Citation: Petch v. TD General Insurance Company, 2025 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:

Brian Norris

APPEARANCES:

For the Applicant:

Joseph Y. 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 from TD General Insurance Company (the “Respondent”) pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”).

2The Applicant claimed to have sustained a catastrophic impairment as a result of the accident. The Respondent denied the Applicant’s claim. The Applicant disagrees with this decision by the Respondent and applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

ISSUES IN DISPUTE

3The preliminary issue to be decided in this hearing is:

1 Is the Applicant barred from proceeding to a hearing for all of the benefits claimed in this application because he never attended an insurer’s examination under section 44 of the Schedule?

4The substantive issues are:

1 Has the Applicant sustained a catastrophic impairment as defined by the Schedule?

2 Is the Respondent liable to pay an award under section 10 of Regulation 664 because it unreasonably withheld or delayed payments to the Applicant?

3 Is the Applicant entitled to interest on any overdue payment of benefits?

RESULT

5I find that the Applicant may proceed with his application on the substantive issues because the Respondent failed to make reasonable efforts to schedule the examination for a location that is convenient to the Applicant.

BACKGROUND

6The Applicant claims he was catastrophically injured in the subject accident and submitted an application for a determination of catastrophic impairment on September 26, 2023. His claim for the determination is based on criterion 8, mental and behavioural impairments. In response to the application, the Respondent requested the Applicant attend insurer’s examinations (“IEs”), pursuant to section 44 of the Schedule.

7The examinations were scheduled to occur in 2024. By letter, dated January 15, 2024, the Respondent advised the Applicant that one IE was scheduled to occur virtually and two occupational therapy assessments were scheduled to occur at the Applicant’s home in Ontario. However, the Applicant relocated to British Columbia (“BC”) in March 2023.

8In a responding letter, dated January 16, 2024, the Applicant requested that the IEs be rescheduled to take place in BC.

9The Respondent advised the Applicant’s counsel via telephone call that the assessment vendor had no assessors available in BC and advised that it would pay for the Applicant to fly from BC to Toronto for the IE, and that it would pay for accommodations in Toronto.

10By letter dated January 18, 2024, counsel for the Applicant maintained that the IEs should be rescheduled to occur in BC. In response, on January 31, 2024, the Respondent advised the Applicant that it is denying his claim for a catastrophic impairment determination as a result of a refusal to attend IEs in Toronto.

11To-date, the Applicant has not attended the occupational therapy assessments.

12At issue is whether the Respondent made reasonable efforts to schedule the examination for a day, time, and location that are convenient for the Application, pursuant to section 44(9)(2)(i) of the Schedule.

ANALYSIS

13Section 44(1) of the Schedule permits the Respondent to examine the Applicant by one or more regulated health professionals to determine whether he is sustained a catastrophic impairment as a result of the accident. Section 44(9)(2)(i) of the Schedule provides that, if the Applicant’s attendance is required at the examination, the Respondent shall make reasonable efforts to schedule the examination for a day, time and location that are convenient for the insured person.

14For the following reasons, I find that the Respondent has not made reasonable efforts to schedule the examination for a location that is convenient for the Applicant, pursuant to section 44(9)(2)(i) of the Schedule. Accordingly, I find that the Applicant is not barred from proceeding with his application, pursuant to section 55 of the Schedule.

15This matter turns on the Respondent’s refusal to inquire with a different IE vendor as to whether IEs could be conducted in BC. The eClaims workflow provided by the Respondent shows that the Respondent asked an IE vendor if any assessors could conduct the IE in BC. The vendor advised that it had no assessors in BC and that the assessment would need to take place in the clinic in Toronto and that they would need to arrange a flight and accommodation for the Applicant. This is the only effort to accommodate the Applicant’s location that the Respondent made when scheduling the IE. There is no evidence that the Respondent made more than a single inquiry into whether the IE could be conducted in BC. While I acknowledge that it asked the IE vendor if any assessors were available in BC, I am unable to look past the fact that it made no other inquiry, such as with a different IE vendor, into whether an assessment could be conducted in BC. In my view, contacting another vendor to inquire the feasibility of conducting an IE in BC is consistent with reasonable efforts to schedule the IEs for a location that is convenient to the Applicant.

16That the Applicant drove from Ontario to BC in 2023 does not upset the fact that the Respondent failed to make reasonable efforts to accommodate him. The Respondent suggests that the Applicant can travel and submits that he has not produced objective evidence demonstrating that he receives substantial attendant care assistance to support the need to be examined in BC or that he would require someone to travel with him to Toronto for the examination. I find that the Applicant’s needs for accommodation, in terms of a personal support worker or his wife accompanying him, is a non-factor because the Respondent never made reasonable efforts to schedule the examination in BC. The situation would be different had the Respondent made reasonable efforts but remained unable to schedule the examination in BC.

17The Respondent’s efforts to accommodate the Applicant by way of flying him to Ontario for the assessment are insufficient in light of its failure to seek an alternative assessment vendor. Indeed, flying the Applicant to Ontario and paying for his accommodations would be a reasonable solution had the Respondent sought accommodation from more than just one IE vendor and was still unable to arrange for the assessment. However, there is no evidence of such reasonable efforts before me.

18This is not to say that the Respondent must schedule the IEs in BC. Rather, it must make reasonable efforts to schedule the IEs in BC because that is a location that is convenient to the Applicant. Here, the only effort made by the Respondent to accommodate the Applicant in a location convenient to him is that it asked one IE vendor if it is able to conduct an IE in BC. There is no evidence before me demonstrating that the Respondent any other effort to conduct the assessment in BC. The Respondent has exclusive control and choice over the IE vendor, but the vendor choice does not exempt the Respondent from making reasonable efforts to accommodate the Applicant’s location.

19Having concluded that the Respondent has not made reasonable efforts to schedule the examination for a location that is convenient for the Applicant, I find that the Applicant is not barred from proceeding with his application to the Tribunal.

CONCLUSION AND ORDER

20The Applicant is permitted to proceed with his Application on the substantive issues because the Respondent failed to comply with its obligations outlined in section 44(9)(2)(i) of the Schedule.

21The Tribunal will schedule the substantive issue hearing and notify the parties accordingly.