejudice to the applicant in not having amended pleadings that required an adjournment of the hearing. For these reasons the request for an adjournment was denied.

The application is not stayed pending issuance of the decision in 17-002762/AABS on attendant care

38The applicant also filed an application in 2017 in Tribunal file 17-002762/AABS disputing the amount of attendant care she was paid up to the 104 week mark for non-catastrophic claimants and claiming attendant care benefits beyond the 104 week mark. That application was scheduled for a hearing in April 2023. The respondent asked that this matter be stayed and heard one immediately after the other under s.9.1 (1) (c) of the Statutory Powers Procedure Act, RSO 1990, c S.22 (“SPPA”) pending the hearing of 17-002762/AABS. I declined to stay this matter for the following reasons.

39At the time of hearing the parties’ submissions, there was no issue in 17-002762/AABS of a Reg. 664 award for an unreasonable delay in the payment of attendant care benefits. The parties both advised that the applicant brought a motion to add the issue of a Reg. 664 claim to 17-002762/AABS. That motion decision was pending and the issue has since been added to the companion file. Even if the Reg. 664 award is added to 17-002762/AABS, the reasons alleged for delay and the evidence that will be filed relevant to the Reg. 664 award in that matter will be different than this matter. Although there may be some overlap, unlike 17-002762, the evidence and findings of fact for the Reg. 664 award are predominantly the same for this matter and 21-000934/AABS because the IEs for the issues in dispute in both files were scheduled together. The IEs for determining entitlement to attendant care were not scheduled with the IEs in this matter. For these reasons I dismissed the respondent’s request for a stay.

The objections to exhibits were dismissed

Email to AssessMed admitted as an exhibit

40The respondent sought to have an email from Ken Jones to Sarah Rahim of AssessMed filed as an exhibit. The applicant objected because the email was not produced to the applicant any earlier than January 25, 2023 and was in the power and control of Mr. Jones. However, the parties received the document from Mr. Miller’s counsel pursuant to a summons served by the applicant’s counsel on Mr. Miller.

41The applicant submits that the email is a personal attack on her counsel’s character. The applicant believes it is one email taken out of context of a number of emails that the applicant submits were withheld by Gore. Therefore the truth of its content are challenged.

42I allowed the document to be filed as an exhibit as it was produced by a non-party in response to a summons served by the applicant, it is relevant to the issues in dispute, the applicant had an opportunity to put it to the witnesses and the applicant was advised that he could make submissions on the weight to be given to the document. Accordingly, there was no procedural unfairness to the applicant in allowing an exhibit to be made of a document she sought production of by way of summons.

Correspondence on attendant care IEs admitted as exhibits

43The respondent objected to the applicant filing any correspondence about the applicant’s attendant care benefit or IEs scheduled to address attendant care benefits. The respondent submitted that all documents pertaining to attendant care adjusting should not be submitted as they are not relevant. The applicant has another application before the Tribunal in 17-002762/AABS for which a hearing is scheduled to take place in April 2023 that deals with attendant care benefits. The applicant’s motion to add the issue of a Reg. 664 claim to 17-002762/AABS was pending at the time I heard submissions from the parties and the issue was subsequently added to that matter.

44The applicant relied on 17-006757 v Aviva Insurance Canada, 2018 CanLII 81949 (ON LAT) (17-006757 v Aviva). In that case, the insurer submitted that because it had paid up the benefits that were initially in issue, no benefits were owed at the time of the hearing and, accordingly, there was no amount upon which the Tribunal could make a special award. The Tribunal disagreed and determined that special awards continue to be based on the facts of the case, not simply the facts surrounding the particular issue in dispute, but the conduct of the insurer throughout the entire adjustment of the claim. I agree with the Tribunal’s reasoning and conclusions in that case. However, 17-006757 v Aviva is distinguishable because there were no other companion applications dealing with other issues for which the insured was seeking an award, unlike the situation before me.

45The applicant submits that a finding that the insurer’s actions were unreasonable is a finding of fact based on the Tribunal’s review of the evidence. She relies on M.M. v Aviva Insurance Company, 2020 CanLII 37673 (ON LAT) (M.M. v Aviva). M.M. submitted as evidence several letters from her counsel to Aviva, some of which were produced in a 2019 decision involving the same parties and the same accident. All of these letters raised M.M.’s concerns over Aviva’s denials of the first two disputed treatment plans and Aviva’s non-compliance with s. 38(8) of the Schedule. The Tribunal determined in that case that, while there may be overlap between certain correspondences referred to by M.M. in the 2019 decision as in the 2020 decision, this does not automatically lead to the conclusion, as suggested by Aviva, that issue estoppel or res judicata applies. Although there was an overlap in evidence, the 2019 decision addressed different issues than those raised in M.M. v Aviva. I agree with this determination.

46I already have a number of letters about attendant care IEs before me as they were made exhibits in 21-000394/AABS. Further, the documents were served and filed within the timelines ordered. For this reason and because the issue of a special award with respect to the clam for attendant care was not an issue in 17-002762/AABS at the time of the hearing before me, I allowed the documents to be made exhibits subject to the weight to be given to them.

The issue was previously determined but was declared a nullity by the Tribunal

47The respondent submitted that a written preliminary issue hearing proceeded in in this matter on whether the applicant was barred under s.55(1)2 of the Schedule from proceeding with her claim for catastrophic impairment and IRBs because she failed to attend insurer’s examinations (“IE”s) scheduled under s.44 of the Schedule. According to the case conference Order dated March 24, 2020, the preliminary issue hearing was going to determine whether the applicant was also barred from claiming a Reg. 664 award for the same reasons. The preliminary issue decision was released on April 29, 2022. On June 2, 2022, an amended preliminary issue decision was released that stated the April 29, 2022 decision was cancelled. The reason given was that the applicant contacted the Tribunal to advise the preliminary issues had resolved prior to the hearing and that the respondent withdrew the preliminary issue. The respondent, however, submitted that it never contacted the Tribunal to withdraw the preliminary issue. Nor could I locate any correspondence from the respondent advising that it withdrew the preliminary issue.

48On May 24, 2022, the preliminary issue hearing Adjudicator advised the parties that the applicant had written to the Tribunal on April 29th, 2022 advising that the respondent had found she was entitled to post-104 week IRB's and had determined she was catastrophically impaired. The applicant asked the Tribunal to clarify what additional assessments were needed to occur. The hearing Adjudicator responded that, in light of the applicant‘s submissions, the preliminary decision was moot as all issues in dispute were conceded by the respondent. As such, the hearing adjudicator determined it would be inappropriate for the applicant to be required to attend any further IEs related to the preliminary issue.

49According to the evidence and submissions before me, the respondent did not concede all issues. The respondent did not concede that the applicant was entitled to IRBs for the period of time she failed to attend IEs from October 8, 2018 to May 30, 2021. Nor did the respondent concede on the applicant’s claim for a Reg. 664 award. It is not clear whether the applicant advised the Tribunal that there were still issues in dispute in her April 29, 2022 letter. I was unable to locate any correspondence from either party advising the hearing Adjudicator of her error. Having said that, the June 17, 2022 case conference Order confirmed that IRBs were still in issue from the period from November 24, 2017 to date and ongoing, less amounts paid.

50As the preliminary issue decision was declared a nullity and there is nothing on file to indicate the respondent objected, other than at the hearing in 21-000934, there is little I can do at this time. I determined in 21-000934 that there was no abuse of process by proceeding in that matter as the preliminary issue decision was declared a nullity.

51The preliminary issue hearing Adjudicator would have determined whether the respondent complied with the notice and scheduling requirements in setting up the IRB IEs, whether they were scheduled as often as reasonably necessary and whether the applicant complied with her obligation to attend the IEs under s.44 of the Schedule. I must determine these issues in order to find whether the applicant is entitled to IRBs from October 8, 2018 to May 30, 2021 and whether the applicant’s refusal to attend the IEs was the reason for the insurer’s delay in accepting the applicant was entitled to IRBs. Because the preliminary issue hearing was cancelled by the Tribunal, this means that there is, for all intents and purposes, no preliminary issue decision on whether the applicant was barred under s.55(1) of the Schedule from pursuing her claim for IRBs and a Reg. 664 award for failure to attend IEs. Since the decision was a nullity, there was no possibility or potential for me to make adverse findings of fact from that determined from the preliminary issue hearing. Accordingly, I am unable to find that the matter was previously determined.

ANALYSIS

52If I find that the respondent unreasonably withheld or delayed payments, I may, in addition to awarding the benefits and interest to which the applicant is entitled under the Schedule, award a lump sum of up to 50 percent of the amount to which the applicant was entitled at the time of the award together with interest on all amounts then owing to her (“Reg. 664 award”).

53The issue of whether the respondent unreasonably withheld or delayed payment of IRBs from 2018 to 2021 is dependant upon why it took 4 years for the IEs to be completed. The respondent submits that it is because the applicant failed to attend IEs properly scheduled during that period of time without a reasonable excuse. The applicant submitted it is because the respondent did not properly schedule the IEs or notify her of them.

The applicant failed to attend the IEs without reasonable excuse

54Under s. 44 of the Schedule, the applicant is required to attend at IEs if the following conditions are met:

a. IEs are to be conducted not more often than is reasonably necessary;

b. IEs are to be conducted by regulated health professionals or people who have expertise in vocational rehabilitation.

c. The IEs are to be scheduled for a day, time, and place convenient to the applicant;

d. The respondent is required to provide notice of the IE to the applicant five or more business days before the IE.

e. The IE notice is required to provide the applicant with the medical and any other reasons for the IE, whether she was required to attend and if so, the day, time and location of the IE and the name of the IE assessors, their regulated health profession, and their titles and designations indicating their specialization, if any.

55As noted in 16-003144 v Cumis General Insurance Company, 2017 CanLII 22315 (ON LAT) (16-003144 v Cumis) IEs are an invasive procedure, but must be balanced with the respondent’s right to assess an insured person who has put their medical condition into issue. Because IEs are such an invasion on a person’s privacy, historically the case law dealing with a failure to attend IEs has applied the conditions set out under s.44 fairly strictly against an insurer. Where the notice requirements have not been complied with or the number and type of IEs is excessive, there was no requirement for an insured person to attend IEs. I agree with this reasoning.

56The respondent paid the applicant IRBs following the accident. Under s.37(1) the Schedule, if the respondent wanted to determine if the applicant was still entitled to IRBs, the respondent was entitled to notify the applicant that it required her to undergo an IE. The choice of IE assessor is the respondent’s as set out in 16-003144 v Cumis. See also paragraph 11 of the Tribunal’s reconsideration decision in R.J. v Economical Insurance Company, 2020 CanLII 80296 (ON LAT). Under s. 37(2)(d) and s. 37(7) of the Schedule, if the applicant failed or refused to attend at an IE that was properly requested by the respondent, the respondent was entitled to make a determination that the applicant was no longer entitled to IRBs.

57Once the applicant attended the IEs and the respondent reinstated her IRBs, under s. 37(8)(b)(ii) of the Schedule, the respondent was required to pay all IRBs withheld during the period of time the applicant failed to attend the IEs if she provided a reasonable explanation for her nonattendance within 10 business days after her failure or refusal to comply with section 44(9) of the Schedule. A reasonable excuse for failing to attend an IE is if the notice requirements have not been complied with or the number and type of IEs is excessive.

58The respondent submits that since 2017 it has tried to it set up a number of insurer’s examinations under s.44 and later under s.45 of the Schedule (“IEs” ) to determine if the applicant was still entitled to IRBs and, from 2018 to 2021, to also determine whether she sustained a catastrophic impairment. However, the applicant refused to attend the IEs without any reasonable excuse. The respondent scheduled the assessments through five different assessment companies as follows:

Assessment company

Time period

Rapid Interactive Disability Management (“RIDM”)

January 2016 to December 2017

Makos Health Associates Assessments (“Makos”)

October 2017 to January 2018

AGS Rehab Solutions (“AGS”)

May 2018 to August 2018

Encompass Medical (“Encompass”)

August 2018 to October 2018

AssessMed

April 2021 to December 2021

59The applicant did not attend the IEs until July 14, 2021, at which time she attended a psychiatric IE with Dr. Sivasubramanian, resulting in the respondent reinstating IRBs and accepting that the applicant is catastrophically impaired. The applicant submits that she had a reasonable excuse, which was that the respondent failed to schedule only reasonably required IEs, failed to schedule the IEs in compliance with the Human Rights Code or provide notice of the IEs that complied with the Schedule. If the applicant is correct, then the respondent is required to pay her the IRBs withheld from October 8, 2018 to May 30, 2021.

60According to the applicant’s submissions and her counsel’s correspondence filed as exhibits, in order to determine whether the applicant is entitled to an award and IRBs for the disputed period, I must determine the following:

a. Did the respondent provide proper notice of the IEs?

b. Did the respondent request more assessments than were reasonably required?

c. Was the respondent prohibited from using assessment companies to schedule IEs?

d. Was the respondent entitled to ask the applicant to attend IEs to assess entitlement to IRBs once her IRBs were terminated for failure to attend IEs?

e. Did the respondent accommodate the applicant under the Human Rights Code with respect to scheduling the IEs?

61I find that some of the IE notices complied with the Schedule and, therefore, on a cumulative basis the applicant was provided with proper notice under the Schedule for the medical and other reasons why the respondent asked for the IE assessments. I find that the respondent did not violate any of the applicant’s human rights with respect to the assessments it requested and that the assessments it sought were reasonably required. The respondent was entitled to use an assessment company to schedule the IEs and it was not required to reinstate IRBs before the applicant attended at the IEs. I find that the applicant failed to provide the respondent with a reasonable excuse within 10 days of her failure to attend the IEs scheduled to determine her entitlement to IRBS between October 8, 2018 to May 30, 2021. Accordingly, she is not entitled to IRBs for that period of time.

The cumulative IE notices provided medical and other reasons

62The applicant submitted that the IE notices did not contain medical or any other reasons for the assessments. According to the reconsideration decision of M.B. v. Aviva Insurance Canada, 2017 CanLII 87160 (ON LAT) (M.B. v Aviva) an insurer satisfies its obligation to provide its medical reasons by explaining its decision with reference to the insured’s medical condition. The medical reasons should, at the very least, 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 to either accept or dispute the decision at issue.

63The respondent provided the applicant with IE notice consisting of a letter dated March 13, 2017 with a number of enclosed forms titled “examination notice” listing the name and specialty of each assessor, the address, date and time of the assessment, the contact information and the reasons for the assessment. The combined notice requested that the applicant attend at a number of IEs for the purpose of determining her entitlement to ongoing IRBs and to a treatment plan. The reasons given for the IEs were because it had been six months since the applicant’s last assessment, she had undergone a number of different treatments since then including massage and physiotherapy, and the respondent required the IEs as a second opinion to determine if she continued to meet the test for IRBs and whether further treatment was reasonably required as a result of the accident. This is information unique to the applicant. I find that the notice provided specific details about the applicant’s condition by referring to her massage and physiotherapy treatment, the benefits and determination to which the IEs pertained to and the sections of the Schedule the respondent relied on. It was not just a mere conclusion but a need for more information on the applicant’s status given the treatment she had received. Therefore, it complied with the notice requirements to provide medical reasons for why the respondent wanted to assess the applicant’s entitlement to IRBs and gave the applicant enough information to make an informed decision on whether or not to attend the IEs.

64The applicant did not attend at those assessments allegedly because she did not know what benefits were being assessed. I disagree given that the respondent’s letter of March 13, 2017 and the enclosed documents state it was for IRBs and medical and rehabilitation benefits for an OCF-18 for $3,977.60. As a result the respondent denied her entitlement to IRBs under cover of letter dated November 24, 2017 for failure to attend the IEs without reasonable excuse.

65The applicant submitted that the respondent’s notice letters to the applicant in October and November 2017 did not comply with the Schedule because the legal test for post-104 week IRBs had not yet changed, yet the notices advised the test had already changed. Although notices of IEs are required to contain certain information, I was provided with no case law that the reasons for requesting IEs were required to be correct. In any event, according to the respondent’s October 17, 2017 notice, the last assessment was scheduled for December 13, 2017 or after the two year mark. Therefore, since the two year mark was fast approaching and the IE reports would not be released until after the two year mark, it was reasonable at that time for the respondent to seek a determination of whether the applicant met the post-104 week mark. The brief explanation of how the IRB test changes at 104 weeks post-accident plus the medical reasons given in the March 13, 2017 notice provided enough information for the applicant to make an informed decision about whether she wished to pursue her claims and attend the IEs, or not.

66I find that given that the applicant was already provided with medical and other reasons in the March 13, 2017 IE notice, the applicant had enough information to determine whether or not to comply with the June 13, 2018 notice to attend at the IEs to determine her entitlement to IRBS. The June 13, 2018 notice commented on the post-104 week IRB test and with a number, but not all, of the assessors, stated the need to determine if the applicant sustained a catastrophic impairment. For example, the respondent advised it needed to assess the applicant’s mental and behavioural status in relation to the accident for a psychiatric IE, the applicant’s neurologic sequelae status in relation to the accident for a neurological IE assessment, or her residual musculoskeletal injuries and impairments for ongoing entitlement to IRBs for an orthopedic assessment. None of these reasons refer to specific diagnosis made by a particular health practitioner, but broadly refer to injuries and impairments particular to the applicant and, together with the March, October and November 2017 notices, provided enough information for the applicant to make an informed decision about whether she wished to pursue her IRB claims and attend the IEs or not. If there was any question as to the purpose or the reasons for the number of assessments, those were addressed by Mr. Jones’ letter dated June 27, 2018.

67The respondent sent notices to the applicant dated September 13, 2018 for assessments at Encompass that contain similar wording as the June 13, 2018 notices and included additional information about requiring each specific assessment in the context of that particular type of impairment such as a psychiatric impairment for a psychiatric assessment or to provide corollary information on her function in her home to provide to her mental and behavioural assessors for the catastrophic impairment assessment for the in-home occupational therapy assessment.

68The respondent rescheduled a couple of the IE assessments with Encompass and provided the applicant with new notices for those assessments dated September 24, 2018. Those notices were similar to the September 13, 2018 notices and, together with the reasons given in the previous notices, complied with the Schedule. The applicant failed to attend those assessments.

69The applicant submitted that the October 1, 2018 notice for an assessment with Dr. Zeeshan Waseem, physiatrist, was deficient because the notice said it was for the purposes of IRB's and catastrophic impairment, but Miss Sampaio testified that it was only going to be for catastrophic impairment. I am unable to find the notice was deficient because of testimony provided years later. The correspondence between Encompass and the respondent and the respondent’s internal emails from August 31, 2018 to September 10, 2018 show that the respondent’s intention was to have an orthopaedic surgeon conduct both the IRB and catastrophic impairment IE, but that Encompass retained a physiatrist instead. Regardless of what the internal emails stated, the sufficiency of an IE notice is apparent on its face and not as a result of internal documents that are not prepared for the purpose of informing an insured person of the purpose or details of an IE.

70The respondent started setting up IEs with Encompass again in February 2019, but, according to the testimony of Ms. Sampaio, those notices never went out because the applicant’s counsel advised on March 13, 2019 that the applicant would only attend IEs arranged through and directly with regulated health care practitioners without the IE assessment clinic or agency involved in the process. Further, the applicant would only attend IEs by a psychologist or physician with the assistance of an occupational therapist.

71Another reason the applicant objected to the notices appears to be that the respondent did not just accept the medical documents and reports obtained by the applicant as evidence that she meets the test for post-104 week IRBs and catastrophic impairment determination. For example, the law clerk wrote to the respondent on July 3, 2018 and sought the medical reasons for why the respondent did not accept those opinions and findings. It is clear from the March 13, 2017 IE notice that the respondent questioned how the applicant’s assessors determined she was still disabled from her accident injuries when Dr. Czok and Dr. Walsh have given a prognosis of recovery in up to 12 months. There is no requirement in the Schedule to provide the type of medical reasons the law clerk was seeking. The information provided in the cumulative IE notices satisfied the respondent’s obligation and if there was any question, the respondent’s responses to the numerous letters sent by the law clerk made it clear why, for over five years, the respondent was seeking to have the applicant undergo IEs. For these reasons, I find that the respondent provided both medical and any other reasons for requesting the applicant attend the IRB IEs that were scheduled to take place between October 8, 2018 to May 30, 2021.

The number and type of IE assessments were not excessive or unreasonable

72The applicant submitted that the number of IEs requested by the respondent were excessive. As set out in 16-003144 v Cumis, insurers have the right to direct the assessment process as they see fit. This means they have the right to choose their own assessors. However, the respondent is required to make efforts to accommodate the applicant and cannot require IEs more often than is reasonably necessary. Further, there must be a reasonable nexus between the type of examination requested and the claimed impairments.

73The applicant alleged she has psychological and cognitive impairments as a result of the accident. She also alleged that she has physical injuries and, according to the IE report of Dr. Anna Czok, deceased physiatrist, dated September 15, 2016, the applicant had been diagnosed by an occupational therapist, Sasha Stewart, with fractured ribs, a spleen injury, lumbar spine pain, thoracic spine pain, visual disturbance, vestibular disorder, cervicalgia, headache, and shoulder arm muscle and tendon injury. Therefore, the various physicians and health practitioners retained by the respondent must be qualified to assess these types of impairments.

74The applicant refused to attend at a functional capacity assessment IE. She relies on the fact that IRB's were reinstated after she attended at the psychiatric IE conducted by Dr. Sivasubramanian on July 14, 2021. However, the IRBs were not reinstated immediately after. The respondent had been requesting that the applicant attend at a functional capacity IE for determining IRBs in addition to a vocational and orthopaedic IE. The applicant questioned the reasonableness of the functional capacity assessment on the basis that an occupational therapist could have done the IE. I find that the respondent’s requests for number and type of IEs were not unreasonable or excessive for the following reasons.

75It is not unusual for an insurer to request a functional capacity assessment to inform an insurer on what the person’s physical capacity is as set out in Mr. Jones’ letters dated June 22, 2018 and June 27, 2018, and in accordance with the testimony of Ms. Sampaio. Physical capacity is important for determining whether there are any other occupations suitable for the applicant to engage in based her education, training or experience. If Dr. Sivasubramanian had not found that the applicant was psychologically impaired from engaging in any occupation, the functional capacity assessment may have determined that she had limited physical capacity to do any occupation, especially in light of her hernia.

76The applicant relied on the respondent’s IRB IE assessments in 2016 to submit that an FAE was not reasonably necessary. After the applicant's counsel advised that the applicant would attend an occupational therapy assessment but would not attend a functional abilities assessment, the respondent asked the assessment clinic if the IE assessor could make a determination of entitlement to IRBs without the functional capacity assessment. The clinic responded that Dr. Czok, physiatrist, could and that if a functional capacity assessment was completed at later date, Dr. Czok could prepare an addendum if required. I do not find that the respondent’s decision not to pursue a functional capacity assessment in 2016 supports the applicant’s submission. The assessment company’s response clearly contemplates that the assessment would be necessary at some point.

77In addition to scheduling a functional capacity assessment, the respondent also asked the applicant to attend an IE with a vocational assessor. The applicant submitted that the respondent ought to have retained an occupational therapist to assess both the applicant's functional capacity and her vocational interests and capacities. The applicant retained an occupational therapist, Maria Ross, who was apparently also qualified for conducting functional capacity assessments and vocational assessments. The applicant submits that the fact Ms. Ross was qualified to do two different kinds of assessments is evidence that the respondent should have only had one assessor for the functional capacity assessment and the vocational assessment.

78The applicant’s legal representative apparently contacted the respondent’s IE occupational therapist, Anna Matrosov, who allegedly advised that she was qualified to conduct a functional assessment of the applicant. However the respondent received a letter from Ms. Matrosov advising that she was yelled at by the applicant’s counsel’s employee and, therefore, contacted the Ontario Society of OTs and the OSOT legal advisory line as she was concerned about the applicant’s counsel’s employee’s tone. As a result she declined to do the IE.

79I accept the evidence of Ms. Sampaio and Ms. Greco that none of the occupational therapists their clinics utilize have the same experience as the applicant’s occupational therapist, Ms. Ross. I was not presented with any evidence by the applicant of any other occupational therapists who have the same qualifications as Ms. Ross. Accordingly, I find that it was reasonable for the respondent to schedule both the functional capacity assessment and a vocational assessment to determine entitlement to IRB's and to schedule an occupational therapist to conduct an in-home assessment and community assessment for providing corollary information on the applicant’s function in four spheres of activity to determine whether she had catastrophic impairments a result of her mental or behavioural impairment.

80The respondent was advised in early 2018 that the applicant was applying for catastrophic impairment determination and the respondent partially approved a treatment plan dated October 23, 2017 prepared by Dr. Harold Becker, general practitioner, for a multidisciplinary catastrophic determination assessment. The respondent delayed the IRB IE assessments pending receipt of the OCF-19 catastrophic impairment application (“OCF-19”). The reason was to avoid a duplication of IE assessments – one set of IEs for IRBs and another set of IEs for catastrophic impairment. The respondent followed up on the results of the catastrophic impairment assessments it had approved and was advised by the applicant’s law clerk on April 10, 2018, that she was withdrawing her treatment plan from Omega Medical and sought approval of a treatment plan from Ross Rehab to conduct the s.25 catastrophic impairment assessments. The respondent did not receive the OCF-19 until either May 7, 2018 when the applicant’s law clerk claimed she faxed it the respondent, or May 15, 2018 when it was emailed to the respondent. Accordingly IEs to assess both IRBs and catastrophic impairment were sent out on June 13, 2018. I find the delay in scheduling the IRB IEs in order to have the same assessors conduct both the IRB and the catastrophic impairment IEs was reasonable given the applicant’s previously expressed concern with the number of IEs she was required to attend.

81The applicant underwent a neuropsychological assessment with Dr. William Fulton on November 29 and 30, 2017. The assessment was not an IE. According to Dr. Fulton, the assessment was recommended by the applicant’s treatment providers. Since the applicant obtained her own assessment with a neuropsychologist and she had complaints of cognitive issues, I find that a neuropsychological IE was reasonably necessary for determining entitlement to both IRBs and NEBs.

82Omega Medical had recommended that the multidisciplinary s.25 catastrophic impairment assessments be conducted by a neurologist, physiatrist, psychologist, two occupational therapy assessments, a neuropsychologist, a general practitioner and a cognitive screen by an unidentified health practitioner. I find that this not much different than the recommendations of Dr. J. Castiglione, CAT clinical co-ordinator with AGS, in his report dated June 11, 2018. Given both Dr. Becker and Dr. Castiglione made similar recommendations, I find the following assessments were reasonable and necessary for addressing the following impairments and injuries alleged as a result of the accident:

1. An orthopaedic assessment to address the applicant’s broken ribs and musculoskeletal pain complaints including knee pain under criteria s.3(2)(e) (“criterion 7”) of the Schedule in force as of November 24, 2015;

2. Neurological assessment to address the C8 radiculopathy (as reported by Dr. Gaspar Israelian, neurologist, on November 26, 2015) under criteria 7

3. The psychological/psychiatric, orthopaedic and occupational therapy assessments to address the applicant’s chronic pain under s. 3(2)(f) (“criterion 8”) of the Schedule in force as of November 24, 2015;

4. Neuropsychological and neurological assessments to address cognitive issues and mild concussion (as diagnosed by Dr. Fulton) under criteria 7 and 8;

5. Psychiatric and occupational therapy assessments to address the mental and behavioural disorders under criteria 7 and 8;

6. A general surgeon to address the splenectomy and the second hernia rupture allegedly caused by an IE assessor under criteria 7.

83The applicant submitted that she withdrew the Omega treatment plan because the assessments recommended were excessive and, instead, she underwent an occupational therapy assessment with Afsha Hussain on January 3 and 15, 2018, with Dr. Dinesh Kumbhare, physiatrist, on May 10, 2018, and with Dr. Cherisse McKay, neuropsychologist, on July 6, 2018. It is not clear why she underwent all of these assessments given that her family physician, Dr. Newton, prepared an OCF-19 dated May 3, 2018. It makes no sense that the applicant would attend at a number of assessments for catastrophic impairment determination after her family physician prepared an OCF-19 and pending the catastrophic impairment IEs if she was concerned that she was attending too many assessments. Given the OCF-19 of Dr. Newton was prepared on May 3, 2018, the assessments by Dr. Kumbhare and Dr. McKay could not have been done for the purpose of s.25(3)5 of the Schedule for preparing an OCF-19 application under s.45 for catastrophic impairment determination, although Dr. Kumbhare did prepare another OCF-19 dated August 6, 2018. Accordingly, it appears the applicant attended these assessment unnecessarily and, therefore, her submission that too many assessments is detrimental to her health is not borne out by the evidence.

84I find that the evidence supports the respondent’s submission that an orthopaedic, neurological, neuropsychological, psychiatric neurocognitive, general surgeon, and occupational therapy assessments were reasonably necessary for determining whether the applicant sustained a catastrophic impairment under criteria 6, 7 and/or 8, despite the applicant subsequently wanting to withdraw Dr. Becker’s treatment plan.

85The applicant’s counsel was writing to the respondent advising that IEs were detrimental to the applicant’s health as the process causes significant stress and anxiety. However, according to the applicant’s testimony and the email from Marta Sampaio to the applicant’s counsel dated October 16, 2018, the reason why she did not attend at the assessments or allow the assessments to go forward when it was an in-home assessment was that her counsel advised her not to. Dr. McKay, psychologist, reported on July 6, 2018 that the applicant was experiencing specific fears or anxiety surrounding certain situations/triggers. These phobias and related behaviours were likely to interfere in her life and it is probable that she monitors her environment in a hypervigilant fashion to avoid certain fears. It is very likely that a reciprocal and exacerbating relationship exists between her physical/cognitive complaints and her psychological functioning. However, there was no medical opinion offered that attending IEs are the situations or triggers or that attending the IEs were detrimental to the applicant’s health.

86The applicant submitted that three of the IEs were scheduled to occur after Gore Mutual's private investigator struck the applicant's son-in-law with his vehicle. I am unable to determine how this is relevant to the reasonableness and necessity of the assessments sought or whether the notices complied with the Schedule. If the applicant was implying that the only reason the respondent sought IEs of the applicant was that its investigator struck the applicant’s son-in-law, I disagree, especially since Gore Mutual sought to have the applicant assessed for IRBs beforehand as evidenced by its notice dated October 17, 2017.

87I find that, based on the respondent’s correspondence with AGS dated July 23, 2018 and August 3, 2018, that the respondent was trying to minimize the number of IE assessments the applicant was required to undergo. The respondent asked AGS if the assessments could be combined and asked if the catastrophic impairment assessments could be limited to three IEs. AGS responded that some of the IRB and catastrophic IEs could be combined and provided with reasons as to why its clinical co-ordinator thought that a proper and thorough catastrophic impairment IE needed more than three assessors. Given that the respondent made efforts to reduce the number of IEs, I am unable to find that the number or type of IEs scheduled by the respondent were excessive or unnecessary. Therefore, this is not a reasonable excuse for the applicant’s non-attendance at the IEs requested by the respondent.

The respondent was not prohibited from using assessment companies to schedule IEs

88There is no dispute that the IE notices in question advised the applicant whether she was required to attend the IE and provided the day, time and location of each assessment. The respondent submitted that the reason the applicant refused to attend the assessments was that she took issue with the IE notices listing an assessment company or clinic as the entity to contact. The respondent submitted, and I agree, that the correspondence shows the applicant thought the notices indicating the IEs were scheduled through an assessment company did not comply with the Schedule’s requirements because the assessment companies are not regulated health professionals and do not have titles and designations indicating their specialization.

89For example, on January 24, 2018, the applicant’s law clerk wrote to Dr. Robert Hines, psychiatrist, advising that the applicant could not consent to submitting to his IE without clarification of his scope of his expertise and his assessment, specifically what impairments and injuries he will be assessing and what tests he will be administering. She also asked him to advise if Makos, the assessment company that the respondent retained at that time, was his agent for the purpose of the IE, that he clarify Makos’ role and purpose of their collection, use and disclosure of the applicant’s personal information. The law clerk had apparently written to Dr. Hines three other times, despite being advised by Lauren Palmer, Vice President of Operations of Makos on November 10, 2017, that Dr. Hines was retained by Makos on behalf of the respondent pursuant to the provisions of the Schedule. Ms. Palmer advised that Dr. Hines would not be responding and that the direct contact from the applicant’s legal representative’s law clerk with Dr. Hines and another IE assessor, Brent Souter, carried the perception of attempting to intimidate them and interfere with the insurer’s obligations and rights under the Schedule.

90Another letter supporting that the real issue was that IE assessment companies were involved is the email from the applicant’s lawyer dated September 28, 2018 to Dr. Ivan Kiss, a neuropsychologist who was scheduled to do an IE through Encompass. Dr. Kiss had advised Mr. Murray’s office in previous correspondence to direct any questions they had about the scope and purpose of his assessment of the applicant to the respondent. Mr. Murray’s September 28, 2018 letter stated that Encompass did not have authority to communicate a diagnosis or delegate a psychological assessment. His statement, plus the types of questions asked by Mr. Murray, imply that the real objection was that the IE assessments were booked by the respondent through an assessment company.

91Marta Sampaio, the President of Encompass, testified. Despite her email to the applicant’s counsel on October 2, 2018 addressing the applicant’s concerns and advising that consent for the respondent to provide information to Encompass was given by the applicant in her OCF-1, the applicant failed to attend the assessments scheduled through Encompass.

92I agree with the respondent as set out in the January 25, 2019 letter from Ken Jones that under s.288.1 to 288.7 of the Insurance Act, RSO 1990, c I.8 (Insurance Act) Makos, RIDM, Encompass, AGS and AssessMed are all entitled to register with the Chief Executive Officer of the Financial Services Regulatory Authority as service providers. Such a licence may be suspended or revoked by the Chief Executive Officer if the service provider fails to comply with the Insurance Act , its regulations or a condition of the licence. That includes failure to comply with the Schedule, which is a regulation made under the Insurance Act. The Tribunal has recognised that respondents may utilise assessment companies to schedule IEs in the reconsideration decision of the in 18-006654 v Royal Sun Alliance Insurance (RSA), 2019 CanLII 34605 (ON LAT) at paragraph 17 and 19 and in L.C. v Aviva Insurance Canada, 2020 CanLII 40331 (ON LAT). I agree with the reasoning in both decisions and find that when s. 288.1 to s. 288.7 of the Insurance Act are read harmoniously together with the Schedule, there is nothing in the Schedule prohibiting insurers from retaining third party service providers to conduct IEs, as long as the actual assessment is conducted by a regulated health professional. All of the IE notices contained the name of each IE assessor, their regulated health profession, titles and designations indicating their specialization and the contact information for a contact person.

93I am unable to find that the fact the IE assessments were scheduled through an assessment company is a reasonable excuse for the applicant’s failure to attend the IEs. The correspondence from the applicant’s counsel with respect to the IEs scheduled all claim that the applicant wanted to attend but was unable to without clarification. I find that the respondent provided that clarification both through the assessment companies and through its adjusting staff. There was enough information for an insured person to determine whether or not they wanted to attend the assessments in pursuit of further accident benefits. By providing the applicant with the professional qualification of each IE assessors, the applicant was able to determine the scope of their assessments and, if there was any doubt, to contact their respective colleges to determine the scope of what each assessor was qualified to assess.

94A number of the IEs were cancelled, either because the assessor was ill or as a result of assessors refusing to continue with the assessment after being contacted by employees or lawyers from the law firm representing the applicant. According to Ms. Greco’s email dated August 10, 2018, Dr. Castiglione advised AGS that under the circumstances, it was not in his best interest to do a catastrophic assessment of the applicant. Ms. Greco advised that she lost her psychiatric, general surgeon and neuropsychological assessors because of the numerous calls and letters from the applicant’s counsel, including a complaint to neuropsychologist Dr. Dowhaniuk’s college. Some of the letters from the applicant’s counsel sent directly to the proposed assessors have a very adversarial tone and seem to contain an implied threat to contact the assessor’s College with complaints if the assessor did not answer or respond to the applicant’s counsel’s inquiries. I find that the correspondence to the proposed IE assessors in the face of the assessors’, the assessment companies’ and the respondent’s requests to not communicate directly with them caused a number of the assessors to back out of doing the assessments, which resulted in delays when an assessment company could not find a replacement assessor. This in turn resulted in the respondent having to retain a new assessment company to arrange for the IEs. I find that these delays were not caused by the respondent, but by the applicant through her counsel and his staff.

The respondent was not barred from seeking IEs after IRBs were denied

95The applicant submitted that once the respondent determined that the applicant was no longer entitled to IRB's for failure to attend the IEs, the respondent was not entitled to request examinations under s. 37 of the Schedule. I do not accept the applicant’s interpretation of the Schedule. I agree with the respondent’s submissions that, if that were the case, s. 37(8) of the Schedule would be redundant. Section 37(8) allows for reinstatement of IRBs once an insured person attends the IEs and for payment of all IRBs withheld if an insured has a reasonable excuse for not attending the IEs. If the applicant were correct, s.37(8) would make no sense. The applicant provided no case law in support of her submission. According to her reasoning, I need not consider whether the notices provided prior to the fall of 2021 comply with the notice requirements under s.44 of the Schedule as there was no legal authority for the respondent to request IE assessments for the purposes of determining entitlement to IRBs during this period of time. However, as I disagree with the applicant’s submission, I have reviewed the requests for the applicant’s attendance at the IEs during the periods of time that IRBs were not paid.

There was no violation under the Human Rights Code

96The applicant submits that the respondent discriminated against her by having her assessed solely with respect to her physical impairments when she has a combination of mental and behavioral and physical impairments. The applicant relies on the case of Tranchemontagne v. Ontario Director, Disability Support Program), 2006 SCC 14, [2006] 1 SCR 513 (Tranchemontagne v. Ontario), which held that statutory tribunals empowered to decide questions of law are presumed to have the power to look beyond their enabling statutes in order to apply the whole law such as the Human Rights Code, to a matter properly before them.

97The applicant’s right to equal treatment and against discrimination, including adverse discrimination, under s.1 of the Human Rights Code is infringed if a requirement, qualification or factor exists that results in the exclusion, restriction or preference of a group of persons who are identified by a prohibited ground of discrimination and of whom the person is a member, such as a person under a disability. There are exceptions under s.11 of the Human Rights Code: where the requirement, qualification or factor is reasonable and bona fide in the circumstances; or it is declared in the Human Rights Code that to discriminate because of such a ground is not an infringement of a right.

98The applicant has the onus to show on a balance of probabilities that the actions or service provided by the respondent creates an adverse distinction based on an enumerated or analogous ground and that the disadvantage is discriminatory because it perpetuates prejudice or stereotypes. The applicant submitted that a functional capacity assessment of people with a spectrum of disabilities spanning mental, behavioral and physical fails to consider the complete level of disability and forces them to attend an assessment that does not effectively appreciate their level of disability. The result is an adverse effect. I was provided with no evidence in support of this submission.

99The applicant’s reasoning may have had some merit if the respondent had only requested a physical assessment of the applicant. However, that was not the case. It requested a multidisciplinary assessment involving assessors qualified to assess psychological impairments and assessors qualified to assess physical disabilities, including the functional capacity assessment. The evidence was that each IE assessor from the multidisciplinary assessment would review and consider the reports of the other assessors before reaching a final conclusion. I was provided with no authority or reasoning that an assessment of an insured person with both mental and physical disabilities by a multidisciplinary assessment results in adverse treatment of the applicant or perpetuates prejudice or stereotypes.

100I find that by requesting a multidisciplinary IE consisting of a neuropsychological and psychiatric assessments in addition to the orthopaedic, functional capacity assessment and vocational assessments, the respondent clearly was taking into account the applicant’s mental and behavioural disabilities together with her physical impairments. Accordingly, I do not find that the assessments arranged by the respondent present any adverse or negative impact under the Human Rights Code on the applicant.

101The applicant submitted that because Dr. Sivasubramanian was able to make a determination that the applicant was entitled to IRBs that did not change after the applicant underwent other IEs is evidence that the functional capacity IE was not reasonable or necessary. I disagree for the reasons already given. The respondent could not have known whether Dr. Sivasubramanian would have determined that the applicant’s psychological impairment did not prevent her from engaging in any occupation. Given that the applicant asserts she has both physical and psychological impairments, I find that it was reasonable for the respondent to request the IEs with the physical components that it did.

102The respondent asked the applicant on a number of occasions what the accommodations the applicant required were under the Human Rights Code. The applicant submits that she provided reports to the respondent to indicate that she had high levels of anxiety and that prevented her from leaving her home and issues from the sound of automobiles that the respondent was required to take that into consideration when scheduling IEs. It appears from Mr. Murray’s letter of February 1, 2019 to the respondent that the form of accommodation was for the respondent to advise the applicant’s daughter and husband how they could apply under s.32 of the Schedule to the respondent to be paid for the attendant care they provide to the applicant. This makes no sense as it is the applicant who applies to the respondent for the attendant care provided to her.

103The applicant submits that there was no evidence that the respondent took the applicant’s high anxiety into consideration when scheduling its IE assessments and, as such, it violated her human rights. I disagree. The fact that the respondent combined the IEs for catastrophic impairment with the IEs for IRBs in order to reduce the number of IEs that the applicant was required to attend shows that the respondent did consider the applicant's anxiety. Accordingly, I am unable to find that there was any violation of the applicant’s human rights.

There was no unreasonable delay of the payment of IRBs that merits a Reg.664 award

104Under s. 10 of O. Reg. 664, the applicant may be entitled to an award of an amount up to 50% of the benefits and interest owed to her if I find that the respondent unreasonably withheld or delayed payments. I find that the applicant has failed to show that is the case.

105It is well settled that an award should not be ordered simply because an insurer made an incorrect decision. Rather, in order to attract a special award, the insurer’s conduct must be excessive, imprudent, stubborn, inflexible, unyielding or immoderate, and the evidentiary onus is on the applicant to demonstrate this and she has failed to do so.

106The applicant submits that, in addition to an unreasonable delay in payment of IRBs by the respondent, she is entitled to an award for the for the following reasons:

1. The respondent criminally harassed the applicant by putting her under surveillance and because its investigator struck the applicant’s son-in-law with a vehicle;

2. The respondent’s IE assessor caused the applicant to sustain a hernia;

3. The respondent cherry picked the information it provided to the IE assessors; and

4. The respondent retained the applicant’s treating physician to conduct an IE and failed to provide the IE report to the applicant or give her notice of the IE.

There was no unreasonable delay in paying IRBs

107I have determined that the applicant is not entitled to IRBs for the period of time she refused to attend the IE assessments. Part of my reasoning is that the respondent complied with the Schedule in providing proper notice for IEs and scheduled IEs that were reasonable and necessary for determining the applicant’s entitlement to benefits. However, just because I find that the IRBs withheld from October 2018 to May 20121 are not payable, that does not end the inquiry. As set out in 17-006757 v Aviva, the Tribunal may grant an award in in circumstances such as this where benefits were in dispute at the time of the application but were no longer owing by the time of the hearing. However, I have determined that any delay in the payment of IRBs that were withheld for the failure of the applicant to attend IEs was not due to the respondent’s actions.

108As 17-006757 v Aviva determined that awards continue to be based on the facts of the case, not simply the facts surrounding the particular issue in dispute, I must also address the applicant’s other submissions with respect to the respondent’s conduct in adjusting her claims.

There was no criminal harassment

109The applicant submitted that the respondent acted criminally by hiring a surveillance company to conduct surveillance on her. She submits that she was criminally harassed by the respondent. She relies on Tranchemontagne v. Ontario) as support for me to determine whether the respondent criminally harassed the applicant by hiring a surveillance company. Under s.264(1) of the Criminal Code, RSC 1985, c C-46 (Criminal Code) no person without legal authority and knowing that another person is harassed, or recklessly as to whether the other person is harassed, engage in conduct such as repeatedly following from place to place the other person or someone known to the other person, or watching their home, workplace or business that causes that other person reasonably, in all the circumstances, to fear for their safety or the safety of anyone known to them.

110I disagree with the applicant that Tranchemontagne v. Ontario applies in this case as that matter dealt with the Social Benefits Tribunal’s (“SBT”) jurisdiction to apply the Human Rights Code. The SBT is a creature of Ontario statute and its jurisdiction is governed by Ontario statute, just as the Tribunal is governed by an Ontario statute, namely the SPPA and the Licence Appeal Tribunal Act. As pointed out by the Supreme Court of Canada in Tranchemontagne v. Ontario, the Legislature saw fit for the Human Rights Code to be applied by all Tribunals. There is no such section in the Criminal Code granting jurisdiction to the Tribunal to apply the Criminal Code. In fact, the procedures for charges under the Criminal Code and the burden of proof in prosecuting offences under that statute are vastly different than those at the Tribunal. Nor did I hear any evidence from the applicant that would satisfy her burden of proving beyond a reasonable doubt that the respondent engaged in surveillance with the intent to cause her to fear for her own or her family’s safety.

111The applicant submitted that the only reason for the surveillance was to intimidate the applicant because Mr. Jones testified that he usually obtains surveillance in order to provide it to the IE assessors within one year of conducting the surveillance, but that was not done in this case. I fail to see how this proves the surveillance was to intimidate the applicant. Especially since Mr. Jones testified that he did not provide the surveillance to the IE assessors as it was too old when he was arranging the IEs. I accept his reasons, given he did not come onto the file until May 16, 2018.

112The surveillance was conducted by Whitehall Bureau and reported on in reports dated June 29, 2016, July 27, 2017, October 13, 2017, and November 6, 2017. Except for the surveillance taken in 2016, the surveillance was taken after the applicant filed an application with the Tribunal for attendant care benefits. The respondent had asked for medical information from the applicant and the response of an employee from the law office of the applicant’s legal representatives was, on October 25, 2017, to berate the respondent’s adjuster and threaten her with a human rights complaint for her handling of the file in the past and for any future decisions going forward. Mr. Jones was not the file handler at the time. Considering that the matter was in litigation, that the applicant was refusing to attend at IEs or to provide updated medical information, I find that it was reasonable for the respondent to conduct surveillance of the applicant in order to determine her levels of activity and determine what assistance she required.

The allegations of injury by an occupational therapist do not merit a special award

113The respondent retained an occupational therapist, Rena Singh, to conduct an IE that allegedly resulted in the applicant sustaining a hernia. Those allegations have proceeded to litigation. I agree with the respondent that, at this time, they are only allegations. The issue of what caused the herniation was not before me, although I note that Dr. Kekosz, the applicant’s physiatrist, reported on November 30, 2016 that the applicant reherniated her umbilical hernia from carrying two eight pound kettle balls. In fact, the evidence is that the applicant had recurring hernias before the accident, which implies that there may be some other reason why she keeps requiring hernia repairs. In any event, if the applicant was injured as a result of the IE assessment, the applicant would have to show that the respondent’s malicious and bad faith conduct led to that result. I was not pointed to any evidence that the respondent and Ms. Singh knew of any restrictions on activity the applicant was under because of her pre-existing condition, let alone that if they did know, that together they plotted to have the applicant engage in restricted activities during the IE. In the absence of such evidence, there is no basis for me to find that the respondent wilfully or maliciously arranged for the assessment to cause a hernia. For these reasons, I am unable to find that the respondent’s request for the IE merits a special award.

The allegation of selective evidence is not a basis for a special award

114The applicant submitted that the respondent acted in bad faith by selectively producing pre-accident medical report's for its IE assessors to review without providing all of the medical documents within its possession and by failing to provide its surveillance to the IE assessors. The applicant also submits that the pre-accident medical reports were produced without the applicant’s consent. It appears the documents were likely obtained from another accident benefit file that the applicant had with Gore.

115The applicant submitted that Dr. Sivasubramanian listed an IE report from Dr. Louis Weisleder, orthopaedic specialist, that was from the 2013 accident, but that report was not disclosed as result of a PIPEDA request. I am unable to find that because Dr. Weisleder’s report was not enclosed in the file produced by Dr. Sivasubramanian’s lawyer to the applicant’s counsel as part of a PIPEDA request, that this is reason to award a special award against the respondent. I agree with the reasoning in Gupta v TD Insurance Meloche Monnex, 2021 CanLII 124062 (ON LAT) that an error in handling medical records does not merit a special award.

116There could be any number of reasons for why Dr. Weisleder’s report was omitted. Whether or not it was reviewed by Dr. Sivasubramanian might have been relevant to the weight to be given to Dr. Sivasubramanian’s opinion if entitlement to benefits was an issue before me, which it was not. However, it is not relevant to a special award.

117The applicant submitted that the respondent had an obligation to advise its IE assessors that the applicant believed her abdominal hernia was caused by Ms. Singh’s IE, that the applicant’s son-in-law was struck by a vehicle conducting surveillance on the applicant for the respondent, and that it had an obligation to provide the surveillance reports.

118Under s. 44(9)1 of the Schedule, both the insurer and the insured person are required to provide to the IE assessor such information and documents that are relevant and necessary for the review of the insured person’s medical condition. This is an equal obligation on both parties and it is not a requirement that all documentation in each parties’ possession be provided, just those relevant and necessary to the applicant’s medical condition. The reason that the obligation is on both parties and not just the insurer is that most of the relevant information on an insured person’s medical condition is within the possession or control of the insured person. In fact, this is the historical basis for the reciprocal duty of good faith.

119I find that the applicant’s concerns about the IEs were communicated to the assessors by way of the inclusion of letters from the applicant’s counsel’s office that were, according to the affidavit sworn January 27, 2023 of Colin Miller, a Vice-President of AssessMed, in the possession of at least AssessMed. However, even if the respondent had not communicated the applicant’s concerns, the applicant had an obligation to provide information she believed was relevant to the IE assessors.

120The surveillance reports were provided to the applicant and, accordingly, if she felt that it was necessary for the IE assessors to have the reports, she had an obligation to provide them under s.44 of the Schedule.

121The applicant submitted that s.44(9)1 requiring her to submit her own documentation does not apply in this case because it would create a burden on her to submit thousands of documents to the IE assessors. She submitted that doing so by email is a mechanical burden. No explanation or evidence was provided as to how this was the case. The applicant had legal representation that was, based on the applicant’s submissions and evidence, quite capable of making numerous PIPEDA requests and, therefore, she had all relevant documents. Based on the testimony of the IE assessment companies’ representatives, all their files were electronic. If emailing the electronic documents in the applicant’s possession via her counsel was for some reason (which was not explained or proven) mechanically untenable, the applicant could have sent a USB stick containing the documents to the IE assessment companies. Having said that, the applicant clearly had no issues in filing her brief consisting of 9218 pages with the Tribunal. Accordingly, the applicant has provided no reasonable explanation of why s.44(9)1 of the Schedule should not apply to her.

122The applicant had copies of the respondent’s accident benefit file pertaining to her and, therefore, she knew what the respondent was able to provide to the IE assessors. If there was information that the applicant thought it was very important for the assessors to know, then the applicant was obligated to provide that information to the assessors.

123The applicant submitted that she was unable to provide information to the IE assessors because her legal representatives were told by the respondent and the IE assessment companies that direct contact information for each IE assessor is not given out. Gina Greco explained in her email to the applicant’s law clerk dated June 19, 2018 that the reason for this was to ensure the assessor’s neutrality and independence. The applicant was also advised that she could provide her medical documents to the IE assessors by sending the documents to the assessment companies. The applicant’s counsel took issue with this and wanted to send documents directly to the assessors.

124I find that it was not unreasonable for the applicant to provide her medical documents to the assessment companies rather than directly to the assessors, which is supported by R.J. vs. Economical. Further, the communications from applicant’s counsel and his staff to the assessors have a threatening tone and may be taken as an attempt by the applicant’s counsel to influence the course of the IE assessments. This had to have been clear to the applicant’s counsel given Ms. Greco’s reasons for why contact information for AGS’s assessors is not released prior to the completion of the IEs. Given the continued attempts by the staff of the applicant’s counsel to contact IE assessors after Ms. Greco’s letter was sent out, I can only conclude that it was to intimidate the IE assessors. Especially the email from the applicant’s counsel dated September 26, 2018 to Dr. Kiss calling him a liar. Accordingly, I find there were delays as a result of the assessors dropping out because of contact from the applicant’s counsel. In no way can those delays be placed at the feet of the respondent.

125In fact, I find that the respondent’s efforts to accommodate the applicant by scheduling the IEs for both IRBs and catastrophic impairment together in the face of a number of assessment clinics whose assessors refused to conduct IEs after being contacted by the applicant’s counsel is clearly an attempt to accommodate the applicant. This is supported by the respondent’s determination that the applicant continued to be entitled to IRBs without requiring her to complete the remaining IEs, which I determined were reasonable and necessary. For all of these reasons, the applicant’s claim for a special award is dismissed.

No interest is owed

126As I have determined that no benefits are owed, no interest is payable.

CONCLUSION AND ORDER

127The applicant’s application is dismissed in its entirety.