Licence Appeal Tribunal File Number: 25-00106/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:
Sakunthala Mahendran
Applicant
and
Allstate Insurance Company of Canada
Respondent
PRELIMINARY ISSUE HEARING DECISION AND ORDER
ADJUDICATOR:
Melanie Malach
APPEARANCES:
For the Applicant:
Jenanii Muhelan, Paralegal
For the Respondent:
Colleen Mackeigan, Counsel
HEARD:
By Way of Written Submissions
OVERVIEW
1Sakunthala Mahendran, the applicant, was involved in an accident on May 1, 2023, 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, and applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
PRELIMINARY ISSUE IN DISPUTE
2The preliminary issue to be decided is:
i. Is the applicant barred from proceeding to a hearing for all of the benefits claimed in this application because the applicant failed to attend an insurer’s examination (“IE”) under s. 44 of the Schedule?
RESULT
3The applicant is not statute barred from proceeding to the substantive hearing due to non-attendance at the scheduled IE.
4The respondent is not required to pay costs to the applicant.
ANALYSIS
The Law – Section 44
5Section 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 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.
6Section 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 s. 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 Insurer’s Examination (“IE”). The Tribunal may, under s. 55(2) of the Schedule permit an insured person to apply to the Tribunal despite a failure to comply with s. 44, subject to terms and conditions.
Background and parties’ positions
7The respondent submits that the applicant has failed to attend a scheduled IE with Dr. Rubenstein, psychologist on May 13, 2024. By correspondence dated April 1, 2024, the treatment plan dated February 28, 2024 was denied by the respondent. On April 5, 2024, the respondent provided a Notice of Examination (“NOE”) to the applicant, scheduling an IE with Dr. Rubenstein to take place on May 13, 2024, to address her ongoing entitlement to an IRB, application of the MIG and the treatment plan, dated February 28, 2024. The respondent submits that the applicant did not attend this examination and did not request it to be rescheduled.
8The respondent submits that the NOE was compliant with s. 44(5) of the Schedule. The notice set out in clear and plain language that ongoing entitlement, application of the MIG and the treatment plan dated February 28, 2024, were the basis of the examination. The respondent further argues that the IE was reasonable and necessary as the request came shortly after the treatment plan for psychological services was submitted by the applicant. As the applicant was alleging a psychological injury warranting treatment and removal from the MIG, the request for a psychological assessment is a reasonable nexus to the injuries alleged.
9By way of Explanation of Benefits dated March 12, 2025, in response to a treatment plan for a psychiatric assessment, the respondent confirmed that the applicant did not attend the previously scheduled IE and the applicant had not provided written confirmation as to why she did not attend.
10The respondent submits that to date, the applicant has not provided a reason for her non-attendance at the IE on May 13, 2024, nor has any request for rescheduling been made.
11The respondent further submits that despite not attending the requested IE with Dr. Rubenstein, psychologist, the applicant delivered a s. 25 report completed by Dr. Liu, psychiatrist, dated March 3, 2025.
12The applicant submits that she made multiple attempts to contact the respondent to advise that she was unable to attend the scheduled IE on May 13, 2024, and to request a new IE, but the respondent did not respond to her notice or her request for rescheduling. The applicant submits that on May 7, 2024, a notice was sent by her counsel to the respondent – six calendar days prior to the scheduled IE – advising that the applicant was unable to attend the IE due to scheduling conflicts and requesting that the IE be rescheduled. The applicant submits that as the respondent did not respond to the notice sent by the applicant, her counsel resent the notice to the respondent on May 9, 2024, again confirming that she could not attend and requesting that the IE be rescheduled. The applicant submits that the respondent did not respond to either the May 7, 2024 or May 9, 2024 notices. The applicant submits that due to the respondent’s failure to provide a reasonable rescheduling date, the applicant proceeded with the delivery of a s. 25 report in support of her claim.
13The applicant further submits that at the Case Conference on September 5, 2024, the issue of the applicant missing the IE was raised. In response, the applicant re-sent the original notice requesting that the IE be rescheduled on September 5, 2024. The applicant submits that the respondent again did not respond to this notice.
14In reply submissions, the respondent submits that the applicant in her submissions has provided a copy of the emails that were sent to it on May 7 and May 9, 2024, which had attachments, but did not provide any evidence of what these attachments were. The Tribunal requested a copy of these attachments on June 13, 2025, which were subsequently provided by the applicant.
The applicant provided a reasonable explanation for her non-attendance
15I find that the applicant provided a reasonable explanation for her non-attendance at the scheduled IE and is not statute-barred from proceeding to the substantive hearing.
16I find upon review of the email and attachment from the applicant to the respondent dated May 7, 2024, the applicant advised the respondent that she would not be attending the upcoming IE on May 13, 2024, due to scheduling conflicts. The applicant requested that the respondent reschedule the assessment to a later date. I find that this email was resent to the respondent on May 9, 2024. The respondent has not made any submissions that it was not in receipt of these emails. I further find that the respondent did not reply to these emails and did not reschedule the IE as requested.
17Given that the applicant provided a reasonable explanation for her non-attendance at the scheduled IE and requested that the IE be rescheduled to a later date prior to the IE, I find that the applicant is not statute-barred from proceeding to the substantive hearing in this matter.
Costs
18The applicant’s request for costs is denied.
19Under Rule 19, of the Licence Appeal Tribunal Rules, 2023, the Tribunal may grant costs if it finds that a party acted unreasonable, frivolously, vexatiously or in bad faith.
20The applicant at the conclusion of her submissions claims “costs”. The applicant made no submissions as to why she is entitled to costs or the amount of costs she is seeking.
21I find that merely claiming costs without any further submissions is not sufficient to meet the test for a costs order. The applicant has not provided any submissions or evidence to support that the respondent acted unreasonably, frivolously, vexatiously or in bad faith.
22For these reasons, I find that the respondent is not liable to pay costs to the applicant.
ORDER
23For the reasons set out above, I find that the applicant is not statute-barred from proceeding to the substantive hearing in this matter due to non-attendance at the scheduled IE. As the applicant has not met the test for a cost order, the respondent is not liable to pay costs to the applicant.
Released: June 19, 2025
___________________________
Melanie Malach
Adjudicator