Licence Appeal Tribunal
Licence Appeal Tribunal File Number: 23-006851/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:
Arn Dexter Ducusin
Applicant
and
Belair Insurance Company Inc.
Respondent
AMENDED PRELIMINARY ISSUE HEARING DECISION AND ORDER
ADJUDICATOR:
Kate Grieves
APPEARANCES:
For the Applicant:
Adam Kuciej, Counsel
For the Respondent:
Robbie Brar, Counsel
Heard:
By Way of Written Submissions
OVERVIEW
1Arn Dexter Ducusin (“the applicant”), was involved in an automobile accident on January 24, 2022 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 Belair Insurance Company (“the respondent”) 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 his claim for all of the accident benefits claimed in the application as he failed to submit to an insurer’s examination under section 44 of the Schedule?
RESULT
3The applicant is not barred from proceeding with his application.
ANALYSIS
Parties’ Positions
4The respondent submits that the applicant failed to attend an insurer’s examination (IE) with a psychologist, as well as the rescheduled IE. The respondent submits that it provided sufficient notice and reasons for the section 44 IEs, and that it required the examinations to determine the applicant’s entitlement to the benefits in dispute.
5The applicant submits that the notices for the IEs do not comply with the requirements of section 44, because it failed to provide sufficient “medical and other reasons” for the examination. The applicant points out that he has since agreed to attend the IE, but it has not been rescheduled by the respondent.
The Law
6Section 44(1) of the Schedule permits an insurer to examine an insured person by one or more regulated health professionals (or a vocational rehabilitation expert) to determine whether the insured person is, or continues to be, entitled to a benefit. Section 44 provides certain requirements for an insurer to comply with in order to invoke its rights to an IE.
7The requirements for a Notice of Examination (“NOE”) 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,
(a) the medical and any other reasons for the examination;
(b) whether the attendance of the insured person is required at the examination;
(c) the name of the person or persons who will conduct the examination, any regulated health profession to which they belong and their titles and designations indicating their specialization, if any, in their professions; and
(d) if the attendance of the insured person is required at the examination, the day, time and location of the examination and, if the examination will require more than one day, the same information for the subsequent days.
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.
9These provisions of the Schedule make it 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. The respondent must first prove that a Notice of Examination is compliant with section 44(5) of the Schedule in order to rely on it as a basis to seek a statutory bar 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. (See Hedley v. Aviva Insurance Company of Canada, 2019 ONSC 5318; B.H. v. Aviva Insurance Company, 2018 CanLII 84051 (ON LAT); and 16-003316/AABS v. Peel Mutual Insurance Company, 2018 CanLII 39373 (ON LAT)). The reasons must be clear enough so that an unsophisticated person can make a well-informed decision on whether to attend the examination.
10I find that the Notice of Examination dated March 20, 2023 did not comply with section 44(5) of the Schedule. I agree with the applicant that the respondent did not provide a “medical or any other” reason for the examination. The applicant’s medical condition(s) are not identified, and the language is vague. It states that there is “insufficient compelling medical evidence provided by your health practitioner showing that your prior medical condition will not allow for a full recovery under the $3,500.00 limit”, and “that there is a lack of objective medical evidence of any psychological diagnosis having been sustained as a result of the motor vehicle accident” and that it required an assessment.
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. Here, the respondent did not provide any details of the applicant’s condition(s) that formed the basis of the insurer’s decision, or what information it did not have but required. Referencing the lack of objective medical evidence is not sufficient to discharge the burden to identify what information it did not have but required from the applicant.
12The IE was rescheduled, and a second letter dated April 20, 2023 was sent to the applicant. It provided the details of the examination but did not cure the deficient notice. It again does not identify the applicant’s condition(s) or reference what information it did not have but required from the applicant.
13Given that the NOEs did not comply with section 44(5) the respondent cannot rely on the remedy available in section 55 of the Schedule to bar an insured’s application from proceeding before the Tribunal.
14Having found the NOEs deficient, it is not necessary for me to consider whether the IE was reasonably necessary or whether the applicant had a reasonable explanation for his non-attendance.
15For the reasons above, I find that the applicant is not precluded from applying to the Tribunal.
COSTS
16The applicant indicated in his submissions that he is seeking costs of $300.00 for preparation of a response for an “unnecessary preliminary issue hearing”, given that he has since agreed to attend the assessment in good faith. I find that the applicant has not met the test set out in Rule 19. In the absence of reasons and particulars, I am unable to award costs. In any event, I find the actions of the respondent are not sufficient to award costs. The threshold to find bad faith or unreasonable, frivolous, vexatious behaviour is very high. The respondent’s conduct has not met that threshold.
ORDER
17The applicant may proceed with his application before the Tribunal.
Released: April 10, 2024
___________________________
Kate Grieves
Adjudicator