Licence Appeal Tribunal File Number: 22-011612/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:
Kate Banas
Applicant
and
Allstate Canada
Respondent
PRELIMINARY ISSUE HEARING DECISION AND ORDER
ADJUDICATOR:
Tavlin Kaur
APPEARANCES:
For the Applicant:
Tina Lubman, Paralegal
For the Respondent:
Ravinder Chahal, Counsel
Heard by way of written submissions
OVERVIEW
1Kate Banas, the applicant, was involved in an automobile accident on October 15, 2020 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”). The applicant was denied benefits by the respondent, Allstate Canada (“Allstate”), and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
PRELIMINARY ISSUE IN DISPUTE
2The preliminary issue to be decided is whether the applicant is barred from proceeding with her claim for all of her benefits as she failed to submit to an insurer’s examination under section 44 of the Schedule?
3The question that is before the Tribunal is a very narrow one. However, it should be noted that the respondent has raised the issue of section 33 non-compliance in their submissions. This issue is not properly before the Tribunal. If other issues are to be added, parties must follow the appropriate procedure, such as filing a motion to add any additional issues. That has not been done in this case. As such, the Tribunal will not consider any additional issues.
RESULT
4The applicant is not barred from proceeding with her application.
ANALYSIS
5Section 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.
6The requirements for a Notice of Examination are set out in section 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,
i. the medical and any other reasons for the examination;
ii. whether the attendance of the insured person is required at the examination;
iii. 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
iv. 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.
7Section 44(9)2. sets out the rules for an in-person insurer examination:
- If the attendance of the insured person is required,
v. the insurer shall make reasonable efforts to schedule the examination for a day, time and location that are convenient for the insured person,
vi. 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
vii. 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.
8Section 55(1)2 of the Schedule provides that an insured person shall not apply to the Tribunal if the insurer has provided the insured person with notice that it requires an examination under section 44, but the insured person has not complied.
9Given 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.
10To be clear, the respondent must first prove that a Notice of Examination complies with section 44(5) of the Schedule in order for an applicant to be statute-barred from proceeding under section 55. In seeking such a remedy, the respondent must ensure that it provides specific details of the applicant’s conditions, the benefit in dispute and any section it relies upon.1
11It is well-settled that the insurer’s medical and any other reasons should include specific details about the insured’s condition forming the basis for the insurer’s decision or, alternatively, identify information about the insured’s condition that the insurer does not have but requires. The “medical and any other reasons” should be clear and sufficient enough to allow an unsophisticated person to make an informed decision on whether to attend the IE.
12Moreover, it is trite law that boilerplate medical reasons for denials of treatment plans submitted under the Schedule constitute as no reasons at all. Reasons must be meaningful in order to permit the insured person to decide whether or not to challenge the insurer’s determination.
13I note that according to Smith v. Co-operators General Insurance Co, 2002 SCC 30 (“Smith”), the refusal to pay the benefit must contain straightforward and clear language, it must be directed towards an unsophisticated person, it must outline the dispute resolution process and the relevant time limits that govern the process, and it must provide valid or other reasons for the denial. [my emphasis added]. Defining with precision an unsophisticated person is a challenging task; however, the Court’s direction in Smith clearly recognizes that greater accessibility of an insured person to the informational content of the denial notice is of paramount importance and must necessarily account for the variety of persons and backgrounds who may make claims for accident benefits.
14Accordingly, Smith requires a denial notice to be as specific and accessible as possible to ensure that there is no ambiguity in what they mean when read by an unsophisticated person. This means the notice at the very least should explain what the insured person’s medical conditions are and why for example, those conditions do not justify removal from the Minor Injury Guideline. An individual might not understand why their medical conditions are considered to be minor if they are not provided with more context. By providing this information, the insured person will have a better understanding of the insurer’s determination. It is then that the consumer protection mandate of the Schedule is achieved.
15Therefore, the notice requirements set out in section 44(5) should be strictly construed and the notice should be closely examined to ensure it complies. If the respondent’s notice does not comply with section 44(5), an insurer cannot rely on the severe remedy available in section 55 of the Schedule to bar an insured’s application from proceeding before the Tribunal.
ANALYSIS
Background
16The respondent submits that on February 16, 2021, they advised the applicant that she is to attend two insurer examinations (“IEs”) as per section 44 of the Schedule because they wanted to determine the extent of her injuries and whether she would meet the test of disability for the income replacement benefit and the non-earner benefit. On March 3, 2021, the insurer was informed by Assessment Rehabilitation Services LTD (A.R.S) that the applicant failed to attend at her section 44 Orthopaedic Assessment. The respondent sent the applicant an Explanation of Benefits (“EOB”) dated March 11, 2021 which indicated that she was non-compliant for failing to attend the insurer examination as per section 36 and section 44 of the Schedule.
17The psychological assessment was originally scheduled for April 21, 2021 but was rescheduled to June 16, 2021 at the applicant’s request. The applicant did not attend the assessment. On June 28, 2021, the respondent sent an EOB which indicated that she remained non-compliant for failing to attend the IE. An EOB dated November 28, 2022 was sent to the applicant to inform her that she continued to remain non-compliant for failing to attend the third IE which was scheduled on November 9, 2022. It is the respondent’s position that the applicant has failed to attend the IEs on three separate occasions and has not provided a reasonable explanation for the non-attendance.
18I have reviewed the evidence and submissions from both parties, and I find that neither party has given the Tribunal cogent submissions regarding the section 44 non-attendance. Moreover, the respondent has failed to submit the Notice of Examination (“NOE”) into evidence. In fact, the respondent’s submissions note that TAB 7 includes the NOE dated February 16, 2021. Upon further review, Tab 7 includes an EOB dated February 11, 2021 which is in relation to the section 33 non-compliance.
19As the respondent raised the preliminary issue, it was their onus to prove that the applicant should be barred from proceeding with her application due to non-compliance. It was incumbent upon them to demonstrate to the Tribunal that the NOE was compliant with the Schedule when seeking such a severe remedy. I am unable to make a determination as to whether the NOE meets the requirements set out in section 44(5).
20The role of an adjudicator is to assess the evidence in order to resolve a dispute between parties. Without the evidence that is crucial to making this determination, I am unable to conduct the analysis as to whether the applicant should be barred from proceeding with her application due to the section 44 non-attendance. Parties are expected to put their best foot forward to discharge their onus in their hearing submissions. The respondent in this matter has failed to do so.
21For the reasons above, I find that the applicant is not precluded from applying to the Tribunal.
ORDER
22The applicant may proceed with her application before the Tribunal.
Released: August 23, 2023
Tavlin Kaur
Adjudicator
Footnotes
- The Divisional Court in Hedley v. Aviva Insurance Company of Canada, 2019 ONSC 5318 considered the Tribunal’s reconsideration decision of B.H. v. Aviva Insurance Company, 2018 CanLII 84051 (ON LAT), which in turn applied 16-003316/AABS v. Peel Mutual Insurance Company, 2018 CanLII 39373 (ON LAT)(“T.F.”). The Court found no basis to intervene as the decision was within the reasonable range of outcomes. In T.F, Executive Chair Lamoureux repeated her comments from M.B. in paragraph 19 in relation to medical and any other reasons.