Cura v. Aviva Insurance Canada (2021 ONSC 2290)

The claimant sought judicial review of the Tribunal’s decision that her withdrawal of consent for the IE facility to possess her personal information amounted to IE non-attendance. The claimant’s reconsideration request had been dismissed as pre-mature. The Divisional Court dismissed the review, holding that it was premature. Parties are not to appeal or seek judicial review of a Tribunal decision until the matter has been finally decided by the Tribunal. The Court was critical of the claimant’s representatives, who had brought similar proceedings and putting up roadblocks to prevent IEs from taking place.

J.C. v. Aviva General Insurance Company (19-004734)

The claimant sought entitlement to various medical benefits, including medical cannabis, physical treatment, and a chronic pain program. The insurer argued that the claimant could not dispute two of the treatment plans due to IE non-attendance. The claimant responded that it wasn’t reasonable to request a psychiatric assessment for the medical cannabis. Adjudicator Johal found the insurer’s IE notice complied with section 44, and rejected the claimant’s argument that the IE request was not reasonable. The claimant was therefore barred from disputing the two treatment plans due to section 55. With regard to the remaining treatment plans, Adjudicator Johal held that the claimant failed to prove that the proposed treatments were reasonable and necessary, and dismissed the claims.

A.Q. v. Wawanesa Mutual Insurance Company (19-006903)

The claimant sought entitlement to ACBs and various medical benefits. The insurer argued that the limitation period barred the ACBs claim and that the claimant failed to attend IEs related to the medical benefits claimed and was unable to dispute entitlement until attending the IEs. Adjudicator Boyce held that the insurer’s denial of ACBs in which it requested IEs triggered the limitation clock, even though the claimant did not attend the scheduled IEs. Adjudicator Boyce did not extend the limitation period under section 7 of the LAT Act because the claimant failed to show a bona fide intention to appeal the denial of ACBs within the two-years; the 45 day delay was excessive in the context of the claimant being represented and where the claimant provided no indication that he would be challenging the denial; and the insurer would suffer prejudice because the claimant prevented the insurer from obtaining contemporaneous assessments of ACBs entitlement. Regarding the medical benefits, Adjudicator Boyce held that the insurer’s IE requests were sufficiently particularized, that the requests were timely and in response to specific claims, and that the claimant’s failure to attend the IEs prevented him from applying to the LAT.

M.Y. v. Wawanesa Mutual Insurance Company (19-003973)

The claimant sought reconsideration of the Tribunal’s decision that she was barred from litigating her claim due to failure to attend two IEs. The insurer argued that the claimant’s request for reconsideration was filed beyond the 21 as required in the Rules. Vice Chair Farlam noted that the request was only a single business days outside of the 21 day time limit as required by Rule 18.1. Vice Chair Farlam relied upon Rule 3.1(a) in order to facilitate a fair, open and accessible process and allowed the matter to proceed. Vice Chair Farlam examined the facts in evidence and found that the Tribunal had not made an error with the original decision. She noted the consistency of facts in the decision, that the claimant did not provide a reasonable explanation for not attending the examinations, and that the claimant did not provide sufficient evidence to prove the claims made at the hearing. The request for reconsideration was denied.

K.A. v. Aviva General Insurance Company (19-002676)

The claimant sought entitlement to IRBs. The insurer argued that the claimant had failed to attend IE, and failed to comply with section 33 requests. Adjudicator Johal held that the claimant was barred from proceeding due to the IE non-attendance, reasoning that the IEs were reasonably required for determining entitlement to post-104 week IRBs even though IRBs had been terminated prior to the 104 week mark, and that the notices provided the requisite information. Adjudicator Johal rejected the insurer’s section 33 defence because section 33 did not prevent the Tribunal from adjudicating the claim. The consequences of section 33 non-compliance ultimately go to entitlement to a disputed benefit.

J.A. v. Intact Insurance Company (19-005110)

The claimant disputed two treatment plans and sought removal from the MIG. The insurer requested IEs, which the claimant did not attend. Adjudicator Farlam held that the claimant was barred from proceeding with the dispute. She rejected the argument that the insurer could not request an IE to address the MIG. He unreasonably failed to attend the IE. She also noted that the IE requests advised that it was for both the MIG and a disputed treatment plan. She also held that an insurer was not required to conduct a paper review to address the MIG.

Y.R. v. Coachman Insurance Company (19-006234)

The claimant disputed a determination of catastrophic impairment and entitlement to attendant care benefits. The insurer argued that the claimant failed to attend an IE and was barred from proceeding with the hearing. Adjudicator Chakravarti permitted the claimant to proceed. The request for the IE to address attendant care benefits was not made in accordance with section 42 because the request was not made after receiving a new Form 1 or made following a request for an updated Form 1 from the claimant. However, the adjudicator indicated that the insurer could request a new IE in the future (and in advance of the hearing), if the request complied with section 42. In that regard, the adjudicator set out a timeline for the parties to make any necessary requests in advance of the hearing.

N.L. v. Aviva Insurance Canada (18-011431)

The claimant sought reconsideration of the Tribunal’s order that her non-attendance at an IE barred her from disputing entitlement to a psychological assessment. She argued that the Tribunal erred by not permitting the dispute to proceed. Adjudicator Maleki-Yazdi dismissed the reconsideration. She held that the Tribunal did not make any reversible errors. The claimant did not have a reasonable explanation for not attending the scheduled IE nor did she provide her availability for a rescheduled IE. For the same reasons, the Tribunal did not err by not exercising its discretion to allow the hearing to proceed.

S.S. v. RSA Insurance (19-005229)

The claimant sought removal from the MIG and entitlement to two medical benefits. The claimant refused to attend IEs and applied to the LAT more than two years after the denials. Adjudicator Boyce held that the limitation period applied and that he would not exercise discretion under section 7 of the LAT Act. The claimant provided no evidence of a bona fide intention to dispute the denials, and the delay was over six months. There would also be prejudice to the insurer because of the missed opportunity to assess the claimant. Furthermore, the claimant’s failure to attend the scheduled IEs barred the claimant from disputing entitlement to the two medical benefits. Because no treatment plans were permitted to be disputed, the claimant could not proceed with a standalone MIG dispute.

E.L. v. Wawanesa Mutual Insurance Company (19-003212)

The insurer argued that the claimant could not proceed with a LAT hearing because of his failure to attend an IE. The claimant argued that the IE notice was deficient and that the IE request was not reasonable. Adjudicator Punyarthi held that the IE request was reasonable and that the insurer was not required to provide a copy of the contract or retainer between it and the IE facility, or prove which records were given to the IE facility. The request for an IE was also reasonable as the last prior IEs had been performed two years prior and the insurer had to determine whether the MIG still applied to the claimant’s injuries. The adjudicator held that a paper review would not have been sufficient for the insurer at the time the IE was requested, and the insurer would have been prejudiced if a hearing were to proceed. Finally, Adjudicator Punyarthi rejected the claimant’s position that the Tribunal had the authority to reprimand the insurer for a breach of PIPEDA or for an alleged breach of the duty of good faith.