Licence Appeal Tribunal File Number: 23-011224/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:
Mazhar Mustafa
Applicant
and
Allstate Canada
Respondent
DECISION
ADJUDICATOR: Amar Mohammed
APPEARANCES:
For the Applicant: Alexei Antonov, Counsel
For the Respondent: Aleah H. Thomas, Counsel
HEARD: By Way Of Written Submissions
OVERVIEW
1Mazhar Mustafa, the applicant, was involved in an automobile accident on September 21, 2021, 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, Allstate Canada, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
PRELIMINARY ISSUE
2Is 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 under s. 44 of the Schedule?
SUBSTANTIVE 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 Minor Injury Guideline (“MIG”) limit?
ii. Is the applicant entitled to $2,960.00 for physiotherapy services, proposed by Physiomed in a treatment plan/OCF-18 (“plan”) dated November 4, 2021?
iii. Is the applicant entitled to $3,697.14 for psychological services, proposed by Downsview Healthcare Inc. in a plan dated September 27, 2022?
iv. Is the applicant entitled to $2,465.32 for psychological services, proposed by Downsview Healthcare Inc. in a plan dated January 20, 2023?
v. Is the applicant entitled to the plans proposing assessments by Downsview Healthcare Inc., as follows:
a) $2,486.00 for a Psychological Assessment, dated March 10, 2022;
b) $2,486.00 for a Neurological Assessment, dated May 13, 2022;
c) $2,486.00 for a Chronic Pain Assessment, dated July 8, 2022?
vi. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
vii. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
4This hearing is stayed until the applicant complies, on the directions, terms, and conditions set out in the decision.
5I am seized on this application.
ANALYSIS
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 under s. 44 of the Schedule?
6For the reasons that follow, this hearing is stayed until the applicant complies, on the directions, terms, and conditions set out below. I am seized on this application.
The Law
7Section 44(5)(a) requires that, if an insurer requires an insurer’s examination (“IE”), the insurer shall arrange for the examination at its expense and shall give the insured person a notice setting out the medical and any other reasons for the IE, details of the examiner, and details of the attendance. Section 44(9)2.i.-iii. sets out the duties of both parties that must be fulfilled in the context of scheduling and attendance. This includes the insurer’s duty to make reasonable efforts to schedule the examination for a day, time and location that are convenient for the insured. This also includes the insured’s duty to provide such information and documents as are relevant or necessary for the examination, and ultimately, the duty of the insured to attend the examination and to submit to all reasonable examinations requested by the IE assessor.
8In this context, if an insurer demonstrates that an insured person did not attend an IE that was scheduled in accordance with s. 44, the Tribunal will consider whether the penalties under s. 55(1) apply. Specifically, s. 55(1)2 states that “an insured person shall not apply to the Licence Appeal Tribunal” for a benefit if they did not attend an IE scheduled to address that benefit. The insurer must first prove that a notice of examination (“NOE”) complies with s. 44 of the Schedule in order for it to rely on it as a basis to seek a statute bar under s. 55.
9Section 55(2) gives the Tribunal discretion to “permit an insured person to apply” despite non-attendance at an IE, and s. 55(3) allows the Tribunal to “impose terms and conditions” on this permission. The insured person has the onus to show that s. 55(2) applies. Generally, the Tribunal has found that if the applicant has a reasonable explanation for non-attendance at a Schedule-compliant IE, the Tribunal’s discretion under s. 55(2) may be warranted, with terms and conditions, if necessary.
The parties’ positions
10The respondent moves to dismiss the entirety of the application on the basis of the applicant’s non-attendance at a s. 44 psychological assessment with Dr. Zubina Ladak, psychologist, which was scheduled to take place on June 6, 2022. The respondent argues that the applicant has not provided a reasonable explanation for this non-compliance and that I should consider this Tribunal’s interpretation and application of the relevant law to conclude the entire application should be dismissed, as found in: 16-003316 v Peel Mutual Insurance Company, 2017 CanLII 69452 (ON LAT) (“Peel”) and Blanco v Wawanesa Mutual Insurance Company, 2023 CanLII 98423 (ON LAT) (“Blanco”). I note that these decisions are not binding on me, and they are distinguishable for reasons that will follow.
11The relevant NOE dated May 5, 2022 provides that the psychological examination is for four purposes, to assess the following:
i. Application of the MIG, which is in dispute on this application.
ii. The plan proposing a psychological assessment, which is in dispute on this application.
iii. Income replacement benefit, which is not before me as an issue in dispute.
iv. Non-earner benefit, which is not before me as an issue in dispute.
12The applicant submits that despite his physical and psychological impairments, he was unable to take time off from work due to financial hardship. The applicant’s submissions explain that the applicant is a dedicated hard-working individual with limited finances and unintentionally missed the psychological IE. Further, while he is at work, he is not available by phone and for this reason, at times, even his counsel is unable to reach him to discuss his application. The applicant submits that the non-compliance was not intentional, and he continues to be willing to attend examinations required by the respondent. For these reasons, the applicant argues he should not be barred from disputing all of the issues in dispute.
13As a result of the applicant’s partial and considerable compliance with s. 44 examination requests, this is a significantly different set of facts as compared to the decisions the respondent refers me to. I have considered the chronology of events based on the record before me as follows:
i. did attend an Examination Under Oath held April 27, 2022,
ii. did not attend the psychological IE on June 6, 2022,
iii. did attend a s. 44 neurology assessment by Dr. Vincenzo Basile on June 21, 2022,
iv. most recently, did attend a s. 44 physical medicine and rehabilitation specialist assessment by Dr. Alborz Oshidari on July 31, 2024.
14More precisely, in Peel and in Blanco, there is no suggestion of partial compliance with the insurer’s requests for IEs, as is the case before me. In Peel, the insured did not attend IEs because, she argued, that the respondent did not comply with notice requirements in the Schedule. In Blanco, the Tribunal found that the insured did not put forward a reasonable explanation of her non-attendance because she did not file any submissions for the Tribunal to consider.
15The applicant argues that it would be highly prejudicial to him if he is barred from proceeding to a hearing, as the non-attendance was not intentional, and he appeals to the respondent’s duty of fairness and utmost good faith. In the case before me, I note that the applicant complied both with the respondent’s prior and subsequent s. 44 examination requests. The applicant attended the appointment with Dr. Oshidari which occurred more than two years after the applicant missed the June 2022 examination. This is a clear indication that the applicant continues to be willing to attend IEs. Yet, I note that I have no indication of any attempt by either party to discuss rescheduling of the missed appointment. While it is the applicant’s duty to attend properly scheduled IEs and to provide a reasonable explanation for not attending them, the respondent must fulfill its duty of utmost good faith to an insured and must make reasonable efforts to accommodate the applicant. I have considered that these duties are in the context of remedial and consumer protection legislation.
16For the reasons above, I find that, on a balance of probabilities, the applicant has a reasonable explanation for missing the psychological IE on June 6, 2022.
Procedural fairness
17I must also consider that I must ensure procedural fairness throughout this process. In this regard, I find that the applicant did not make any submissions regarding this preliminary issue in his initial submissions without any explanation. The parties had an opportunity to frame the issues in dispute at the case conference. The resulting Case Conference Report and Order is clear that the preliminary issue shall be heard together with the substantive issues at this hearing. Although, when a preliminary issue is dispositive of the entire application, the parties may request a preliminary issue hearing in advance of a substantive hearing, they did not do so. Further, it is up to the parties to frame the issues and the submission deadlines for the written hearing. In this case, according to the Case Conference Report and Order, there was no opportunity for the respondent to provide submissions on new arguments raised for the first time in the applicant’s reply submissions. I note that:
i. the applicant’s submissions were due 30 days in advance of the hearing,
ii. the respondent’s submissions were due 14 days in advance of the hearing, and
iii. the applicant’s reply submissions were due 7 days in advance of the hearing.
18Based on the Case Conference Report and Order, it was not contemplated at the time that the applicant would not address the preliminary issue in his initial submissions. Under the circumstances, and for all of the issues in dispute, I must ensure procedural fairness, a reasonable opportunity for the parties to provide submissions, and look to decide this hearing on the merits.
Arguments raised by the applicant in reply submissions
19As noted, the applicant’s reply submissions are the first instance in which the applicant addressed the preliminary issue, after the respondent addressed it in responding submissions. For clarity regarding the timeline of submissions, the respondent’s responding submissions are dated November 15, 2024, the applicant’s reply submissions are dated November 22, 2024. Notably, the respondent provided a sur-reply dated November 22, 2024 despite not having an opportunity to do so by the Case Conference Report and Order that governs this written hearing. Nor did the respondent request permission from the Tribunal to provide a sur-reply. However, I have decided to consider all of the parties’ submissions, largely because neither party raised any issues with:
i. the applicant addressing the preliminary issue for the first time in reply submissions,
ii. the respondent providing a sur-reply without seeking leave to do so.
20Further, since the respondent had an opportunity to file its sur-reply to its satisfaction and with no limitation placed on it by the Tribunal, I find that there is no concern that the respondent did not have an opportunity to address any arguments found in the reply submissions of the applicant.
Prejudice to the parties and section 55(2) of the Schedule
21Section 55(2) of the Schedule permits the Tribunal to allow an insured to apply for dispute resolution despite being non-compliant with s. 44. Further, I have considered that in Peel, the Tribunal found that the insured in that case shall not commence a proceeding before the Tribunal until such time as she attends the IEs that she had not attended. While this decision is not binding on me, I have considered the context of the potential consequences of my decision on the preliminary issue and its impact on the substantive issues that are in dispute, together with s. 55(2) of the Schedule. Under section 55(2), I may exercise my discretion to permit the applicant to proceed on this application. I have decided that this is the appropriate approach in the specific and unique circumstances of this application, where there is a reasonable explanation for missing a single IE on a single date, there is substantial compliance otherwise, and there is a stated intention to continue to comply with IE requests that is demonstrated by the applicant’s subsequent attendance.
22I note that, as to the substantive hearing, assessment of whether any plans proposing various treatment or assessments are reasonable and necessary is unwarranted while the applicant remains subject to the MIG. I have also considered that the sole piece of medical evidence the applicant relies on is a psychological report by Dr. Jacqueline Brunshaw dated May 10, 2022. The respondent has not been able to obtain a s. 44 psychological examination due to the applicant’s single non-attendance and the lack of rescheduling. This directly impacts a number of issues in dispute, a plan proposing a psychological assessment, and two plans proposing psychological services. It also directly impacts the application of the MIG, and therefore all of the plans in dispute, by extension. I am not inclined under these circumstances to decide the MIG issue unless it is on the merits of the claim with a fair opportunity for the respondent to obtain a s.44 psychological report. I have taken a wholistic view of the applicant’s substantial compliance, a single missed IE in June 2022 which has apparently not been rescheduled, to date, and the resulting prejudice to the applicant. I have also considered procedurally that this preliminary issue could have been addressed in a preliminary issue hearing in advance of a substantive hearing, which generally provides time for the parties to take action in advance of a substantive hearing. In this context, this decision affords the parties a just, expeditious, and cost-effective determination of the issues in dispute on the merits, and an opportunity to take action that they would likely have had if they had engaged the option of a preliminary issue hearing.
23As to re-scheduling the missed IE, I have considered that while the Schedule requires not less than 5 business days notice to the applicant of a scheduled IE, the respondent previously provided notice 32 days in advance for the psychological IE. On this basis, the parties should prioritize compliance with the terms and conditions, including timelines, set out below, in rescheduling and attending the psychological IE.
Terms and conditions per s. 55(3)
24For all of the reasons above and considering the unique circumstances of the facts before me relating to the applicant’s partial but substantial compliance, I exercise my discretion under s. 55(2) to grant the applicant permission to pursue this application and impose the following terms and conditions under s. 55(3).
i. This hearing is stayed, and I am seized on this application.
ii. The respondent shall re-schedule the s. 44 psychological examination on a date that is within 45 calendar days of the release of this decision,
iii. The applicant shall attend the rescheduled s. 44 psychological examination,
iv. Upon receipt of the s. 44 psychological assessment report by both parties, or within 90 calendar days from the release of this decision, whichever is the earliest, the following timetable applies:
a) Within 30 calendar days, the respondent shall produce and file its submissions, limited to addressing the s. 44 psychological assessment report, or the applicant’s further non-attendance, whichever applies.
b) Within 14 calendar days of receipt of the respondent’s submissions, the applicant shall produce and file its submissions, limited to responding to the respondent’s submissions as outlined above, without raising any new arguments.
25The parties’ submissions are limited to 5 pages each, double-spaced, 12-point, Arial or Times New Roman font with 1.5-inch margins. Submissions must make specific reference to the evidence by tab and page number. I continue to have discretion to determine whether to consider submissions and evidence that do not comply with any part of this decision, or the Tribunal’s filing requirements, as ordered in the Case Conference Report and Order.
26For clarity, this decision is not intended to affect the legislative requirements that may apply to the parties as they pursue to reschedule and attend the IE on my direction. Further, the parties have had ample opportunity to otherwise crystalize their submissions and evidence on all of the issues in dispute. Therefore, the parties shall not rely on any items or documents not already part of the evidentiary record before me at this hearing, other than the single report resulting from the s. 44 psychological examination, which is to be filed by the respondent along with its submissions. On the other hand, if the applicant does not attend the rescheduled psychological IE, the parties may file and refer me to evidence specifically relevant to the non-attendance and in this case the preliminary issue of non-attendance remains alive before me. If the parties resolve the issues in dispute, the applicant shall immediately advise the Tribunal in writing.
27This hearing is stayed until the applicant complies, on the directions, terms, and conditions set out above. I am seized on this application.
ORDER
28For the reasons above, I make the following orders:
i. This hearing is stayed until the applicant complies, on the directions, terms, and conditions set out above.
ii. I am seized on this application.
Released: January 30, 2026
__________________________
Amar Mohammed
Adjudicator