Citation: St John v Intact Insurance Company, 2025 CanLII 61170

Licence Appeal Tribunal File Number: 24-004696/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:

Glen St John

Applicant

and

Intact Insurance Company

Respondent

DECISION

VICE-CHAIR: Neil Levine

APPEARANCES:

For the Applicant: Glen St. John, Applicant Nicholas Whelan, Counsel

For the Respondent: Tamara Di Domenico, Representative Anthea Chan, Counsel

Interpreter: Elizabeth Munian (Guyanese Creole)

HEARD: by Videoconference April 7, 2025

OVERVIEW

1Glen St. John, the applicant, was involved in an automobile accident on April 6, 2022, 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 the respondent, Intact Insurance Company, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

PRELIMINARY ISSUE

2The preliminary issue to be decided is:

i. Is the applicant barred from proceeding with his claim for a psychological assessment because the applicant failed to submit to an insurer’s assessment under s. 44 of the Schedule?

ISSUES

3The issues in dispute are:

i. Are the applicant’s injuries predominantly minor as defined in s. 3 of the Schedule and therefore subject to treatment within the $3,500.00 MIG limit?

ii. Is the applicant entitled to $2,460.00 for a psychological assessment, proposed by 101 Assessments in a plan dated June 24, 2022?

4Prior to the hearing, the parties resolved the other substantive issues in dispute (paragraphs 2, 3, 4, 6, 7, 8, and 9) listed in the Motion Order of March, 13, 2025.

RESULT

5The applicant is statue-barred from proceeding with his application, due to his failure to attend insurer’s examinations under s. 44 of the Schedule. I decline to exercise my discretion under s. 55(2) and (3) to permit him to continue his application despite his non-compliance.

ANALYSIS

Parties’ Positions

6The respondent submits that the applicant failed to attend insurer’s examinations (IEs) to assess his entitlement to the MIG and a psychological assessment. Examinations were rescheduled twice, and the applicant did not attend. The respondent submits that it provided sufficient notice and reasons for the s. 44 IEs, and that it required the examinations to determine the applicant’s entitlement to the benefits in dispute.

7The applicant submits that the notices were deficient or non-compliant with s. 44(5) of the Schedule because the notices did not provide sufficient medical or other reasons to justify the basis for the IEs.

The law

8Section 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.

9The requirements for a Notice of Examination (“NOE”) 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.

10Section 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.

11These 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.

12The respondent must 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 16-003316/AABS 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 respondent’s notices of examination complied with s. 44(5)

13The respondent submits that it had scheduled psychological IEs on September 20, 2022, December 6, 2022 and December 16, 2022 to examine the applicant’s psychological impairments. Notices were sent by mail on June 29, 2022 and September 28, 2022.

14The respondent submits that it was not notified of the reasons for the non-attendance nor was it communicated with afterwards. It should be noted that the applicant does not dispute this. Finally, the respondent submits that it attempted to reschedule the two IEs into a single IE appointment on December 16th, but that appointment, too, was not attended by the applicant.

15The applicant submits that a psychological pre-screening report conducted by Dr. Konstantinos Papazoglu (October 3, 2022), via a telephone interview with the applicant, diagnosed the applicant with possible depression, anxiety and somatic problems or impairments. The applicant submits that because the respondent did not reference this report in its notices and failed to provide medical reasons for the IEs, the notices are non-compliant with s. 44 (5).

16I find the first notice (June 29, 2022) was valid and compliant with the Schedule. It states that the respondent lacks “compelling medical documentation from a health practitioner indicating that you suffer from a psychological impairment requiring treatment.” It also states the date, time and specialty of the assessor, and notes that the applicant’s attendance is required. The respondent confirmed that there were no CNRs provided by the applicant that made any reference to psychological issues at the time the notice was delivered. Section 44(5) requires a respondent to provide “the insured person a notice setting out the medical and any other reasons for the examination.” In this case, the respondent has shown that it did not have compelling medical documentation at the time of denial and has substantiated why it required further information through the scheduling of an IE.

17The June 29, 2022 notice does not refer to Dr. Papazoglu’s OCF-18 and pre-screening report, nor could it, as this report was dated October 3, 2022. The second notice, to reschedule the IE after the applicant failed to attend the first IE, was sent by mail and was dated September 28, 2022. The letter notes the declined treatment plan. The notice, too, was valid, mentions the date, time and specialty of the assessor and notes that the applicant is required to attend. It could not reference the October 3, 2022 Papazoglu report which had not yet been completed.

18A third notice, dated November 14, 2022, was sent by mail and includes the date, time and specialty of the assessor and notes that the applicant is required to attend. It is therefore also valid.

19While the applicant argues that the absence of med records supports that the notices were boilerplate and lacked specificity, I find this argument unpersuasive because an insurer is not required to fabricate a medical reason to justify scheduling an IE where it has not been provided with information to support the claim. Scheduling a s. 44 IE is the very mechanism available to an insurer where it has not been provided with the information to properly and fairly adjust a claim.

20This argument was made to valid effect in, for example, Lulic v. Primmum 2024 CanLII 54025 (ON LAT). However, in this particular case, this reasoning does not apply as the respondent lacks any objective medical evidence or records whatsoever referencing psychological issues.

21Given that the applicant was properly notified and the applicant failed to attend properly scheduled s. 44 assessments, the respondent submits that the applicant is statute-barred from proceeding with his application pursuant to s. 55(1)2 of the Schedule.

Applicant is barred from proceeding with his application pursuant to s. 55(1)2

22Section 55(1)2 of the Schedule provides that an insured person shall not apply to the Tribunal if the insurer has provided them with notice in accordance with the Schedule that it requires an examination under s. 44 but the insured person has not complied with their attendance.

23I find that the respondent has established that the applicant failed to attend properly scheduled IEs without reasonable explanation. No explanation was provided to the respondent after two missed IE appointments.

24The respondent has submitted evidence to show that it scheduled and rescheduled the proposed psychological IEs twice. These notices were compliant with the timing and notice requirements under s. 44.

25The respondent has also shown that it lacked objective medical evidence in the form of CNRs or other records to show that there was any sign of psychological issues or conditions that were affecting the applicant.

26The applicant’s position was that the applicant did not need to attend IEs because the OCF-18 and pre-screening report by Dr. Papazoglu meant that the respondent required additional or more substantive medical reasons for IEs and for their denial of the relevant treatment plan(s). In short, that the respondent did not have valid medical reasons.

27I find that this reasoning is flawed. The only explanation the applicant provided for his non-attendance was that he thought that the respondent’s notices were procedurally non-compliant and lacked medical reasons for the proposed IE. However, the notices were compliant with s. 44(5), in that they met the appropriate timelines and dates, included location, time, reasons and medical specialty of the assessor, and noted that the applicant was required to attend. Accordingly, the applicant does not have a reasonable explanation for non-attendance.

28Even if the notices from the respondent to the applicant did not reference the pre-screening report of Dr. Papazoglu (which only arrived in advance of the third rescheduling attempt), there was no reason the applicant did not (1) contact the respondent and ask for clarification, or (2) explain his absence at more than one scheduled IE.

29In short, the applicant must take responsibility for his actions and his failure to communicate any reasons for missing the IEs. This means that he has not met his onus under the Schedule to attend IEs.

30Accordingly, I find that the applicant is statute-barred from proceeding with his application, due to his failure to attend insurer’s examinations under s. 44 of the Schedule.

31I also decline to exercise my discretion under s. 55(2) and 55(3) of the Schedule to permit the application to proceed despite non-compliance with s. 44, because if the psychological treatment plan is statue-barred, only the MIG remains as a standalone issue and that is not sufficient grounds for a dispute.

Interest

32Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As I have found that no benefits are owing, accordingly, no payments are overdue.

ORDER

33The applicant is statute-barred from proceeding with his application, due to his failure to attend insurer’s examinations under s. 44 of the Schedule.

34The application is dismissed.