Licence Appeal Tribunal
Licence Appeal Tribunal File Number: 24-010142/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:
Hussnain Elahi
Applicant
and
Intact Insurance Company
Respondent
PRELIMINARY ISSUE HEARING DECISION AND ORDER
ADJUDICATOR:
Kate Grieves
APPEARANCES:
For the Applicant:
Mariana Slomyanski, Counsel
For the Respondent:
Robbie Brar, Counsel
Heard:
By Way of Written Submissions
OVERVIEW
1Hussnain Elahi (the "applicant") was involved in an automobile accident on October 10, 2019 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 Intact Insurance Company (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 Minor Injury Guideline ("MIG"), entitlement to two treatment plans, and interest.
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 is barred from proceeding with his claims.
PROCEDURAL ISSUE
5The applicant did not file any submissions for the preliminary issue hearing. The case conference report and order (CCRO) identified the preliminary issue, indicates that it was to be heard prior to the substantive issues, and set out a timetable for the parties' submissions. I am satisfied that the applicant received notice of this preliminary issue hearing, given that he was present at the case conference along with his counsel, and the CCRO was sent to the addresses on file. Despite this order no submissions were filed on behalf of the applicant.
ANALYSIS
Background
6The applicant was removed from the MIG as of March 2020. The applicant disputes his entitlement to a chronic pain assessment and a psychological assessment. Upon receipt of the treatment plans in September 2023, the respondent delivered notices of examination seeking an assessment with a general practitioner and a psychological assessment. The applicant was sent a scheduling reminder of the upcoming assessments in October 2023. The applicant did not attend either of the assessments. Both assessments were rescheduled, and the applicant again failed to attend.
7The respondent advised that it would not reschedule any examinations until it was provided with confirmation in writing that the applicant would attend and provide a reasonable explanation as to why he could not attend the previously scheduled IEs.
8The 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.
The Law
9Section 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.
10The 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.
11Section 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.
12These provisions of the Schedule make it 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. The respondent must first prove that a Notice of Examination is compliant with section 44(5) of the Schedule in order to rely on it as a basis to seek a statutory bar under section 55. In seeking such a remedy, the respondent must ensure that it provides specific details of the applicant's conditions, the benefit in dispute, and any section it relies upon. (See Hedley v. Aviva Insurance Company of Canada, 2019 ONSC 5318; B.H. v. Aviva Insurance Company, 2018 CanLII 84051 (ON LAT); and T.F. v. Peel Mutual Insurance Company, 2018 CanLII 39373 (ON LAT)). The reasons must be clear enough so that an unsophisticated person can make a well-informed decision on whether to attend the examination.
The notice with respect to the psychological assessment is valid
13I have reviewed the notice provided by the respondent with respect to the psychological assessment and find that it meets the standard set out in T.F. v. Peel Mutual Insurance Company. The September 28, 2023 notice identifies the plan in dispute, and notes that almost four years had elapsed since the accident, and his need for assessments and treatment had likely reduced. Given its review of the accident benefits file, the medical diagnosis and prognosis, the respondent wanted to determine if further assessment was warranted for his injuries.
14It set out the date, time and location of the assessments, the name and specialization, and indicates that the applicant's attendance was required. It provided sufficient medical and other reasons for the assessment. The notice was adequate enough for an unsophisticated person to make an informed decision as to whether to accept or dispute the decision.
The notice with respect to the chronic pain assessment benefits is valid
15The notice provided by the respondent with respect to the chronic pain assessment is also valid. Similar to the foregoing, the October 4, 2023 notice identifies the plan in dispute, notes that almost four years had elapsed since the accident, and his need for assessments and treatment had likely reduced. Given its review of the accident benefits file, the medical diagnosis and prognosis, the respondent wanted to determine if further assessment was warranted for his injuries.
16It provides a valid medical reason for the assessment given the time elapsed since the accident. It set out the date, time and location of the assessments, the name and specialization, and indicates that the applicant's attendance was required. The notice was adequate enough for an unsophisticated person to make an informed decision as to whether to accept or dispute the decision.
17The notices with respect to the disputed benefits met the requirements of section 44 because they provided adequate reasons to support the need for the IEs. The applicant has not attended the assessments, despite having received compliant notices. Therefore, pursuant to section 55, the applicant is precluded from proceeding with his application for non-earner benefits as he failed to attend properly scheduled IEs.
ORDER
18The notices with respect to the benefits were compliant with section 44 of the Schedule. The applicant is barred from proceeding with his claim for benefits under section 55 of the Schedule.
Released: April 3, 2025
Kate Grieves
Adjudicator