CITATION: Tipping v. Coseco Insurance Company, 2021 ONSC 5295

DIVISIONAL COURT FILE NO.: 390/20

DATE: 20210803

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

Penny, S.T. Bale and Favreau JJ.

BETWEEN:

Richard Tipping

Applicant

– and –

Coseco Insurance Company and Licence Appeal Tribunal

Respondents

Imtiaz Hosein and Joe Campisi, for the Applicant

Shirline Apiou, for the Respondent Coseco Insurance Company

Valerie Crystal, for the Respondent Licence Appeal Tribunal

HEARD at Toronto by videoconference: February 3, 2021

Favreau J.

Overview

[1] The applicant, Richard Tipping, seeks judicial review of a decision and reconsideration decision made by Adjudicator Christopher F. Ferguson (the “Adjudicator”) of the Licence Appeal Tribunal (the “LAT”). The decisions bar Mr. Tipping from proceeding with an appeal to the LAT in relation to catastrophic injury benefits due to his failure to attend an insurer’s medical examination and to provide documents in advance of the examination.

[2] Mr. Tipping argues that the LAT made errors of mixed fact and law and that the decisions are thereby unreasonable. In particular, Mr. Tipping argues that it was not open for the LAT to find that he failed to attend an examination when that examination was cancelled and that the review decision improperly refocused the issue on the failure to provide documents. Mr. Tipping also raises issues of procedural fairness and reasonable apprehension of bias.

[3] The preliminary issue in this case is whether the Court should entertain the application for judicial review given that there is a statutory right of appeal from the LAT’s decisions.

[4] For the reasons below, I would dismiss the application for judicial review on the basis that Mr. Tipping has failed to exhaust his right of appeal and there are no exceptional circumstances in this case warranting the court’s interference.

Statutory scheme

[5] Before reviewing the events that have led to this application for judicial review, it is helpful to review the relevant statutory scheme that applies to an insurer’s right to request a medical examination.

[6] Section 268(1) of the Insurance Act, R.S.O. 1990, c. I.8, deems that every automobile insurance policy in Ontario includes certain benefits. The Statutory Accident Benefits Schedule, O. Reg. 34/10 (the “Schedule”) prescribes the entitlement of an insured person to statutory accident benefits, including how those benefits can be accessed.

[7] Section 44(1) of the Schedule provides that an insurer may require an insured person to submit to an examination (referred to in the decision as an “insurer’s examination”) to determine whether the person is entitled to or continues to be entitled to benefits:

For the purposes of assisting an insurer to determine if an insured person is or continues to be entitled to a benefit under this Regulation for which an application is made, but not more often than is reasonably necessary, an insurer may require an insured person to be examined under this section by one or more persons chosen by the insurer who are regulated health professionals or who have expertise in vocational rehabilitation.

[8] Section 44(5) of the Schedule sets out the information an insurer is required to provide to an insured person in a notice requesting an insurer’s examination:

(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.

[9] An insurer has the option of requesting that a medical examination be conducted by way of a paper review or in person. If the examination is in person, section 44(9)2 sets out requirements that the insurer and insured person must meet:

i. the insurer shall make reasonable efforts to schedule the examination for a day, time and location that are convenient for the insured person,

ii. the insured person and the insurer shall, not later than five business days before the day scheduled for the examination, provide to the person or persons conducting the examination such information and documents as are relevant or necessary for the review of the insured person’s medical condition, and

iii. the insured person shall attend the examination and submit to all reasonable physical, psychological, mental and functional examinations requested by the person or persons conducting the examination.

[10] Section 37(7) of the Schedule deals with circumstances where an insured person refuses to comply with section 44(9), including by refusing to attend an examination or to provide the documents required for an examination. In those circumstances, the insurer can make a determination that the insured person is not entitled to benefits or stop paying such benefits. Section 37(8) provides that if an insured person subsequently complies with section 44(9), the insurer is required to reconsider the application for benefits, and, based on that determination, resume payments or, if the person provides a reasonable explanation for non-compliance, make back payments for the period of non-compliance. Subsections 42(14) and (15) contain similar provisions that apply specifically to attendant care benefits.

[11] Section 55(1)2 provides that an insured person cannot apply to the Tribunal if they have not complied with a notice given by an insurer requiring an examination under section 44. Subsections 55(2) and (3) give the Tribunal the discretion to allow the insured person to make an application and to impose terms in such circumstances.

Background

Accident and claim leading to application to LAT

[12] The applicant was involved in an automobile accident on November 24, 2015. At the time, he was a passenger in a car traveling on Highway 401 that was struck at high speed. Mr. Tipping claims to have suffered serious injuries, including a traumatic brain injury, that prevent him from working in his previous position as a paramedic.

[13] Mr. Tipping’s insurer is the respondent, Coseco Insurance Company (“Coseco”).

[14] In March of 2018, Mr. Tipping made an application to Coseco for a determination of catastrophic impairment. Such a determination would significantly increase the benefits Mr. Tipping may be entitled to receive.

[15] On March 26, 2018, Coseco denied the application and, on June 1, 2018, Mr. Tipping commenced an application to the LAT for the purpose of challenging Coseco’s decision.

[16] In advance of the hearing, Coseco sought to conduct a number of insurer’s examinations. On February 5, 2019, Coseco sent Mr. Tipping a notice pursuant to section 44 of the Schedule for a psychiatric assessment scheduled for March 5, 2019 and a neuropsychological assessment scheduled for March 8 and 25, 2019. These were to be the last two examinations in a three-part multidisciplinary assessment to determine whether Mr. Tipping meets the requirements for a finding of catastrophic impairment.

[17] Mr. Tipping attended the psychiatric assessment.

[18] However, there was a lengthy and convoluted dispute between Coseco and Mr. Tipping’s lawyer over the neuropsychological assessment. This dispute includes multiple communications from Mr. Tipping’s lawyer to the agent retained by Coseco to arrange for the assessment, Focus Assessments (“Focus”), requesting information about Focus’s status and its authority to arrange for the assessment. It also includes communications between Mr. Tipping’s lawyer and the neuropsychologist who was scheduled to perform the examination about her contractual arrangements with Focus.

[19] Ultimately, the neuropsychological assessment was cancelled a few days before it was to start. Mr. Tipping never provided any documents for the scheduled assessment.

LAT’s decision barring the application

[20] On May 23, 209, Coseco brought a preliminary motion on the issue of whether Mr. Tipping should be barred from proceeding with his application to the LAT due to his non-attendance at the neuropsychological assessment. Coseco took the position that Mr. Tipping should be barred from pursuing the application because he did not comply with its notices. Mr. Tipping, through his lawyer, took the position that no valid examination was scheduled pursuant to section 44 of the Schedule because the wording of the section does not allow an insurer to schedule insurer examinations through an agent such as Focus.

[21] In a decision released on June 24, 2021, the Tribunal decided that Mr. Tipping should be barred from proceeding with his application. In doing so, the LAT rejected the rationale provided by Mr. Tipping for not attending the neuropsychological assessment:

I find RT's submission bewildering. Coseco's notice of February 5, 2019 sets out a time, place, location (street address), estimated duration and the name of a licensed health service provider for each of the IEs required. Absent some kind of contrary evidence, that is all I need to find that Coseco arranged a s.44 IE. I find also that RT's attendance at the psychiatric IE covered by this notice is compelling evidence that the IEs were indeed arranged. RT's submission is baseless.

RT's submission 2 is unsupportable. My review of the evidence gives me no reason whatsoever to find that any of the licensed providers engaged by Coseco to coordinate or carry out IEs fall short of the Schedule's definition of "regulated health professional". RT's submissions offer no explanation whatsoever for the allegation that they are not independent. RT does not claim to have questioned anyone's medical credentials or expertise. Accordingly, I reject RT's contention that there was any reason to doubt the qualifications or the independence of any of the providers engaged by Coseco to carry out IEs, and no reason for him to balk at attending the neuropsychological IE.

RT's submission 3 is without any merit. My reading of the February 5, 2019 notice of examination is that it is fully compliant with the Schedule and leaves no room for doubt that RT was required to attend the IE in person. It very clearly sets out the details of an in-person IE (see para. 32 above), and in the first paragraph on page 2 expressly states "it is important that you [RT] attend the IE" and clearly warns of the consequences of not attending, including the possible restriction of RT's right to dispute Coseco's denial. I find it telling as well that RT fails to explain why this notice sufficed to get him out to the psychiatric IE and not to the neuropsychological one.

PM's affidavit lacks credibility and in my opinion its allegations amount to nothing more than scandalous innuendo on the affiant's part; PM states plenty of "beliefs" with a paucity of proof. It is true that Coseco confirms that the calls and contacts PM says were made to Dr. Karmy and Focus were indeed made, to the point of vexing Dr. Karmy and leading her to back out of performing further IEs on RT. However, the explanation for these calls - their basis in unsubstantiated suspicions - has no persuasive value to me at all.

I agree with Coseco that that assessment companies, such as Focus"are contemplated as participants" in the s.44 IE process. They are "service providers" licensed by FSCO pursuant to sections 288.1-288.7 of the Insurance Act and section XVIII of the Schedule. Corporations, partnerships, limited partnerships, and sole proprietors are permitted to register as service providers. Accordingly, I dismiss the suggestion by RT that there is anything improper in health professionals providing s.44 IE assessments through Focus, and I dismiss it as any basis or explanation whatsoever for failing to attend an IE.

RT provides no evidence at all for its submission 4. Coseco did not prevent him from providing information from the IE assessors; in fact, the evidence indicates that RT simply refuses to send the information to Coseco or its agent, Focus. In addition, RT provides no basis for me to find that any failure by Coseco to provide his information to Dr. Karmy would absolve him of the obligation to attend the scheduled IE.

[22] The LAT also refused to exercise its discretion pursuant to section 55(2) of the Schedule to allow the application to proceed. In doing so, the LAT stated that Mr. Tipping’s reasons for refusing to attend the neuropsychological assessment were “implausible”, “devoid of merit” and “intransigen[t]” and that, consequently, it had “no confidence that an extension of [Mr. Tipping’s] time to comply would result in his complying with the Schedule and moving his case forward.

Subsequent events and reconsideration decision

[23] On June 26, 2019, two days following the release of the LAT’s decision, Mr. Tipping’s lawyer wrote a letter to the Adjudicator asking that he “declare [his] decision invalid” and that he recuse himself on the basis of a reasonable apprehension of bias. The letter also stated that “[i]t is important to note that this is not a reconsideration request…” The letter is almost 10 pages long and goes on at great length to argue that the Adjudicator made numerous errors in his decision. It would be an understatement to say that the letter was disrespectful and inappropriate. Counsel for Mr. Tipping concluded the letter by stating that he “require[d]” a response by July 2, 2019.

[24] Mr. Tipping’s counsel then engaged in a lengthy exchange of communication with the LAT about how his letter of June 26, 2019 was being treated. For example, he objected that the letter had been provided to a Vice-Chair of the LAT and wrote a letter to the Vice-Chair complaining about his involvement in the matter and how his letter to the Adjudicator was being handled.

[25] Ultimately, the LAT advised counsel for Mr. Tipping that the June 26, 2019 letter would be treated as a reconsideration request that was to be addressed by the Adjudicator.

[26] On July 15, 2021, Mr. Tipping’s counsel then sent the Tribunal two versions of a lengthy submission requesting a reconsideration of the decision to treat his June 26, 2019 letter as a request for a reconsideration. Amongst many other issues, Mr. Tipping’s counsel took issue with the LAT’s jurisdiction to treat his letter as a request for reconsideration and argued that the process was procedurally unfair.

[27] The LAT issued a reconsideration decision on October 1, 2019. The original Adjudicator conducted the reconsideration. The reconsideration decision upholds the original decision and addresses many of the issues raised by Mr. Tipping’s counsel in the letter of June 26, 2019 and the July 15, 2019 request for reconsideration of the Vice-Chair’s direction.

[28] In his reconsideration decision, the Adjudicator first addressed the allegations of procedural irregularity raised in relation to the LAT’s treatment of the June 26, 2019 letter. He rejected these arguments, stating that any involvement by the Vice-Chair was administrative in nature and that, in accordance with the LAT’s own rules, the reconsideration had properly been delegated to him.

[29] The Adjudicator then rejected the arguments of a reasonable apprehension of bias. In doing so, he stated that the fact that Mr. Tipping disagreed with his decision or that Mr. Tipping believes the decision does not refer to all relevant evidence is not proof of bias.

[30] He then went on to consider the various alleged errors identified by Mr. Tipping, rejecting each of them with one exception. The Adjudicator accepted that he made a factual error when he found that Mr. Tipping failed to attend the examination scheduled on March 8 and 25, 2019, given that the examinations had been cancelled before those dates. However, the Adjudicator found that this factual error would not change the outcome of the decision because Mr. Tipping also failed to comply more generally with his obligations to comply with the section 44 notices, including his obligation to provide documents.

Parties’ positions and the issues on the application for judicial review

[31] Mr. Tipping commenced this application for judicial review on March 16, 2020. The notice of application for judicial review and factum raise multiple issues. By the time of the argument, Mr. Tipping’s lawyer focused primarily on the Adjudicator’s finding in his reconsideration decision that Mr. Tipping failed to comply with Coseco’s notice because he did not provide the requested documents. Mr. Tipping’s position is that it was not open to the Adjudicator to change the basis for his decision to bar Mr. Tipping and that the decision is not supported by the record given the evidence that he was willing to comply with a paper review.

[32] Coseco argued that the Adjudicator’s decision was reasonable because it was supported by the evidence.

[33] The LAT, which did not take a position on the merits of the decisions, raised an issue regarding whether the matter was properly before the Divisional Court as an application for judicial review given that Mr. Tipping has a statutory right of appeal.

Analysis

[34] The primary issue on this application for judicial review is whether the matter is properly brought as an application for judicial review given Mr. Tipping’s right of appeal. A secondary issue is whether, even if this matter had been brought as an appeal, the matter raises an issue of law.

[35] Section 11(1) of the Licence Appeal Tribunal Act, 1990, S.O. 1999, c.12, Sched. G., provides a right of appeal to the Divisional Court from a decision of the LAT. Such an appeal is only to be brought on a question of law; there is no right of appeal on a question of fact or mixed fact and law.

[36] Judicial review is a discretionary remedy which is not available where there is an adequate alternative remedy: Harelkin v. University of Regina, 1979 18 (SCC), [1979] 2 S.C.R. 561. Absent exceptional circumstances, the court will dismiss an application for judicial review where an applicant has not exhausted all alternative remedies: Volochay v. College of Massage Therapists of Ontario, 2012 ONCA 541, at paras. 68-70. The Divisional Court has repeatedly dismissed applications for judicial review where a party has not pursued a right or appeal or other available remedies: see, for example, Stentsiotis v. Social Benefits Tribunal, 2011 ONSC 5948; Worden v. Ontario Municipal Board, 2014 ONSC 7247; Hsieh v Ministry of Community and Social Services et al, 2017 ONSC 3094; and Vangjeli v. WJ Properties, 2019 ONSC 5631.

[37] Recently, in Yatar v. TD Insurance Meloche Monnex, 2021 ONSC 2507, this Court dealt with a case where a party brought a concurrent application for judicial review and an appeal of a LAT decision. In that context, the court specifically considered the issue of circumstances where it may be appropriate to seek judicial review of a LAT decision where there is a right of appeal. At para. 46, the Court found that the court should only entertain a judicial review of a LAT decision dealing with statutory accident benefits, “if at all, in exceptional circumstances”. In reaching that conclusion, the Court had regard to the legislature’s choice to only allow appeals on questions of law and that the LAT provides for a broad right of reconsideration including on questions of fact. The Court also had regard to the nature of the question at issue in that case, which was a question of mixed fact and law.

[38] This case does not present any exceptional circumstances that would justify the court’s interference on an application for judicial review. The core of the dispute between the parties is whether Mr. Tipping complied with his obligation to participate in an insurer’s examination, which includes the issues of whether the LAT erred in finding that Coseco is entitled to schedule the examinations through a third party and whether the Adjudicator erred in his reconsideration decision in finding that Mr. Tipping failed to comply with his obligation to provide documents for a paper review.

[39] As conceded by Mr. Tipping’s lawyer, the Adjudicator’s findings on these issues are matters of mixed fact and law. The fact that Mr. Tipping may not be able to bring an appeal on these issues does not give rise to exceptional circumstances. As held by the Supreme Court of Canada in Strickland v. Canada (Attorney General), 2015 SCC 37, at para. 42, “neither the process nor the remedy need be identical to those available on judicial review”. As stated in Yatar, at para. 39, the “question is whether judicial review is appropriately respectful of the statutory framework and the purposes and policies underlying the statutory scheme”. In this case, the mere fact that Mr. Tipping may not be able to appeal the LAT’s findings of fact or findings of mixed fact and law is not an exceptional circumstance. Rather, precluding Mr. Tipping from proceeding with his application for judicial review on these issues is respectful of the legislature’s intention to limit the courts’ interference with LAT decisions to questions of law alone.

[40] It is also worth noting that, on an application for judicial review, in accordance with Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, the court would apply a reasonableness standard of review and would accordingly only interfere with the LAT’s decisions if the chain of reasoning and outcome were not supported by the record and legal constraints. This is a high bar, and it is not at all clear to me that it could be met in this case. The record shows ongoing attempts by Coseco to schedule the insurer’s examination and an ongoing pattern by Mr. Tipping’se lawyers of raising peripheral objections to the examination. Ultimately, Mr. Tipping did not agree to attend the scheduled in-person examination nor did he provide the requested documents. In the circumstances, it is hard to see how the Adjudicator’s decisions are unreasonable.

[41] In addition to the issues of whether the LAT made any errors in deciding that Mr. Tipping did not meet his obligations to comply with the insurer’s request for an examination, Mr. Tipping raises many issues of procedural fairness and natural justice regarding the proceedings before the LAT following the issuance of the Adjudicator’s initial decision. While Mr. Tipping’s lawyer did not pursue these issues vigorously during the hearing of the application for judicial review, they nevertheless figure prominently in his factum. Procedural fairness and natural justice, including allegations of bias, are questions of law. An appeal from the LAT on those issues is therefore an obvious adequate alternative remedy. However, it is worth noting that, again, in my view, these issues appear to have no merit. Rather than following the process provided for in the LAT’s rules of procedure for requesting a reconsideration, Mr. Tipping’s counsel sent several intemperate letters to the LAT, including to the Adjudicator. The LAT had to figure out how to deal with this situation and ultimately decided to treat the June 26, 2019 letter as a request for reconsideration and assigned the reconsideration to the original Adjudicator. This was within the LAT’s administrative discretion and does not appear to amount to any procedural unfairness. Similarly, there is no evidence of any reasonable apprehension of bias; as held by the Adjudicator, strong disagreement with a decision is not sufficient to justify a finding of reasonable apprehension of bias.

[42] If Mr. Tipping were to pursue an appeal of the LAT’s decision on issues of procedural fairness, an additional issue he may face is that the appeal is premature on the basis that the LAT’s order is not a final order. The Divisional Court has repeatedly held that it will not interfere with administrative processes until they reach their conclusion; see, for example, Traders General Insurance Company v. Rumball, 2019 ONSC 1412 (Div. Ct.), at paras. 18-23. In this case, Mr. Tipping can proceed with his application to the LAT if he complies with Coseco’s request that he participate in a neuropsychological examination. In the circumstances, arguably, the LAT proceedings are not completed.

[43] In any event, judicial review is discretionary and, where there is an adequate alternative remedy, the Court will only interfere in exceptional circumstances. Mr. Tipping has not identified any exceptional circumstances that warrant the Court’s interference here. I see none. In this case, the correct legal avenue is an appeal to the Divisional Court on a question of law alone. Having said that, even if Mr. Tipping could obtain an extension of time for the appeal, I would strongly urge him to consider whether it is worth proceeding with an appeal on the questions of law he appears to raise in this matter. Ultimately, as conceded by counsel for Coseco during the argument, it appears that there is an easy path for Mr. Tipping to pursue benefits in this case. As reviewed above, section 37(8) of the Schedule allows Mr. Tipping to comply with the request for an examination, after which, depending on the outcome, he would be entitled to receive benefits or to proceed with his application to the LAT. Even if Mr. Tipping succeeded on an appeal to this Court, it is likely that the most he could achieve is an order by this Court that the LAT hold a fresh hearing on the issue of his compliance with the insurer examination. The outcome of that hearing would be uncertain and may lead to a further procedural morass. This is a far more convoluted and uncertain path than agreeing to comply with a newly scheduled insurer’s examination, whether in person or by way of documents or both.

Additional comment

[44] It is not possible to conclude this decision without commenting briefly on the approach Mr. Tipping and his counsel have taken to the proceedings below. The core issue in this case is Mr. Tipping’s entitlement to accident benefits. Rather than focusing on this issue, the record shows an ongoing and relentless focus on peripheral issues, such as Coseco’s use of a third party in organizing the examinations and the LAT’s response to counsel’s letter of June 26, 2019, which itself was clearly an inappropriate communication with a decision maker. This course of conduct has not proven helpful to Mr. Tipping in pursuing what may be a legitimate claim for significant benefits. I strongly urge Mr. Tipping and his counsel to stop this course of conduct and to focus on what is at the core of Mr. Tipping’s claim.

Costs

[45] Coseco seeks $10,659.27 in costs. In contrast, at the end of the hearing, Mr. Tipping’s lawyer advised that he sought costs in excess of $60,000 on a partial indemnity basis and in excess of $100,000 on a substantial indemnity basis. Given the contrast between these amounts and the multiple issues raised on the application for judicial review, I find that than an award of $10,000 in costs to Coseco is fair and reasonable in the circumstances of this case.

Conclusion

[46] For the reasons above, the application for judicial review is dismissed with costs of $10,000 payable by Mr. Tipping to Coseco.

Favreau J.

I agree _______________________________

Penny J.

I agree _______________________________

S.T. Bale J.

Released: August 3, 2021

CITATION: Tipping v. Coseco Insurance Company, 2021 ONSC 5295

DIVISIONAL COURT FILE NO.: 390/20

DATE: 20210803

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

Penny, S.T. Bale and Favreau JJ.

BETWEEN:

Richard Tipping

Applicant

– and –

Coseco Insurance Company and Licence Appeal Tribunal

Respondents

REASONS FOR JUDGMENT

Favreau J.

Released: August 3, 2021