Matthew Petch v. TD General Insurance Company, 2024 CanLII 79225

Licence Appeal Tribunal

Citation: Petch v. TD General Insurance Company, 2024 ONLAT 23-015315/AABS-PI Licence Appeal Tribunal File Number: 23-015315/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:

Matthew Petch Applicant

and

TD General Insurance Company Respondent

PRELIMINARY ISSUE HEARING DECISION AND ORDER

ADJUDICATOR: Tanjoyt Deol

APPEARANCES:

For the Applicant: Joseph Obagi, Counsel

For the Respondent: Cody Moskovitz, Counsel

Heard: By Way of Written Submissions

OVERVIEW

1Matthew Petch (the "applicant") was involved in an automobile accident on March 9, 2019, 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 ("TD") and applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the "Tribunal") for resolution of the dispute.

PRELIMINARY ISSUE IN DISPUTE

2Is the applicant 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 ("IE") under section 44 of the Schedule?

RESULT

3The applicant is barred from proceeding with his application.

BACKGROUND

4The applicant was involved in an accident on March 9, 2019.

5The applicant resided in Ontario until approximately March of 2023, when he moved to British Columbia.

6An application for Determination of Catastrophic Impairment ("OCF-19") was prepared by Dr. Shawn Marshall, Physical Medicine and Rehabilitation Specialist. Included with this OCF-19, was a section 25 psychology assessment report prepared by Dr. Paul Mendella, psychologist, and neuropsychologist, who opined that the applicant suffered at least a Class 4 (Marked Impairment) in all four domains, and thus sustained a catastrophic impairment.

7On October 4, 2023, TD denied the applicant's OCF-19, and advised that it would schedule IEs pursuant to s. 44 of the Schedule.

8On January 15, 2024, TD sent a Notice of Examination ("NOE"), that advised the applicant that an Occupational Therapy Assessment and Situational Assessment were scheduled in person in Ontario for February 10, 2024, and February 11, 2024. The NOE also advised that a virtual psychiatry examination was scheduled for March 20, 2024, and that the applicant's attendance would not be required for a pre-screen review report.

9On January 16, 2024, the applicant (through his counsel) advised TD that he had moved to British Columbia, early last year and provided his current address. The applicant's counsel also requested that the IEs be rescheduled to take place in his home in British Columbia.

10On January 16, 2024, TD inquired with its section 44 assessment vendor whether there are any assessors in British Columbia that could conduct the catastrophic examinations.

11On the same day, the assessment vendor advised TD that these assessments could not be accommodated in British Columbia, however they could schedule the assessment in-clinic and arrange flight/hotel accommodations for the applicant.

12According to the log notes provided by TD, on January 16, 2024, a phone call discussion took place between the adjuster and the applicant's representative office. The adjuster advised during this call, that they did not have assessors in British Columbia, but would be willing to fly the applicant to Toronto to complete the assessments in a clinic setting. The applicant's representative office advised that they believed the applicant was not able to fly at this time. The only explanation provided for this belief was because when the applicant moved out of province, he drove by himself, and his wife flew.

13In a similar vein, the applicant's representative office advised that if the applicant traveled to Ontario, he would be bringing his wife as he cannot travel by himself, however no further explanation or clarification was provided for this.

14On January 19, 2024, the applicant's counsel advised TD that they did not agree to the applicant travelling out of province for the assessment, and that the IEs should be rescheduled to take place in British Columbia.

15On January 25, 2024, TD sent another NOE, which confirmed that the Occupational Therapy Assessments would still take place in Ontario.

16On January 31, 2024, TD acknowledged the applicant's refusal to attend the Occupational Therapy IEs. TD further advised that it was unable to set up assessments in British Columbia but had agreed to provide transportation to the assessments. Lastly, TD advised that if the applicant agreed to attend, he could contact the assessment vendor and provide dates/times to reschedule the IEs. To date, the applicant has not contacted either TD or the vendor to provide his availability to reschedule the IEs.

ANALYSIS

Parties' Positions

17TD argues that the applicant has failed to attend the Occupational Therapy In-Home Assessment and Situational Assessment, despite receiving proper notice in accordance with s. 44(5). Moreover, it argues that it contacted its assessment vendor to schedule the IEs in British Columbia, and once it was advised that this was not possible, it offered to pay for the applicant's flight and hotel expenses. As such, TD takes the position that it was compliant under s. 44(9)2i, as it took reasonable efforts to schedule the IE in a location convenient to the applicant. Ultimately, TD argues since it was compliant with both ss. 44(5) and 44(9)2i, the applicant is statute-barred under s. 55.

18In response, the applicant argues that TD did not make reasonable efforts to schedule the IEs in British Columbia, which is the location that is convenient for him. Further, he relies on an affidavit from his spouse, dated June 12, 2024 which he argues identified extensive functional and logistical concerns associated with attending the proposed IEs in Toronto. As such, the applicant argues that TD's continued insistence on requiring him to attend the proposed IEs in Toronto is unreasonable and contrary to the consumer protection nature of the Schedule.

The Law

19Section 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.

20Section 44(9)2i requires the insurer to make reasonable efforts to schedule the examination for a day, time, and location that are convenient for the insured person. In turn, pursuant to section 44(9)2iii the insured person shall attend and submit to all reasonable physical, psychological, mental, and functional examinations requested by the person(s) conducting the examination.

21The onus is on TD to establish that it made reasonable efforts to schedule the IEs at a location that was convenient for the applicant.

22Section 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.

The applicant is non-compliant with s. 44

23I find that the applicant is non-compliant with his obligation to attend IEs pursuant to s. 44, and therefore he is barred from proceeding with his claim under s. 55 of the Schedule.

24While I am not bound by previous Tribunal case law, the Tribunal has been consistent in its findings that in scheduling an IE under s. 44, there is no requirement for any input or consent from the applicant. The right to an IE is exclusively at the discretion of TD as long as; (a) the IE is reasonably necessary, (b) the requirements of the notice are in accordance with s. 44, and (c) that the IE is in accordance with s. 44(9) to make reasonable efforts to schedule the examination for the day, time and location that is convenient for the applicant (see: J.C. v. Aviva General Insurance Company, 2020 CanLII 80298 (ON LAT), Fard v. Economical Insurance, 2022 CanLII 8681 (ON LAT), and Noble v. Economical Insurance, 2024 CanLII 38458 (ON LAT).

25The applicant does not raise any issues with respect to whether the IE is reasonably necessary or whether the notice provisions in s. 44 were complied with. Instead, he argues that TD did not comply with s. 44(9)2i, as it did not schedule the IEs in British Columbia, which is the location most convenient for him. Thus, the crux of the dispute before me, is whether TD took reasonable steps to schedule the IEs for a location that was convenient for the applicant, and I find that it did.

26First, the convenience of the location is based on reasonableness, and not perfection. I acknowledge the applicant's position that TD's single inquiry with the assessment vendor is insufficient to satisfy its onus under s. 44(9)2i, because it did not take steps to contact other assessment companies, or independent healthcare practitioners, nor did TD ask the assessors why they could not travel.

27I disagree; in my view, TD's steps in contacting the assessment vendor, and agreeing to pay for the travel/hotel expenses constitute reasonable efforts. In my interpretation, requiring TD to contact other assessment companies or healthcare practitioners would be unduly onerous, and not the intent of s. 44(9)2i. Similarly, s. 44(9)2i states that TD shall make reasonable efforts, not the assessment company. Therefore, I disagree that there is an obligation for TD to ask the assessors why they could not travel, instead, it was required to make reasonable efforts, which it did.

28It is also well-settled that an insurer is entitled to select its own examiner without interference from an insured person, as long as it took reasonable steps to schedule it for a location convenient to the applicant, which I find has been done here.

29Next, I find that TD made reasonable efforts, based on the information that was provided by the applicant at that time. I am alive to the applicant's position that TD only gave him three weeks notice to be able to make arrangements to get to Toronto, and that to arrange such a trip requires significant planning and involvement of the applicant's spouse. However, these concerns were raised for the first time at the case conference and in his written submissions and not communicated to the respondent previously in either the phone call that took place on January 16, 2024 or the correspondence of January 19, 2024.

30Instead, TD was advised that the applicant may not be able to fly and that counsel did not agree to the applicant travelling out of province for an assessment. Therefore, I disagree that this constitutes unreasonable and reprehensible conduct on behalf of TD, as it made reasonable efforts based on the limited information provided by the applicant.

31I also acknowledge the applicant's position that simply offering flight/travel accommodations does not relieve TD of its statutory obligation under s. 44(9). Nevertheless, in my opinion, TD contacting the assessment vendor, offering to pay, and coupled with the fact that the applicant provided limited information on why he could not attend, satisfies TD's onus under s. 44(9).

32I also agree with the respondent's position that there are concerns with respect to whether a health care provider licensed in British Columbia would be certified to address the complexity of a catastrophic determination. Section 44(1) requires that assessor's chosen by the insurer to conduct the assessment must be a "regulated health professional", which is defined in section 3, as a "profession governed by a College as defined in the Regulated Health Professions Act, 1991", which is Ontario legislation that governs the colleges of regulated health professionals in the province. The Schedule clearly requires that section 44 assessments be performed by health professionals regulated by professional colleges in Ontario.

33I am also not bound by the authorities cited by the applicant, and I find that these cases are distinguishable from the matter before me.

34For instance, Jaroo v Economical Mutual Insurance Co, 2023 CanLII 7285 (ON LAT) ("Jaroo"), pertained to a case where the applicant's representative had requested that the IE be rescheduled to a Monday after 2:00 PM, and there was no evidence that the insurer attempted to do so. Unlike the insurer in Jaroo, TD took steps to contact the assessment vendor to see if the IEs could be scheduled in British Columbia. Thus, I disagree that the applicant was placed in a situation where he was set up to fail despite communicating his needs.

35In Kravic v Aviva Insurance Canada, 2023 CanLII 30789 (ON LAT), the applicant resided in Sault Ste. Marie, however no assessors were willing to travel there to conduct the assessment. As such, the respondent made arrangements to schedule the IE in Toronto, however, due to Covid-19 concerns the applicant proposed the location of Sudbury instead. The Tribunal held that the insurer did not meet its onus under s. 44(9) because the applicant had provided an alternative, more convenient location, yet the insurer insisted that she fly to Toronto, which was not reasonable. In the matter before me, the applicant has only provided the location of British Columbia, and TD was advised by the assessment provider that they were unable to accommodate this. In any event, requesting that an IE take place in another city in Ontario, is not the same as requesting that it take place in a different province.

36In short, I am satisfied that the respondent met its onus under s. 44(9). TD not only contacted the assessment vendor, but it also agreed to pay for the travel/hotel expenses once it became aware that the IEs could not be scheduled in British Columbia. The applicant also provided limited information on why he was unable to attend the IEs nor did he refer TD to medical evidence, to establish why he could not attend.

37I now turn to the applicant's arguments, with respect to the significant hardship that will result to him and his family, by attending the IEs in Toronto. I acknowledge that the applicant's wife in the affidavit has raised functional and logistical concerns for the applicant if he was required to travel to Ontario, and the hardships on her family, as they would be required to travel with him.

38I will start with the significant hardship to the applicant, first.

39While the applicant is correct that the Schedule is consumer-protection legislation, he has not referred me to a medical opinion that demonstrates he is unable to travel to Ontario, either by plane or driving. I am aware of the evidence provided by the applicant, his spouse, and the s. 25 catastrophic assessors, with respect to his difficulties with: planning, organizing, decision making, relying on his wife for support; poor time management, forgetfulness, that travel is stressful for the applicant, difficulty with adapting to environmental stimuli, and meal preparation.

40However, the applicant's spouse in the affidavit, in my view, has conceded that the applicant can travel to Ontario, so long as she travels with him, to provide the necessary support to attend the IEs. Likewise, the applicant has conceded that when he moved from Ontario to British Columbia, he made the trip by driving himself. While I acknowledge his submissions that in order to complete this trip, it required significant planning and involvement of his spouse, it is unclear to me why he cannot attend an IE with the necessary planning.

41In a similar vein, the applicant and his spouse reported to Dr. Mendella, that the family travelled by car in March of 2022 to Myrtle Beach, which is a three day trip. Aside from both the spouse and the applicant noting that he was not able to drive long, was jumpy, and on high alert, the family was able to complete the trip.

42While I acknowledge the applicant's spouse in her affidavit has raised concerns whether the proposed IEs would be reliable, as the applicant will face significant disruption in travelling to Toronto, however, I have not been referred to a medical opinion that supports this.

43To summarize, I do not find that the applicant would face significant hardship if he had to travel to Ontario, as he has made two long road trips previously and the difficulties he may face can be mitigated by his wife travelling with him.

44I also agree with the respondent that the impact the family may face from the applicant attending the IEs is not a relevant consideration under s. 44. Section 44(9)2i indicates that the location is to be convenient for the insured person, not his family. I am sympathetic to the hardships the applicant's spouse and children will likely face in having to make this trip to Ontario, however the applicant has not referred me to any section of the Schedule or case law that supports that he does not have to attend an IE on this basis.

45Rather, the authorities cited by the applicant, speak to reducing economical dislocation and hardship for motor vehicle accident victims, not their families (see: Arts v. State Farm Insurance Company, 2008 CanLII 25055 (ON SC), and Tomec v. Economical Mutual Insurance Company, 2019 ONCA 882.

46Under s. 55(2) of the Schedule, the Tribunal has discretion to permit the applicant to proceed with his application despite not attending an IE. However, the applicant made no submissions on why the Tribunal should apply its discretion under s. 55(2). In light of this, I find that there is an insufficient basis to permit the application to proceed under the provision of s. 55(2) of the Schedule.

47Based on all these reasons, the applicant was non-compliant with s. 44, and therefore he is barred from proceeding with his claim under s. 55 of the Schedule.

ORDER

48The applicant is barred from proceeding with his application pursuant to s. 55 of the Schedule.