Licence Appeal Tribunal File Number: 25-007496/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:
Claudia E. Dacres
Applicant
and
Intact Insurance Company
Respondent
PRELIMINARY ISSUE DECISION
ADJUDICATOR:
Trina Morissette, Vice-Chair
APPEARANCES:
For the Applicant:
Imtiaz Hosein, Counsel
Christos Kakaletris, Counsel
For the Respondent:
Megan Murphy, Counsel
HEARD:
In writing
OVERVIEW
1Claudia E. Dacres, the applicant, was involved in an automobile accident on June 3, 2023, and sought benefits from Intact Insurance Company, the respondent, 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 and applied to the Licence Appeal Tribunal (“the Tribunal”) for resolution of the dispute.
PRELIMINARY ISSUE IN DISPUTE
2The preliminary issue to be decided is whether the applicant is barred from proceeding to a hearing for all of the benefits claimed in her application because she failed to attend insurer’s examinations under section 44 of the Schedule?
RESULT
3I confirm that the applicant has withdrawn her claims for an income replacement benefit (“IRB”) and attendant care benefits (“ACB”).
4The applicant is statute-barred from proceeding with her application pursuant to section 55(1)2 of the Schedule.
5The applicant’s request for costs is denied.
PROCEDURAL ISSUE
6In an email to the Tribunal dated October 9, 2025, the applicant advised that she was withdrawing her claims for an IRB and ACB, from her application. She requested confirmation that these issues were withdrawn.
7I confirm that the applicant has withdrawn her claim for IRB and ACB from the application within.
8As these issues have been withdrawn, the analysis of this preliminary issue will focus on the remaining issues in dispute.
ANALYSIS
9Section 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 often 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.
10The requirements for a Notice of Examination (NoE) are set out in section 44(5) of the Schedule:
i. 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. 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 section 55(2), permit an insured person to apply to the Tribunal despite a failure to comply with section 44, subject to terms and conditions.
The applicant has not provided a reasonable explanation for her non-attendance
12The respondent submits that to date, the applicant failed to attend any properly scheduled IE assessments and has provided no reasonable explanation for her non-attendance despite numerous attempts to reschedule the IEs.
13The applicant does not dispute that she did not attend the scheduled IEs but she submits that she cannot be barred under section 55 of the Schedule for failing to attend IEs that were not in compliance with section 44. More specifically, the applicant submits:
i. The respondent failed to demonstrate that the IEs were arranged “at the expense” of the respondent;
ii. The respondent failed to provide the required information for the applicant to comply with her requirement to provide the assessor with all relevant information as per section 44(9)2.ii. of the Schedule; and
iii. There is no evidence that the respondent chose the health professionals and provided the necessary information to them.
14The applicant argues that an adverse inference should be drawn given the respondent’s silence to the applicant’s information inquiries and submits it would be an absurdity and stain on the entire accident benefits resolution scheme if the Tribunal were to bar an applicant for failure to attend section 44 examinations where there is no evidence that the respondent properly arranged the examinations. She submits that the preliminary issue should be dismissed with costs.
15I find the applicant has not provided a reasonable explanation for her non-attendance at the scheduled IEs. I find that the arguments put forward by the applicant do not explain why she did not, or could not, attend the examinations. Rather, I find that the applicant’s arguments are an attempt to appeal a production order determined at the case conference held in this matter on September 16, 2025, as well as an attempt to reverse her burden of proof.
16The “information inquiries” the applicant alleges the respondent ignored were addressed at the case conference. In a Case Conference Report and Order (“CCRO”) issued to the parties on September 18, 2025, the adjudicator considered the applicant’s requests for the complete files of the regulated health professionals retained for IE assessments and the complete files of the vendor retained to arrange the IE assessments. The case conference adjudicator denied the applicant’s requests for the production of these files in relation to the preliminary issue hearing, but ordered the production of the files in advance of the substantive issues hearing.
17The burden of proof is on the applicant. It is her onus to put forth a reasonable explanation for her non-attendance at the examinations. Here, the applicant is attempting to place this burden on the respondent to prove it properly arranged the examinations. In doing so, the applicant has not satisfied her onus and, in any event, I find that there is sufficient proof that the respondent properly arranged the examinations and provided all that is required of it under the Schedule.
18First, the applicant submits that the respondent failed to submit evidence that demonstrates it arranged the IEs “at its expense” as stated at section 44(5) of the Schedule. Although the applicant does not specify what “evidence” she expected the respondent to produce, her request suggests she expected the respondent to produce either invoices or proofs of payment. In my view, the NoEs sent by the respondent to the applicant setting out the date, time, healthcare professional’s name, specialty and the location of the scheduled IE (the assessment facility) is sufficient to show that the respondent properly arranged the IEs at its expense. There is no evidence of the contrary.
19Second, the applicant submits that the respondent failed to provide information that would allow her to comply with section 44(9)2ii of the Schedule which places a positive duty upon the parties, including the applicant, to submit relevant or necessary information to the assessor five days before the date of the assessment. She argues that the respondent failed to provide her with the contact information of the assessor and relies on C.B. v. Allstate Insurance Company of Canada, 2019 CanLII 119732 (ON LAT) (“C.B.”). I find that the NoEs provided sufficient information should the applicant had intended to provide the assessors with information in advance of the assessments. The notices provide the relevant information pertaining to the scheduled assessment as well as the name of the facility’s contact person and their contact information. Any information the applicant deemed important or relevant to the issue could have been provided to the assessor through the facility’s contact person. I note that the applicant made no submissions that she tried to provide information to the assessors prior to the scheduled assessments.
20Third, the applicant submits that the respondent has not provided evidence that it chose the regulated professionals or provided documents and information to them. I am not persuaded by this argument either. The notices include the names and specialities of the health professionals to conduct the IEs. These notices were provided by the respondent to the applicant and are therefore sufficient to show that the respondent chose the healthcare professionals.
21Regarding the allegation that the respondent failed to provide the assessor with documentation and information, the applicant points to paragraph [10]ii of the CCRO where she alleges that the respondent advised the Tribunal at the case conference that the examination facility files “do not exist”. Therefore, she argues that if the vendor and regulated health professional never had files on the applicant, this is the most concrete evidence that the respondent did not comply with section 44(9)2.ii. I find this to be a mischaracterization of the submissions made at the case conference and note that the CCRO actually states: “the respondent did not agree to provide this information for the expedited preliminary issue hearing and submitted that since the applicant did not attend IE assessments there is no file.”
22As discussed above, the onus is on the applicant to provide a reasonable explanation for not attending the scheduled examinations. A transfer of the burden of proof is not a reasonable explanation. I therefore find that the applicant’s reliance on the respondent’s purported non-compliance with section 45 of the Schedule is not a reasonable explanation for her non-attendance.
The respondent’s NoEs are compliant with the Schedule
23Although the applicant does not submit that the notices were invalid, the respondent submitted and relies on two letters from applicant’s counsel provided in July 2023 to argue that the applicant “continues to change the justification for [her] non-compliance.” The respondent points to a letter dated July 21, 2023 from applicant’s counsel to the respondent regarding the scheduled IE for July 26, 2023, where applicant’s counsel states they “are unable to determine whether the proposed insurer’s examinations are reasonable and necessary as [the respondent] has not provided sufficient medical or other reason(s) for the reasonableness and necessity of the examination.” A similar letter dated July 28, 2023 was sent from applicant’s counsel to the respondent in response to an IE scheduled for August 21, 2023.
24The Schedule is 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. If the applicant fails to comply, there must be a reasonable explanation provided for the non-compliance. To be clear, the respondent must first establish that a NoE complies with section 44(5) of the Schedule in order for it to rely on it as a basis to seek a remedy pursuant to section 55.
25As there is evidence before the Tribunal that the applicant initially questioned the validity of the notices, I find it necessary to determine their compliance with the Schedule.
26In relation to the remaining issues in dispute, the following NoEs were provided to the applicant:
OCF-18 in the amount of $5,492.69 for chiropractic services, proposed by Bakshi Chiropractic Professional Corporation (“Bakshi”) and submitted on June 23, 2023
August 21, 2023
To determine the applicability of the Minor Injury Guideline (“MIG”) and medical/rehabilitation benefits (“med/rehab”)
IE scheduled for September 15, 2023 at 10:00 a.m.
September 18, 2023
Same as above
Respondent advises applicant that it is prepared to re-schedule the IE if the applicant confirms she will attend and she provides a reasonable explanation for her prior non-attendance
OCF-18 in the amount of $6,033.50 for occupational therapy (“OT”) services, proposed by Innovative Occupational Therapy Services Inc. (“Innovative”) and submitted June 26, 2023
July 5, 2023
To determine the applicability of MIG and med/rehab benefits
IE scheduled for July 26, 2023 at 2:00 p.m.
July 26, 2023
Same as above
IE rescheduled for August 21, 2023 at 9:00 a.m.
August 22, 2023
Same as above
IE rescheduled for September 15, 2023 at 10:00 a.m.
OCF-18 in the amount of $987.48 for chiropractic services, proposed by Bakshi and submitted November 22, 2023
December 6, 2023
To determine the applicability of MIG and med/rehab benefits
IE scheduled for January 15, 2024 at 12:00 p.m.
January 23, 2024
Same as above
IE rescheduled for February 26, 2024 at 12:00 p.m.
March 4, 2024
Same as above
Respondent advises applicant that it is prepared to re-schedule the IE if the applicant confirms she will attend and she provides a reasonable explanation for her prior non-attendance
OCF-18 in the amount of $8,460.00 for OT services, proposed by Innovative and submitted September 27, 2024
October 9, 2024
To determine the applicability of MIG and med/rehab benefits
IE scheduled for October 29, 2024 at 2:45 p.m.
November 8, 2024
Same as above
IE rescheduled for December 2, 2024 at 3:00 p.m. at the request of the assessor
January 3, 2025
Same as above
IE rescheduled for January 17, 2025 at 11:30 a.m.
January 23, 2025
Same as above
Respondent advises applicant that it is prepared to re-schedule the IE if the applicant confirms she will attend and she provides a reasonable explanation for her prior non-attendance
27I find that all the NoEs comply with the requirements for proper notice of an IE. The notices identify the individual OCF-18s, they state that the applicant’s attendance is required, provide the date, time and location of the assessment in a clearly formatted table, and provide the identity and professional designation of the assessor who would be conducting the IE. They offer the applicant accommodations in the event the applicant requires transportation or an interpreter and provide the medical and other reasons, being primarily based on the MIG.
28The notices define the MIG and its limit of $3,500.00, and explain that based on the medical documentation provided, the respondent determined that the applicant’s impairments are predominantly “minor” and that “there is insufficient compelling medical evidence provided by health practitioner showing that your prior medical condition will not allow for a full recovery under the $3500 limit.” Some NoEs go further in their explanation and discuss cervical and back strain, musculoskeletal strains, imaging reports, and an orthopaedic consultation.
29I find that the notices provide the medical and other reasons for the requested IEs and provide all other information required for a proper and adequate notice under section 44(5) of the Schedule.
30Regarding the fifth OCF-18 in dispute, in the amount of $2,200.00, proposed by Innovative and submitted on June 26, 2023, the respondent submits that this treatment plan proposed funding for the initial OT assessment. The respondent submits that on June 29, 2023, it denied the OCF-18 on the basis that the MIG applied and that it was arranging for an assessment to determine if treatment outside the MIG was warranted and whether the proposed OCF-18 was reasonable and necessary.
31Having reviewed the denial dated June 29, 2023, I find that it is compliant with the notice requirements of section 38 of the Schedule. I note specifically the respondent’s reasons for the denial: “[f]urther to Section 14 and 25(2), an insurer is not liable to pay an [ACB], nor are they required to pay for an assessment or examination in the insured person’s home unless the impairment is not a minor injury. For this reason, we are unable to consider the Treatment and Assessment Plan (OCF-18) requesting an assessment of [ACBs].” As per the respondent’s documentation, attempts were made to schedule an IE to determine the applicability of the MIG, which the applicant did not attend.
32Given that the applicant’s entitlement to ACBs (which the applicant has withdrawn) and a finding that this treatment plan is reasonable and necessary is dependent on whether the applicant’s injuries fall outside of the MIG, and given the fact that I have barred the issue of the MIG in this application due to the applicant’s non-attendance at IEs to determine the applicability of the MIG, this treatment plan is also barred from proceeding to a hearing.
33For these reasons, and pursuant to section 55 of the Schedule, I find that the applicant is statute-barred from proceeding with her application.
I decline to exercise my discretion at section 55(2) of the Schedule
34Section 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. As I have found above, the requests to attend an IE were proper and the applicant has not provided a reasonable explanation for her non-attendance.
35The applicant submits that, in the alternative, should the Tribunal find that “s.55(1)2 only requires an insured to comply with its obligations under s. 44 and not the insurer to comply with its obligations”, she requests that the Tribunal exercise its discretion under section 55(2) “to hear the application out of fairness”.
36I decline to exercise the discretion afforded to me at section 55(2) because the applicant has not persuaded me that the respondent has not satisfied its obligations under section 44 and has not provided any other persuasive argument to do so.
The applicant’s request for costs is denied
37Rule 19.5 of the Licence Appeal Tribunal Rules, 2023 (“the Rules”) sets out the relevant factors that the Tribunal must consider in deciding whether to award costs and the amount of costs to be ordered. These factors include: the seriousness of the misconduct; whether the conduct was in breach of a direction or order issued by the Tribunal; whether or not a party’s behaviour interfered with the Tribunal’s ability to carry out a fair, efficient, and effective process; prejudice to other parties; and the potential impact an order for costs would have on individuals accessing the Tribunal system.
38The applicant submits that the respondent acted unreasonably, frivolously, vexatiously, and in bad faith. This behaviour, she submits, warrants costs in an attempt to deter insurers from putting forth preliminary issues they know have no factual or legal basis to be raised. She relies on Cartaway Resources Corp. (Re), 2004 SCC 26 that found that deterrence is “an appropriate, and perhaps necessary, consideration in making orders that are both protective and preventive.” She argues that the respondent’s conduct must be deterred to instill public confidence in the Tribunal’s ability to deliver justice to accident victims, and to uphold its mandate in providing a fair, open and accessible process, that enables effective participation of all parties.
39The respondent submits that costs are not proper at this stage of the proceeding and it argues, in any event, that it was proper for it to address the applicant’s failure to participate in IEs by way of a preliminary issue hearing. It argues that costs should be considered once this matter reaches the ultimate hearing stage.
40I find that the respondent’s conduct did not amount to unreasonable, frivolous, vexatious or bad faith conduct. As I have found above, the applicant has not persuaded me that the respondent did not satisfy its obligations pursuant to section 44 of the Schedule. In any event, the applicant filed her application and the respondent raised a preliminary issue, all of which is permitted pursuant to the legislation and the Rules. No costs are awarded.
ORDER
41For all the above reasons, I find that:
i. The applicant is statute-barred from proceeding with her application pursuant to section 55(1)2 of the Schedule.
ii. The applicant’s request for costs is denied.
iii. The application is dismissed.
Released: February 12, 2026
Trina Morissette
Vice-Chair