Citation: Israel v. Allstate Insurance Company of Canada, 2025 ONLAT 24-005781/AABS-PI
Licence Appeal Tribunal File Number: 24-005781/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:
Emmanuel Israel
Applicant
and
Allstate Insurance Company of Canada
Respondent
PRELIMINARY ISSUE HEARING DECISION AND ORDER
ADJUDICATOR:
Kate Grieves
APPEARANCES:
For the Applicant:
Ivy So, Paralegal
For the Respondent:
Nathan M. Fabiano, Counsel
Heard:
By Way of Written Submissions
OVERVIEW
1Emmanuel Israel (the “applicant”) was involved in an automobile accident on November 4, 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 Allstate Insurance Company of Canada (the “respondent”).
2The applicant filed an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute, seeking a determination on the applicability of the MIG, entitlement to non-earner benefits, and three treatment plans.
PRELIMINARY ISSUE IN DISPUTE
3The preliminary issue to be decided is:
i. Is 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 under section 44 of the Schedule?
RESULT
4The applicant may proceed with his application with respect to the Minor Injury Guideline (MIG) and the medical benefits in dispute.
5The applicant is barred from proceeding with his claim for non-earner benefits.
ANALYSIS
Background
6By letter dated June 20, 2022 the respondent delivered a notice of examination seeking a physiatry assessment and a psychological assessment to assess his entitlement to benefits beyond the Minor Injury Guideline (MIG), the treatment plans in dispute, and non-earner benefits. By letter dated July 6, 2022, the respondent advised the applicant of a new date for the physiatry assessment. The applicant did not attend either of the assessments.
7In January 2023 the applicant’s representative requested that the examinations be rescheduled.
8A new notice of examination was sent to the applicant by letter dated February 6, 2023. At some point prior to the physiatry IE scheduled for March 2, 2023, the assessment facility reached out to the applicant to confirm his attendance, and he advised that he could not attend. The IE was cancelled, and the respondent advised that it would not reschedule any examinations until it was provided with confirmation of the date and time that the applicant was available to attend. The psychology IE assessor cancelled his assessment. The respondent advised the applicant of the cancellation and requested that he provide dates to attend a further IE.
Parties’ Positions
9The respondent submits that the applicant failed to attend an insurer’s examination (IE) with a psychologist and a physiatrist, as well as the rescheduled physiatry IE. The respondent submits that it provided sufficient notice and reasons for the section 44 IEs, and that it required the examinations to determine the applicant’s entitlement to the benefits in dispute.
10The applicant submits that the notices for the IEs do not comply with the requirements of section 44, because they failed to provide sufficient “medical and other reasons” for the examination.
The Law
11Section 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. Section 44 provides certain requirements for an insurer to comply with in order to invoke its rights to an IE.
12The requirements for a Notice of Examination are set out in section 44(5) of the Schedule:
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.
13Section 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.
14These provisions of the Schedule make it clear that the applicant has a duty