Licence Appeal Tribunal File Number: 25-003862/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:
Yuet Chan
Applicant
and
Belair Insurance Company Inc.
Respondent
PRELIMINARY ISSUE DECISION AND ORDER
ADJUDICATOR:
Trina Morissette, Vice-Chair
APPEARANCES:
For the Applicant:
Deanna S. Gilbert, Counsel
For the Respondent:
Raman Pandher, Counsel
HEARD:
In writing
OVERVIEW
1The spouse of Yuet Chan, the applicant, was involved in an automobile accident on September 26, 2021. The applicant sought benefits from Belair Insurance Company Inc., 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, because she failed to attend insurer’s examinations (“IEs”) under section 44 of the Schedule?
RESULT
3The applicant is not barred from proceeding with her application for a CAT impairment, and any benefits that flow from this designation, pursuant to section 55(1)2 of the Schedule.
4The applicant may proceed with her application to a hearing on the substantive issues, pending her attendance at the future IEs to be scheduled by the respondent.
5Pursuant to section 55(2) and (3) of the Schedule:
i. The respondent shall reschedule the three IEs (psychiatric, occupational therapy in-home assessment, and occupational therapy situational assessment) no later than March 31, 2026, and shall provide the applicant with new Notices of Examination;
ii. The respondent shall be mindful of the rules that apply in respect of section 44 examinations, provided for in section 44(9);
iii. The applicant shall work collaboratively with the respondent to determine her availability to attend the IEs no later than March 31, 2026; and
iv. The parties shall consider filing an adjournment request, on consent, for the videoconference hearing currently scheduled to commence on January 26, 2026, once the details for the applicant’s attendance at section 44 IEs are established. In the adjournment request, the parties shall propose reasonable alternative hearing dates.
BACKGROUND
6The applicant’s spouse was involved in an accident on September 26, 2021 that left him CAT impaired. The applicant began receiving psychological treatment and applied for accident benefits.
ANALYSIS
7Section 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.
8The 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.
9Section 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 (section 55(3)).
10The