Nayyar v. TD General Insurance Company, 2024 CanLII 67353

Licence Appeal Tribunal

Citation: Nayyar v. TD General Insurance Company, 2024 CanLII 67353 Licence Appeal Tribunal File Number: 23-015391/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:

Karan Nayyar Applicant

and

TD General Insurance Company Respondent

PRELIMINARY ISSUE HEARING DECISION AND ORDER

ADJUDICATOR: Rachel Levitsky

APPEARANCES:

For the Applicant: Vismay Merja, Counsel

For the Respondent: Adrianna Klukowska, Counsel

HEARD: By Way of Written Submissions

OVERVIEW

1Karan Nayyar (“the applicant”), was involved in an automobile accident on September 29, 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 TD General 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:

i. Is the applicant barred from proceeding to a hearing for the benefits claimed in this application because he failed to attend an insurer’s examination under section 44 of the Schedule?

RESULT

3The applicant is not barred from proceeding to a hearing for his entitlement to income replacement benefits.

4The scope of the hearing shall be limited to determine the applicant’s entitlement to income replacement benefits up to the date of non-compliance with the request for s. 44 assessments. Accordingly, the issues to be decided at the hearing are:

i. Is the applicant entitled to an income replacement benefit in the amount of $400.00 per week from September 29, 2022 to June 18, 2024?

ii. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?

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

ANALYSIS

Parties’ Positions

5The applicant applied for income replacement benefits as a result of the accident. The respondent advised the applicant that he was not entitled to income replacement benefits on July 19, 2023, for failure to provide information reasonably required to assist with the determination of entitlement. On August 1, 2023, the respondent advised the applicant that it had received a Minor Injury Treatment Discharge Report stating that he was discharged from treatment due to non-attendance, and he was disentitled to the benefit for that reason as well. The applicant submitted its application to the Tribunal on December 19, 2023. On March 20, 2024, the respondent requested insurer’s examinations under s. 44 to assess the applicant’s entitlement to income replacement benefits.

6The respondent submits that the applicant failed to attend the s. 44 examinations. It relies on s. 55(1)2, which states that an insured person shall not apply to the Tribunal under subsection 280(2) of the Insurance Act if the insurer has provided the insured person with notice that it requires a s. 44 assessment, and the insured person has not complied with that section.

7The applicant submits that his application to the Tribunal predates the respondent’s request for assessments, and the plain reading of s. 55(1)2 prohibits an insured person from making an application. He argues that to expand the reading of s. 55 to include applications already in progress would provide an incentive to insurers to make requests for examinations that may represent hurdles for insured persons to bring applications to a hearing. He relies on SSR v. Unifund Assurance Company, 2019 CanLII 76966, where the Tribunal denied an insurer’s request to dismiss the application as it had not requested the examinations until two months after the applicant filed his application. The applicant argues in the alternative that non-attendance should present a prohibition on a hearing for specified benefits from the period of non-attendance, rather than a blanket prohibition on any application to the Tribunal.

8Further, the applicant submits that due to an administrative error on the part of his legal representative’s office, the correspondence advising him of the assessments was not properly processed, and he was not notified of the initial assessment dates. The assessments were to take place on April 11, 16, 19, and 22, 2024. He submits that his non-attendance was due to an inadvertent error, and not a deliberate choice. On May 23, 2024, the applicant requested new dates for the examinations.

9New dates were subsequently set for June 18 and 20, July 9, and August 7, 2024. The applicant made note of these new dates in his submissions, thus confirming that he was aware of them.

10On July 3, 2024, the respondent wrote to the Tribunal advising that the applicant did not attend the assessments on June 18 and 20, without explanation or warning.

The Law

11Section 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 assessment.

12The 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.

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 section 44, but the insured person has not complied.

14These provisions of the Schedule make it clear that the applicant has a duty to participate in each assessment that is reasonably necessary and for which there is a Schedule-compliant notice.

The application was submitted prior to the request for assessments

15I find that s. 55(1)2 does not apply in this particular case, as it only prohibits an insured person from making an application, not continuing with one. I agree with the applicant that the Schedule is consumer protection legislation, and the plain reading of s. 55(1)2 is consistent with that mandate. The respondent denied the benefit based on a failure to provide medical information and non-attendance at treatment, and the applicant applied to the Tribunal on that basis, which he was permitted to do. The denial had nothing to do with a failure to attend s. 44 assessments. The applicant has not been receiving income replacement benefits since they were denied, and he is entitled to dispute that denial.

16The respondent submits that these assessments are the only way that it can obtain its own medical opinions, and that depriving it of its right to these assessments constitutes procedural unfairness and prejudices it. I agree. The respondent has an obligation to adjust this claim on an ongoing basis and does not currently have any medical opinions of its own.

17In addition, the applicant is not arguing that he should not have to attend the assessments. He does not argue that they are unnecessary. He indicated in his submissions that he would attend them (even though he failed to).

18Entitlement to an income replacement benefit is determined on an ongoing basis. If the applicant is deemed to have been entitled to the benefit when he first applied, it does not mean that he is necessarily entitled to it indefinitely. The respondent has the right under s. 44 to require the applicant to attend assessments to determine whether he continues to be entitled to a benefit.

19However, if I were to accept the respondent’s argument and bar the application until such time that the applicant attends the assessments, I would have to ignore its initial denial and the legitimacy of appealing on the basis of that denial.

20I am also persuaded by the interpretation of s. 280 as set out in J.R. v. Primmum Insurance, 2018 CanLII 140991:

“Section 280 [of the Insurance Act] provides that either the applicant or respondent may apply to the Tribunal to resolve a dispute over the applicant’s entitlement to a statutory accident benefit or the amount of the benefit. In my view, there must be a dispute at the time of application. The Tribunal’s jurisdiction over a matter is determined as of the date upon which the Notice of Application for Dispute Resolution is first filed with the Tribunal. If, at that date, there is a dispute over entitlement to or the quantum of a benefit, then the Tribunal has jurisdiction. If there is not, then the application has no validity and must be dismissed because of a lack of jurisdiction.”

21As there was a dispute over entitlement to the benefit, and an application was made prior to the request for assessments, it would not be appropriate to dismiss this application.

22The applicant submits that non-attendance at a s. 44 assessment requested after the commencement of an application should present a prohibition on a hearing of specified benefits from the period of non-attendance, rather than a blanket prohibition on any application to the Tribunal at all. Under these particular circumstances, I accept the applicant’s submission. Further, any prejudice to the applicant in making such a prohibition is mitigated by the fact that he can apply to the Tribunal in the future, so long as he attends the assessments.

23I do not find that the respondent is prejudiced by my decision. I am not barring the respondent from adducing evidence at this hearing. The respondent presumably has evidence to defend its denial, or it would not have denied the benefit in the first place. If the applicant wishes to pursue benefits past the period of non-attendance, he will have to comply with s. 44. This would allow the respondent to rely on its medical opinions if the benefit is subsequently denied after the assessments have taken place.

24I will now turn to whether this hearing should be limited in scope due to non-attendance at the s. 44 assessments.

The notice of examination complied with s. 44(5)

25In order to prove that a Notice of Examination is complaint with section 44(5) of the Schedule, 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.

26I find that the Notice of Examination dated March 20, 2024 was a valid notice. It explained that it required an updated picture of the applicant’s medical condition, given that the OCF-3 was submitted 15 months prior. It also stated that the applicant was discharged from treatment on July 5, 2023 due to noncompliance with attendance, and thus it had no evidence on file indicating that he had continued treatment in relation to his injuries. It further stated that his attendance was required in order to determine his ongoing eligibility to the income replacement benefit. Appropriate details were provided regarding the name and type of assessors, and the date, time, and location of the assessments.

27I also find that the second Notice of Examination dated June 4, 2024 was a valid notice, as it repeated the language in the first letter.

28Having found that the notices were compliant with the Schedule, I must now consider whether the applicant had a reasonable explanation for his non-attendance.

The applicant does not have a reasonable explanation

29The applicant’s explanation for his initial non-attendance was that his counsel’s office made an inadvertent administrative error. He then agreed to attend the assessments and asked for them to be rescheduled. This was the first time that s. 44 assessments were arranged. I have no reason to believe that this was not a genuine explanation. In the circumstances, I find that the applicant’s explanation for his initial non-attendance was reasonable.

30However, the applicant subsequently failed to attend the rescheduled assessments, despite stating in his submissions that he would attend. In the absence of any correspondence or information from the applicant regarding this failure, I find that he has not met his onus to establish that there was a reasonable explanation for his non-attendance at the rescheduled examinations.

31The first assessment was rescheduled to take place on June 18, 2024. I accordingly find that the applicant is not permitted to claim income replacement benefits in this hearing past that date.

ORDER

32The applicant is not barred from proceeding to a hearing for his entitlement to income replacement benefits.

33The scope of the hearing shall be limited to determine the applicant’s entitlement to income replacement benefits up to the date of non-compliance with the request for s. 44 assessments. Accordingly, the issues to be decided at the hearing are:

i. Is the applicant entitled to an income replacement benefit in the amount of $400.00 per week from September 29, 2022 to June 18, 2024?

ii. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?

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