Licence Appeal Tribunal File Number: 23-005121/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:
Veroncia Parayno
Applicant
and
Unica Insurance Inc.
Respondent
DECISION
ADJUDICATOR:
Michael Beauchesne
APPEARANCES:
For the Applicant:
Dean Trinetti, Counsel
For the Respondent:
Modupe Egunjobi, Counsel
HEARD:
By way of written submissions
OVERVIEW
1Veroncia Parayno (the “applicant”) was involved in an automobile accident on May 19, 2021, 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 Unica Insurance Inc. (the “respondent”) and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
PRELIMINARY ISSUE
Is the applicant barred from proceeding to a hearing for all of the benefits claimed in her application because she failed to attend an Insurer’s Examination (“IE”) under section 44 of the Schedule?
2I find the applicant’s claim cannot proceed to a hearing. For context, the applicant is disputing the applicability of the Minor Injury Guideline (“MIG”) as well as a treatment plan (OCF-18) for psychological assessment and any interest payable.
3Section 44(1) of the Schedule permits an insurer to require that an insured person be examined by a regulated health professional(s) to help determine if the insured person is, or continues to be, entitled to a claimed benefit. Section 55(1)2 of the Schedule prohibits an insured person from applying to the Tribunal to dispute a benefit 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 with that section. This is to be read in concert with section 55(2) of the Schedule, which enables the Tribunal to permit an application to dispute a claimed benefit despite an insured person’s non-compliance with section 44.
4The respondent submits it issued a notice on July 10, 2023, that requested the applicant attend two in-person IEs—one on Friday, August 18, 2023, at noon with Dr. Nicole Azizli (psychologist) and the other with Dr. Jacqueline Auguste (orthopaedic surgeon) on Wednesday, August 23, 2023 at 11 AM—to evaluate her medical benefit entitlement and removal from the MIG. The respondent says the applicant failed to attend both IEs and subsequently conveyed she could not attend any IEs scheduled on a weekday before 6 PM.
5The respondent submits it issued a second notice to the applicant (dated January 16, 2024) that requested she attend an in-person IE to be conducted by Dr. Kelly McCutcheon (psychologist) at 11 AM on Saturday, March 16, 2024, to assess entitlement to the disputed OCF-18 and MIG applicability. The respondent claims the applicant failed to attend this IE as well, despite having transportation arranged for her by the assessment facility. The respondent adds that the applicant has not provided a reasonable explanation for missing her scheduled IEs, and that it identified this in a subsequent notice dated May 24, 2024, which also informed the applicant that the IE would not be re-scheduled.
6The applicant argues that the transportation arranged for the second IE never arrived to pick her up, and that she was unable to alert the assessment facility to this because she was unable to reach a representative by telephone and instead left a voice mail message. The applicant asserts she was ready and willing to undergo the second IE as scheduled, and that she should not be faulted for non-attendance because the arranged transportation did not arrive at her residence to pick her up.
7Given that both parties agree the applicant failed to attend the IEs as scheduled and are not disputing the adequacy of the respondent’s IE notices or whether the examination is reasonably necessary, this preliminary issue, in my view, turns on whether I should invoke section 55(2) of the Schedule. The Tribunal has generally held that the applicant should provide a reasonable explanation for non-compliance to merit the relief offered at section 55(2) [see, for e.g., 18-002529 v Aviva Insurance Canada, 2019 CanLII 43896 (ON LAT); Silvera v. Aviva General Insurance, 2021 CanLII 35585 (ON LAT); and Coladonato v Aviva Insurance Company, 2023 CanLII 42651 (ON LAT]. While I am not bound by these decisions, I am persuaded by their consistent interpretation of how to apply section 55(2), which is reinforced in Noble v. Economical Insurance Company, 2024 ONSC 6985 (“Noble”). Noble is a recent Divisional Court decision that upholds a Tribunal decision to dismiss an application for IE non-attendance that the applicant failed to reasonably explain. Although the Court does not expressly or directly engage with the language of “reasonable explanation” in the IE non-attendance context, it finds no error in the way the Tribunal exercised its discretion under section 55(2). In my view, this supports the Tribunal’s long-held principle that the requirement for a reasonable explanation for IE non-attendance accords with the proper exercise of discretion under section 55(2).
8The applicant’s submissions offer no reason for non-compliance with the first IE notice that scheduled examinations to occur in August 2023. While the respondent’s submissions indicate that the applicant advised, after missing the IEs, that she was unavailable to attend examinations scheduled before 6 PM on weekdays, the respondent disputes the reasonableness of this explanation. I agree. The applicant’s submissions do not point to evidence of an explanation for her unavailability before 6 PM on weekdays. That the respondent proceeded to re-schedule the IEs for a Saturday does not, in my view, cure the applicant’s failure to reasonably explain why she could not attend the earlier IEs scheduled before 6 PM on weekdays.
9Similarly, I find the applicant failed to provide a reasonable explanation for missing the second IE scheduled to occur on March 16, 2024. Both parties agree that the applicant’s transportation to the examination was arranged by the assessment facility (“Viewpoint”), and the respondent produced a May 2024 letter to Viewpoint from the transportation provider that explains the details of transportation on the scheduled day of the IE. In their submissions, the parties provided contrasting accounts of what happened that day: (1) the respondent submits, on the basis of the letter provided to Viewpoint by the transportation provider, that the arranged transportation arrived 10 minutes early, made unsuccessful attempts to contact the applicant at the door of her residence, and waited outside the applicant’s home for 30 minutes past the scheduled pick-up time before leaving; and (2) the applicant submits the arranged transportation never showed up at her residence and her attempt to alert Viewpoint to this via phone was unsuccessful.
10While the respondent produced evidence (i.e., the May 2024 letter to Viewpoint from the transportation provider) that I find establishes an attempt was made to pick up the applicant and transport her to her IE as scheduled, I diminish the weight of this evidence because the letter did not identify the address of the pick-up attempt. But in my view, whether the transportation arranged by Viewpoint arrived at the applicant’s residence weighs little on the applicant’s duty to attend the IE as requested by the respondent. The applicant does not point to an authority or reference in law that establishes the respondent has a duty to provide transportation. Rather, the requirements of the respondent concerning the attendance of the applicant at an in-person IE are made out at section 44(9)2i and ii of the Schedule, and I find none of these requirements speak to providing transportation to the examination. In my view, it was and remains the applicant’s duty to attend the IE and submit to all reasonable examinations as stipulated at section 44(9)2iii of the Schedule. The applicant’s submissions do not address why it would not be open to her to arrange her own transportation to Viewpoint when it became apparent that the ride she anticipated had not arrived at her home as scheduled. I therefore do not accept that her explanation for missing the IE is reasonable.
11I find, on balance, that the applicant is barred by section 55(1)2 of the Schedule from applying to the Tribunal because she failed to comply with the respondent’s requests to attend IEs in accordance with section 44(1) of the Schedule. I decline to exercise the discretion afforded by section 55(2) of the Schedule because the applicant failed to provide a reasonable explanation for her non-compliance with the respondent’s IE request.
ORDER
12The applicant’s claim is statute-barred under section 55(1) of the Schedule. As I have found that the applicant is precluded from applying to the Tribunal until such time that she attends the IE, I have not embarked on an analysis of the substantive issues in dispute. Accordingly, no interest is payable.
13The application is dismissed.
Released: March 5, 2025
Michael Beauchesne
Adjudicator