Licence Appeal Tribunal File Number: 25-010666/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:
Fatimoh T. Adejumo
Applicant
and
TD General Insurance Company Inc.
Respondent
AMENDED PRELIMINARY ISSUE DECISION AND ORDER
ADJUDICATOR:
Trina Morissette, Vice-Chair
APPEARANCES:
For the Applicant:
David Kapanadze Kapanedze, Counsel
For the Respondent:
Tessie Kalogeras, Counsel
HEARD:
In writing
OVERVIEW
1Fatimoh T. Adejumo, the applicant, was involved in an automobile accident on May 1, 2022. The applicant sought benefits from TD General 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 can proceed to a hearing for her application when she failed to attend insurer’s examinations (“IEs”) under section 44 of the Schedule?
RESULT
3The respondent has not met its burden to show that the applicant failed to attend the scheduled IEs such that the application should be barred.
ANALYSIS
4Section 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.
5The 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.
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 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 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 (section 55(3)).
7On June 24, 2025, the applicant submitted her OCF-19 for catastrophic impairment designation (“CAT”) under Criteria 7 and 8. On July 10, 2025, the respondent denied her claim on the basis that assessments were required to determine entitlement. In correspondence dated August 12, 2025, the applicant was advised that her attendance was required at the following IEs to assess her claim for CAT:
Date/Time (2025)
Specialty
Health Practitioner
Location
September 23 11:00 a.m.
Physiatry
Dr. Abdul-Wahad Khan
151B York Street, Suite 321A, London
October 1 8:00 a.m.
Neuropsychology
Dr. Power
Virtually (Microsoft Teams)
October 1 8:00 a.m.
Psychology
Dr. Power
Virtually (Microsoft Teams)
October 30 10:00 a.m.
Occupational Therapy
Mr. Horban
Applicant’s home
October 30 1:30 p.m.
Occupational Therapy
Mr. Horban
Applicant’s home
8The applicant did not attend the neuropsychological IE or the psychological IE with Dr. Power, both scheduled for October 1, 2025. At the applicant’s request, the IEs were rescheduled for November 10, 2025. I infer from the respondent’s submissions that the applicant attended the other three scheduled IEs.
9The respondent submits that the applicant did not attend the rescheduled IEs on November 10, 2025 “due to a scheduling conflict and failure to attend”. The IEs were then rescheduled for January 19, 2026.
10On November 28, 2025, the parties participated in a case conference where the matter was set down for a 5-day videoconference hearing. Amongst other procedural orders, a Case Conference Report and Order (“CCRO”) issued to the parties on December 1, 2025, set production deadlines for the exchange of documents.
11The respondent submits that should the IEs proceed as scheduled (on January 19, 2026), it will be “entrapped” and found in non-compliance with the production deadlines set out in the CCRO. It argues that the applicant’s behaviour caused significant delays and placed it in an unjust and precarious situation. As such, it submits the just and appropriate remedy is to dismiss her application. The respondent submits that the applicant’s “pattern of non-attendance supports an inference that the applicant does not intend to attend” the IEs.
12The applicant does not dispute the validity of the NoEs. She submits that the respondent wilfully rescheduled the IEs, continued to treat the claim as ongoing, and did not raise section 55 of the Schedule until the November 28, 2025 case conference. She points to the fact that there is no present non-compliance and there is no evidence that the applicant will not attend the January 19, 2026 IEs.
13The 5-day videoconference hearing is scheduled to commence on June 15, 2026, almost five months following the scheduled assessments.
14There is no evidence before me to support that the applicant failed to attend the January 19, 2026 IEs. I acknowledge that the parties’ submissions on this preliminary issue were due before January 19, 2026 – all were due by January 15, 2026 – however, the parties agreed at the case conference to have the preliminary issue heard in advance of the substantive issues hearing, and they also agreed to the timelines for their submissions.
15Having found no failure to attend the IEs, I find that the respondent has not met its burden. In the circumstances, the respondent’s allegation was pre-emptive and speculative. The respondent did not advise the Tribunal that the applicant indeed failed to attend the January 19, 2026 IEs in the four months since it was rescheduled and neither party filed a motion to vacate the preliminary issue hearing.
16There is also no evidence that the section 44 CAT reports were not completed and/or available to exchange in compliance with the production deadlines set by the CCRO. I remind the parties that the hearing adjudicator has the discretion to consider any further relief the parties may seek at the hearing.
ORDER
17For the reasons noted above, I find:
i. The respondent has not met its burden to show that the applicant failed to attend the scheduled IEs such that the application should be barred.
ii. The parties shall proceed to a hearing on the substantive issues as previously scheduled.
Released: June 4, 2026
Trina Morissette
Vice-Chair