Court File and Parties

CITATION: Noble v. Economical Insurance Company, 2024 ONSC 6985

DIVISIONAL COURT FILE NO.: 324/24

DATE: 2024-12-13

SUPERIOR COURT OF JUSTICE – ONTARIO DIVISIONAL COURT

RE: JENNIFER NOBLE, Appellant AND: ECONOMICAL INSURANCE COMPANY, Respondent

BEFORE: Backhouse, Matheson and O’Brien JJ.

COUNSEL: Robert Seredynski, for the Appellant Stephen Whibbs, for the Respondent

HEARD: December 10, 2024, at Toronto

Endorsement

[1] The appellant challenges the decision of the Licence Appeal Tribunal (LAT) dated April 30, 2024 (the Decision), which dismissed her application because the appellant did not provide a reasonable explanation for her failure to attend an insurer’s examination by a psychiatrist. At the hearing of this appeal, the appellant narrowed the issues. The parties agree that the appellant has now attended for the psychiatric examination and she has brought another application to the LAT, seeking different benefits, with a hearing date in 2025. The appellant no longer asserts that there was an error in law in finding that this examination was reasonably necessary. She seeks to set aside the Decision on other grounds.

[2] For the reasons set out below, the appeal is dismissed.

[3] The appellant was a pedestrian in a motor vehicle accident in August 2019. In September 2019, she sought benefits under the Statutory Accident Benefits Schedule (SABS) from the respondent insurer.

[4] The appellant submits that when her accident benefits were largely exhausted, she submitted an application for determination of catastrophic impairment (CAT). She served the OCF-19 and related reports in January 2022. Her multidisciplinary assessment included a lengthy assessment by a psychiatrist.

[5] The assessment submitted on behalf of the appellant concluded that she met the criteria for CAT under criteria 7 (mental or behavioural impairment excluding traumatic brain injury combined with a threshold amount of physical impairment) and 8 (marked impairment in social functioning, concentration, persistence/pace, adaption due to mental or behavioural disorder). The assessment under these criteria relied on her psychiatric assessment either entirely (criteria 7) or in large part (criteria 8).

[6] In response to the application, the respondent had a physician conduct a file review of the available documentation. The report, dated in March 2022, concluded that the application of criteria 7 and 8 required direct assessments. The respondent provided a copy of the report to the appellant and requested certain medical records before scheduling the insurer examinations.

[7] In the Fall of 2022, the respondent provided the appellant with a list of the names, specialties and appointments for the insurer examinations. The respondent also offered to and did provide an English reader and transportation to the appointments.

[8] The appellant attended for the psychiatric examination as scheduled in March 2023. However, she became uncomfortable during the appointment and, after a break to contact her counsel, she left without completing the examination. Her counsel then notified the respondent that the appellant’s needs had not been accommodated and that the appellant was treated poorly by the physician and his office staff.

[9] Counsel then exchanged email about arranging to complete the psychiatric examination. The appellant’s counsel recounted his client’s medical difficulties and indicated that the drive to the assessment was stressful, that she witnessed a nasty phone call with the receptionist and that by the time she saw the physician she had a bad headache. Her counsel indicated that the questionnaire reader inappropriately said the physician wanted yes or no answers and the physician said she should listen to the reader. Counsel said the reader also discussed the documents with clinic staff and that the physician appeared annoyed. Counsel asked that the appellant be accommodated. The respondent’s counsel replied that they would certainly try their best to accommodate the appellant.

[10] About ten days after the appellant’s incomplete appointment, the respondent learned that the psychiatrist in question had been the subject of professional discipline.

[11] The respondent notified the appellant of a new appointment, in June 2023, with a different psychiatrist. In response, counsel to the appellant said that it would not be reasonable or necessary to retain a different expert and the remainder of the assessment ought to be completed by the original psychiatrist. However, after learning about the reason for having a different physician from respondent’s counsel, the appellant’s counsel replied that given the highly intrusive nature of insurer’s examinations, it would not be reasonable or necessary for the appellant to attend a second psychiatric assessment.

[12] Counsel to the respondent replied noting that the discipline decision and timing was out of their control. Since the assessment by the first assessor could not be completed in the circumstances, the respondent needed a new assessment with a different assessor. Another appointment was made, with another different psychiatrist, this time in January 2024. The hearing was scheduled for February 2024.

[13] In early January, 2024, the respondent requested a three-month adjournment of the LAT hearing given that the new appointment was only a week before the hearing date. The appellant did not consent. The adjournment request was denied but the Tribunal ruled that the respondent could seek an order at the hearing, barring the applicant from proceeding with her application under s. 55(1)2 of the SABS.

[14] After the adjournment was denied, counsel to the appellant indicated that the appellant would not be attending for the third-scheduled insurer’s examination.

[15] The respondent brought the motion to bar the application from proceeding under s. 55(1)2 of the SABS. Subsection 55(1)2 provides that an insured person shall not apply to the LAT if the insurer has given notice that it requires an examination under s. 44 but the insurer person has not complied with that section. Section 44 sets out when an insurer’s examination may be required, including for the determination of whether an impairment is a catastrophic impairment.

[16] At the outset of the LAT hearing, the two-member panel of the LAT addressed the motion. In addition to the written materials regarding the motion that had been provided from both parties, the LAT permitted the appellant to testify. She did so, expanding on her experience when she attended at the first assessment and her reaction to learning that the physician had been disciplined. The LAT also heard oral submissions.

[17] The LAT granted the motion orally, with reasons to follow. The appellant’s counsel asked whether the ruling meant that the appellant was barred from proceedings with the treatment plans in the application. He submitted that they amounted to over $40,000, which was above her policy limits. One of the LAT adjudicators replied that his understanding was the appellant had exhausted the funding for non-CAT benefits. Appellant’s counsel confirmed that was correct. The adjudicator indicated that, that being the case, if the CAT issue was not moving forward, the adjudicator did not see how the other claims could move forward.

[18] At the hearing before this Court, appellant’s counsel submitted that the above answer given to the LAT regarding limits was wrong. Counsel submitted that there was at least about $17,000 of coverage available. However, this is not the subject of evidence before this Court and it is disputed. The respondent submits that treatment plans had been approved up to the non-CAT policy limits.

[19] At the hearing, counsel to the appellant also submitted that if she was barred from proceeding, she should instead have an adjournment to attend for the psychiatric assessment. This alternative request was not granted.

[20] As set out in the Decision, the LAT concluded that the appellant was barred from proceeding under s. 55(1)2 because of her failure to attend for the insurer’s psychiatric assessment. The LAT found that the examination was reasonably necessary and that the circumstances that prevented the completion of the first examination did not negate the insurer’s entitlement to an assessment. With respect to a reasonable explanation for not attending, the submission that it was intrusive was not sufficient. The LAT also declined to exercise its discretion under s. 55(2) to permit the appellant to proceed despite not attending the insurer’s examination.

[21] The appellant did not seek a reconsideration. Unlike this appeal, which is limited to questions of law, the LAT Rules may permit a reconsideration where there has been an error of fact.

[22] The respondent submits that this appeal should not proceed because the appellant did not seek a reconsideration before the LAT. While that may often be a desirable step and may provide broader rights of review than this appeal, we did not decline to hear the appeal on this ground.

[23] This appeal is limited to questions of law, which include issues of procedural fairness. The standard of review is correctness. The issues still being pursued are as follows:

(i) whether the LAT erred in law in barring the entire application; and,

(ii) whether there was a breach of procedural fairness.

[24] The appellant submits that the LAT erred in law because it barred her whole application. The appellant had applied for fourteen types of benefits as well as the CAT designation. The appellant submits that the non-attendance only related to the CAT assessment, not the other benefits. This ground is tied to the alleged factual error described above.

[25] Based upon the answer appellant’s counsel gave to the LAT at the hearing (that the appellant had exhausted the limit for the non-CAT benefits), the CAT designation was a prerequisite to an application for more coverage for all of the claimed benefits. The LAT did not err in law in treating the claimed benefits as tied to the CAT designation (and the failure to attend the insurer’s examination) based on the facts as confirmed to the LAT. No legal error has been shown. The appellant had the opportunity to pursue the (disputed) factual correction in a reconsideration and decided not to do so. This Court cannot interfere with respect to these disputed facts.

[26] Moving to the second issue, procedural fairness, we have due regard for the factors in Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817.

[27] The appellant submits that she was denied procedural fairness for a number of reasons. First, she submits that the Decision is unfair because her LAT hearing did not proceed and she is prejudiced because limitation periods prevent her from re-applying to the LAT for the benefits sought in her application. This issue was raised by counsel at the hearing. This is not a matter of procedural fairness. It is an indirect challenge to the legislation, which provides for the consequences when an insured person fails to attend an insurer’s examination that is reasonably necessary. We are not persuaded that applying the section is a denial of procedural fairness.

[28] The appellant further submits that it is unfair to deprive her of the sought-for benefits, which may not be above the non-CAT limits. Again, she relies on the (disputed) assertion that despite the answer given to the LAT, the non-CAT limits have not been exhausted. That issue has been addressed above.

[29] The appellant further notes that she did attend other insurer examinations. However, she has not shown that it was unfair to dismiss her application because she failed to attend only the psychiatric assessment. As shown by her own CAT assessment, the psychiatric assessment was central to both criteria she relied upon. Further, it is no longer at issue that the examination was reasonably necessary.

[30] The appellant further submits that she was denied the opportunity to make submissions under s. 55(2), which gives LAT the discretion to permit an application to go forward despite non-compliance. The appellant knew, at least from the denial of the adjournment, that there could be a motion under s. 55. That motion was then brought and written and oral submissions were made by both sides, as well as oral submissions at the hearing. The appellant had the opportunity to make her submissions and if she wanted, the benefit of a ruling in her favour under s. 55(2). The process was not unfair.

[31] Nor has the appellant shown any reviewable error in not granting her alternative request, made at the hearing, for an adjournment to attend at the assessment. The appellant submits that the respondent had waited until the 11th hour to push for a further assessment. This was not the case. The second appointment was for June 2023, ample time before the hearing in February 2024. The appellant refused to attend. The appellant refused to attend the third appointment as well.

[32] The appeal is therefore dismissed with costs to respondent in the agreed amount of $7,500.

Backhouse J.

Matheson J.

O’Brien J.

Date: December 13, 2024