Licence Appeal Tribunal File Number: 25-004132/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:
Gabriella Lengyel
Applicant
and
Certas Home and Auto Insurance Company
Respondent
PRELIMINARY ISSUE DECISION
ADJUDICATOR:
Trina Morissette, Vice-Chair
APPEARANCES:
For the Applicant:
Self-represented
For the Respondent:
Philippa G. Samworth, Counsel
HEARD:
In writing
OVERVIEW
1Gabriella Lengyel, the applicant, was involved in an automobile accident on April 6, 2018, and sought benefits from Certas Home and Auto Insurance Company, the respondent, 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 and applied to the Licence Appeal Tribunal (“the Tribunal”) for resolution of the dispute.
PRELIMINARY ISSUE IN DISPUTE
2The preliminary issue to be decided is whether the applicant can proceed with her application for catastrophic impairment (“CAT”), and any benefits that flow from being designated CAT, when she refused and/or was unable to attend any insurer’s examinations (“IEs”) pursuant to section 44 of the Schedule?
RESULT
3The applicant is statute-barred from proceeding with her application pursuant to section 55(1)2 of the Schedule.
BACKGROUND
4On April 6, 2018, the applicant was driving her vehicle through a parking lot at a gas station when it was struck by another driver.
5On March 2, 2025, an OCF-19 was submitted by the applicant’s family physician, Dr. Kavouris, indicating a finding of CAT under Criteria 6, 7 and 8. No reports were submitted with the OCF-19.
6The applicant is a self-represented party.
7This matter is further complicated by the fact that the applicant was involved in a prior accident on November 3, 2011, in which a different insurer deemed her CAT. The claim was settled through a court approved settlement.
8This matter also has a lengthy history with the Tribunal. The current application is the third application in which the applicant is seeking a CAT determination.
9The applicant’s first application to the Tribunal was dismissed on December 14, 2021 for failing to attend scheduled IEs. In an earlier Motion Order dated July 21, 2021, the Tribunal found that the applicant failed to attend a section 44 psychiatric assessment. At that time, the Tribunal ordered that the application be stayed pending the completion of a rescheduled psychiatric IE. Due to the applicant’s continued failure to attend the psychiatric and other IEs, the Tribunal considered and granted the respondent’s subsequent motion to dismiss the application in a Motion Order dated December 14, 2021. The applicant appealed the dismissal which was denied on reconsideration, dismissed at the Divisional Court and subsequently dismissed at the Supreme Court of Canada.
10A second application for CAT was filed on September 17, 2024. The application proceeded to a case conference and was set down for a preliminary issue hearing. On January 22, 2025, the applicant withdrew her application.
11This is the applicant’s third application to the Tribunal.
ANALYSIS
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.
13The requirements for a Notice of Examination (NoE) are set out in section 44(5) of the Schedule:
i. 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.
14Section 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 onus is on the insured person to put forth a reasonable explanation for non-attendance at an IE. The Tribunal may, under section 55(2), permit an insured person to apply to the Tribunal despite a failure to comply with section 44, subject to terms and conditions.
15The respondent submits that it has rescheduled various section 44 assessments (psychiatry, physiatry, neuropsychology and occupational therapy) since the applicant’s first application, but the applicant has not attended any IEs since her first application was dismissed in 2021. It argues that it has attempted to work with the applicant and has offered multiple accommodations such as: transportation to and from appointments; a reader in the language if she requires one; a translator if required; a virtual assessment if possible; and longer assessments to be split over two days. It has also invited the applicant to communicate any other accommodations she might require. The applicant made one request, that her IEs be conducted by female assessors, which was accommodated by the respondent.
16The respondent submits that the application should be dismissed because the applicant has refused, or, as the applicant argues, has been unable to attend any of the scheduled IEs. In the alternative, the respondent requests a stay of the application until the applicant complies with section 44 of the Schedule.
17The applicant’s submissions are challenging to ascertain but based on what she has filed with the Tribunal, I infer that she submits it is crucial that she be designated CAT and that this finding is supported by the medical evidence. The applicant also challenges the compliance of the NoEs and submits that the respondent provided insufficient, incorrect and misleading information to the Tribunal. She relies on section 55(2) of the Schedule to argue that the Tribunal may permit her to proceed with her application despite her failure to comply with section 44. She argues that she is not fit to attend IEs because she was seriously injured in the subject accident.
18The 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. To be clear, the respondent must first establish that a NoE complies with section 44(5) of the Schedule in order for it to rely on it as a basis to seek a remedy pursuant to section 55.
Are the NoEs in compliance with the Schedule?
19I find that the majority of the NoEs are in compliance with the Schedule.
20The respondent submitted 15 NoEs sent to the applicant between April and June 2025. The notices identify assessments in the areas of occupational therapy, neuropsychology, chronic pain, neurology, and orthopaedics. A summary of these NoEs is as follows:
Assessment Date
Specialty
Assessor
May 28, 2025
Neurology
Dr. Dessouki
June 17, 2025
Neurology
Dr. Moddel
June 23, 2025
Occupational therapy
Ms. Macrae
June 23, 2025
Occupational therapy
Ms. Macrae
July 9, 2025
Neuropsychology
Dr. Zakzanis
July 9, 2025
Orthopaedics
Dr. Karabatsos
July 15, 2025
Chronic pain
Dr. Sharma
July 22, 2025
Occupational therapy
Ms. Shum
July 23, 2025
Occupational therapy
Ms. Shum
July 30, 2025
Neurology
Dr. Dodig
September 15, 2025
Neuropsychology
Dr. Nussbaum
September 15, 2025
Neuropsychology
Dr. Nussbaum
September 16, 2025
Neuropsychology
Dr. Nussbaum
September 16, 2025
Neuropsychology
Dr. Nussbaum
October 7, 2025*
General practice
Dr. Platnick
*no attendance required
21I note that duplicates of the occupational therapy assessment scheduled for June 23, 2025, the neuropsychology assessment scheduled for September 15, 2025, and the neuropsychology assessment scheduled for September 16, 2025 were submitted. As such, a total of 12 NoEs were provided to the applicant rather than 15 as submitted by the respondent.
22I also note that the NoE for the orthopaedic assessment scheduled for July 9, 2025 does not provide the location for the assessment nor does it provide an appropriate time – the time indicated is from 9:00 a.m. to 8:00 a.m. For these reasons, I find that the NoE of July 9, 2025 for an orthopaedic assessment is not in compliance with section 44(5) of the Schedule.
23On review of the remaining 11 NoEs and the requirements of section 44(5), I find the letters comply with the requirements for proper notice of an IE. The notices identify the applicant’s claim for CAT, they state that the applicant’s attendance is required (except for the “general practice” assessment of October 7, 2025), provide the date, time and location of the assessment in a clearly formatted table, and provide the identity and professional designation of the assessor who would be conducting the IE. In addition, the notices offer the accommodations noted at paragraph [16] above and explain:
Dr. Kavours has not attached any reports to explain his findings as and how or why you meet the test under section b: criteria 6, 7, 8. We have several medical records and reports that are associated with your accident in 2011. We understand that you have a complicated and long standing pre accident medical history from both a psychological and physical perspective. As per our letter Sept 10, 2019, I continue to maintain the position that we have a lack of compelling medical documentation to support the injuries you sustained as a result of the April 6, 2018 accident meet the definition or threshold of a catastrophic impairment. We do not have medical records from your treating health practitioners beyond 2020, as such I have requested updated medical records.
24I find that the 11 notices identify the relevant benefit, here, the CAT designation, and provide all the information required for proper notice under section 44(5) of the Schedule. I also find that the respondent made reasonable attempts to accommodate the applicant so that she could participate in the IEs pursuant to section 44(9)(2) of the Schedule. In addition, I have also considered the potential issue of causation due to the applicant’s prior accident in 2011 (i.e., whether the injuries claimed were caused by the subject accident), the respondent’s requests for medical documentation, and the absence of any assessment reports provided by the applicant and find that the NoEs meet the threshold of “reasonably necessary”.
Has the applicant provided a reasonable explanation for not attending the IEs?
25The applicant does not dispute that she did not attend the scheduled IEs. Rather, the applicant states that she is not able to attend any IEs due to her serious injuries and she relies on notes provided by her family physician.
26The respondent submits that the applicant has not provided satisfactory reasons for her non-compliance with the notices. It states that these reasons have varied over the course of time and the applicant has a history of avoiding court proceedings and case conferences, as well as IEs, going back long before the 2018 accident.
27Dr. Kavouris, the applicant’s family physician, provided the following handwritten note dated March 20, 2024:
i. Patient exempt today / not fit to participate in the Tribunal proceeding on April 3/24 including written proceeding. Patient suffers from several medical conditions triggered by the Tribunal action. This interferes with patient safety and recovery in(sic) result the patient referred to multiple specialists which proceeds to prejudice the patient’s health [illegible] further health deterioration. Her recovery/prognosis is unknown.
28A handwritten note of May 12, 2024 by Dr. Kavouris states:
i. Patient evaluated today. She has not recovered from her injuries. She is unfit to attend/participate in court proceedings, or conference proceedings, examination for discovery until further notice and beyond the court date of July 30/24. Due to her severe ongoing symptoms due to her medical conditions [illegible] these proceedings cause distress and health deterioration. Please communicate with patient in writing.
29Dr. Kavouris’ most recent note dated March 3, 2025 states:
i. Assessed today for urgent issues / case management / physio / TBI post concussion syndrome / SCI / PTSD / MDD / neuro speech pathology, rehabilitation for post concussion, recently sustained fracture R foot (Jan/25).
30The respondent argues that despite the applicant’s allegation that she is unable to attend IEs, she continues to attend other medical appointments.
31I have reviewed the available clinical notes and records of Dr. Kavouris and note that the applicant attended a follow-up appointment with Dr. Pace, on May 28, 2024 (two weeks following Dr. Kavouris’ note of May 12, 2024) to address her kidney stone and another follow-up on August 13, 2024. She also attended Dr. Kavouris’ office nine times between November 2024 and August 2025.
32The respondent further submits that the applicant has not provided any reports to support that she should be deemed CAT and it has had no opportunity to assess the validity of the applicant’s complaints over the course of the last five years. It argues that it has made every effort to meet the applicant’s requests for accommodation but historically, the applicant has consistently declined to attend them.
33The applicant submits that she attended nine CAT assessments at the request of the respondent. The respondent disagrees with the applicant and notes that a CAT occupational therapy in-home assessment was done on January 13, 2020, and an incomplete psychiatric assessment performed in the applicant’s home was attempted on June 14, 2019 but was not completed. No further IEs were done.
34I am sensitive to the applicant’s condition and recognize that she was deemed CAT following her accident in 2011. I also recognize that the applicant likely participated in many CAT assessments in relation to her prior accident and might be confusing those assessments with the ones being requested by the respondent, which are to determine injuries sustained in the 2018 accident.
35As explained in the Tribunal’s Motion Order of December 14, 2021 (the first application), although it is well within her rights to refuse to attend an IE, a failure to comply with reasonably necessary IEs carries consequences under section 55(1). More specifically, non-attendance at IEs might prevent an insured person from applying to the Tribunal.
36I find that the explanation provided by the applicant that she is unable to attend the scheduled IEs is not supported by the medical documentation. While I acknowledge that the applicant sustained serious injuries following her 2011 accident and she was deemed CAT following that accident, the evidence shows that the applicant continues to attend other appointments such as those with her family physician and Dr. Pace.
37I accept the respondent’s argument that it is being deprived of the right to test the validity of the applicant’s complaints. I find that the respondent would be severely prejudiced if the application proceeds to a hearing without the ability to assess the applicant as it would have no medical evidence of its own to respond to the applicant’s claim. This evidentiary imbalance would also impede the Tribunal’s ability to evaluate the case fairly on the merits. Further, as it is the applicant’s burden to demonstrate entitlement to CAT, allowing the applicant to proceed at this point would also not be beneficial to her since she has no CAT reports of her own to rely on. As there is no limitation period with respect to a claim for CAT, I find that the prejudice to the respondent outweighs that of the applicant, as the applicant may reapply in the future if/when her condition improves, after attending properly scheduled IEs, and after securing CAT reports of her own to meet her burden of proof, should she elect to do so.
38I recognize that the respondent seeks the alternative relief to stay the proceedings until the applicant is able to participate in the IEs. I do not find this alternative relief to be reasonable in these circumstances as Dr. Kavouris’ notes do not indicate any timeframe within which the applicant might be in a position to attend assessments, and the applicant has submitted that, “I the applicant [am] not fit to attend on 44 assessment indefinite”. [emphasis is mine] Ordering a stay at this time would put the application on hold indefinitely.
39I find that the respondent has provided 11 valid NoEs to the applicant, all of which are reasonably necessary in the circumstances, and I am further satisfied that it has made fulsome efforts to accommodate her. When the applicant requested that all assessments be done by female assessors, the respondent rescheduled the assessments to ensure they would be completed by female assessors. The respondent has proposed additional accommodations and invited the applicant to reach out to it if other accommodations were necessary to ensure her attendance. Despite these efforts, the applicant has failed to attend these IEs without a reasonable explanation.
40For these reasons, and pursuant to section 55 of the Schedule, I find that the applicant is statute-barred from proceeding with her application. The application shall be dismissed.
ORDER
41For all the above reasons, I find that:
i. The applicant is statute-barred from proceeding with her application pursuant to section 55(1)2 of the Schedule.
ii. The application is dismissed.
Released: October 22, 2025
Trina Morissette
Vice-Chair