Xhermi Trimi v. Aviva Insurance Company of Canada, 2024 CanLII 108245

24-001015/AABS-PI

Licence Appeal Tribunal File Number: 24-001015/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:

Xhermi Trimi

Applicant

and

Aviva Insurance Company of Canada

Respondent

PRELIMINARY ISSUE HEARING DECISION AND ORDER

ADJUDICATOR:

Ulana Pahuta

APPEARANCES:

For the Applicant:

Luke Hamer, Counsel

For the Respondent:

Maia Abbas, Counsel

Heard:

By way of written submissions

OVERVIEW

1Xhermi Trimi (the “applicant”) was involved in an accident on May 30, 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 Aviva Insurance Company of Canada (the “respondent”) and applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

2The applicant is disputing entitlement to income replacement benefits, an award, and interest. The respondent raised two preliminary issues to be addressed in advance of the substantive issues.

PRELIMINARY ISSUES IN DISPUTE

3The preliminary issues to be decided in this hearing are:

1. Is the applicant barred from proceeding to a hearing for all the benefits claimed in this application because the applicant failed to attend an insurer’s examination (“IE”) under s. 44 of the Schedule?

2. Is the applicant barred from proceeding to a hearing for all the benefits claimed in this application because the applicant failed to dispute their denial within the 2-year limitation period?

RESULT

4The applicant is barred from proceeding with his application under s. 55 of the Schedule, as he failed to attend a properly scheduled s. 44 IE.

PROCEDURAL ISSUE

5In its reply submissions, the respondent raises the issue of the applicant’s improper submission of two affidavits, one from the applicant himself and one from his counsel. The respondent submits that both affidavits were dated June 26, 2024, the date of the applicant’s preliminary issue hearing submissions, and were submitted as part of his evidence for this hearing without any prior notice. The respondent argues that this is a violation of timelines set out in the Case Conference Report and Order dated May 30, 2024 (“CCRO”) and requests that the affidavits be excluded as evidence in this hearing. It submits that serving affidavits for the first time as part of written hearing submissions is an attempt to “ambush” the respondent.

6The applicant brought a Notice of Motion dated July 2, 2024 and an Amended Notice of Motion on July 12, 2024 requesting that his sur-reply submissions, provided as part of his motion materials, be considered in this hearing. In the alternative, the applicant requests an order extending the time for delivery of affidavit evidence to permit the inclusion of the two affidavits. The motion was set to be heard as part of this preliminary issue hearing.

7Upon review of the applicant’s sur-reply included with his motion materials, I agree with the respondent that the applicant’s sur-reply only speaks to the admission of affidavits and not to the preliminary issues in dispute. As such, in my view the applicant is requesting only one order as part of his motion, namely, that he be permitted to include the two affidavits as part of his preliminary hearing submissions and evidence.

8The applicant’s request to include his affidavit is denied. However, the applicant’s request to include his counsel’s affidavit is granted.

9I agree with the respondent that the applicant’s submission of the two affidavits dated June 26, 2024 is a violation of the orders set out in the CCRO. Paragraph 7 of the CCRO requires that the parties exchange all of the documents to be relied on as evidence in this hearing no later than seven days after the case conference and paragraph 10(iii) states that the parties agreed that no affidavits will be submitted. I am not persuaded by the applicant’s argument that the respondent misunderstood the timelines set out in the CCRO or that the affidavits could not have been created prior to the receipt of the respondent’s preliminary issue hearing submissions.

10While I agree with the applicant that parties are entitled to a full and fair hearing of the issues in dispute, I find that the respondent would be highly prejudiced if the applicant’s affidavit was included at this late stage. The applicant’s affidavit includes factual statements and statements on the applicant’s position. I agree with the respondent that given that the affidavit was submitted only with the applicant’s responding submissions, it would be unable to cross-examine the applicant and properly respond to his affidavit. As such, I rely on Rule 9.4 of the Tribunal’s Rules, which states that a party may not rely on a document if it fails to comply with a Tribunal order, without the consent of the Tribunal, and find that the applicant’s affidavit is not admissible in this hearing.

11However, with respect to the applicant’s counsel’s affidavit, I find that this affidavit will not be excluded. From my review of this affidavit, it is limited to providing a chronology of events through documents identified in, and attached as exhibits to the affidavit. The referenced documents are highly relevant and include correspondence from the respondent, various OCF forms, and the tolling agreement. These documents seem to be essential for establishing an evidentiary and factual basis for a claim. The respondent would have been aware of these documents and has not demonstrated any real prejudice from their admission. However, I have given no weight to the portions of the affidavit that express opinions or make submissions regarding the attached documents, but rather, I have considered only the facts established by the documents themselves.

ANALYSIS

Law - Section 44

12Section 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.

13Section 55(1)2 of the Schedule provides that an insured person shall not apply to the Tribunal if the insurer has provided the insured person with notice that it requires an examination under s. 44, but the insured person has not complied. The onus is on the insured person to put forth a reasonable explanation for non-attendance at an IE. The Tribunal may, under s. 55(2) of the Schedule permit an insured person to apply to the Tribunal despite a failure to comply with s. 44, subject to terms and conditions.

Background and parties’ positions

14The respondent had denied the applicant’s claim for income replacement benefits (“IRBs”) on December 6, 2021 based on various IE reports including a psychological report of Dr. Christopher Hope. Dr. Hope found no valid evidence of an accident-related psychological impairment with invalid psychometric results.

15The applicant subsequently submitted a treatment plan for psychological treatment. The respondent conducted an additional psychological IE with respect to this treatment plan and in a report dated March 16, 2022, the respondent’s psychological IE assessor Dr. Monique Costa El-Hage diagnosed the applicant with an Adjustment Disorder with Mixed Anxiety and Depressed Mood. Dr. El-Hage also found the proposed treatment to be reasonable and necessary.

16In light of Dr. El-Hage’s IE report, the respondent subsequently requested the applicant’s attendance at an new psychological IE to re-assess his entitlement to IRBs in light of “the change in your psychological diagnosis”. The respondent submits correspondence indicating that it had initially requested a paper review rather than an in-person assessment, but that both Dr. El-Hage and Dr. Hope had declined to conduct paper reviews and required in-person examinations. By way of correspondence from applicant’s counsel, the applicant refused to attend the scheduled in-person psychological IE.

17The respondent submits that the proposed IE was reasonably necessary to determine the applicant’s entitlement to IRBs. It submits that once it received Dr. El-Hage’s findings of a psychological impairment, it had a duty to adjust the applicant’s file in good faith. Although it requested a paper review from both Dr. El-Hage and Dr. Hope, both psychologists declined. It further submits that even though Dr. El-Hage agreed to a short phone assessment in lieu of an in-person assessment, the applicant refused to attend the phone assessment as well.

18The applicant does not dispute that he did not attend the requested psychological IE or that the respondent’s notice was compliant with s. 44(5). Rather, he submits that requesting a third psychological assessment just days after Dr. El-Hage’s March 16, 2022 report was completed, is excessive and not reasonably necessary. The applicant argues that the respondent has not provided a reason as to why Dr. Hope could not conduct a paper review.

The proposed psychological assessment was reasonably required

19In determining if a requested IE is reasonably necessary, the Tribunal has considered the following criteria (see 17-005291/AABS v. Travelers, 2018 CanLII 13171 (ON LAT)):

i. The timing of the insurer’s request;

ii. The possible prejudice to the other side;

iii. The number and nature of the previous insurer’s examinations;

iv. The nature of the examination being requested;

v. Whether there are any new issues being raised in the applicant’s claim that require evaluation; and,

vi. Whether there is a reasonable nexus between the examination requested and the applicant’s injuries.

20I find that the proposed examination was reasonably necessary to address the applicant’s entitlement to IRBs. I agree with the respondent that an insurer has an ongoing obligation to adjust a claimant’s file in good faith. Upon receipt of the March 2022 psychological IE report, the respondent was informed that a new psychological diagnosis had been made by its s. 44 assessor when considering a treatment plan. While the applicant argues that this diagnosis should not have been a surprise since his s. 25 assessor had made a similar finding in October 2020, in my view the confirmation of this diagnosis by the respondent’s IE assessor is a new issue which warranted evaluation. As such, I find the timing of the request to be reasonable.

21While I agree with the applicant and its cited decision that IEs are inherently intrusive, the respondent has submitted correspondence that it attempted to minimize the impact on the applicant. In a letter dated April 20, 2022 the respondent explained that it had attempted to schedule paper reviews, but that both of its psychological IE assessors had refused to conduct paper assessments. While Dr. El-Hage had agreed to conduct a telephone appointment in lieu of an in-person examination, the applicant had refused to attend the telephone assessment as well. In my view, the respondent took reasonable steps to accommodate the applicant and reduce the impact of the proposed assessment.

22The respondent had originally denied the applicant’s claim for IRBs partly on the basis that there was no valid evidence of an accident-related psychological impairment. In light of the fact that a different IE assessor had now diagnosed the applicant with a psychological impairment when considering a treatment plan, the respondent’s request for the applicant to be assessed for the purposes of IRBs was a reasonable request. The respondent has submitted correspondence explaining that Dr. El-Hage had required an in-person assessment rather than paper review, since different questions and testing were required for IRBs versus medical benefits.

23As such, I find that the requested insurer’s examination was reasonably necessary and that none of the arguments put forward by the applicant constitute a reasonable explanation for non-attendance.

ORDER

24The applicant is barred from proceeding with his application under s. 55 of the Schedule, as he failed to attend a properly scheduled s. 44 IE.