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.

Mayers v. Aviva Insurance Company (19-012033)

The claimant sought entitlement to IRBs. The claimant had failed to attend IEs, and the insurer argued that the claimant could not proceed with the LAT dispute. The claimant argued that the insurer supplied boilerplate statements which failed to give meaningful notice. Vice Chair McGee concluded that the operative part of the court’s holding in Hedley v. Aviva (that mere boilerplate statements do not provide a principled rationale to which an insured can respond, and therefore constitute no reasons at all) was that reasons must provide a principled rationale to which an insured can respond. To the extent that boilerplate language can effectively communicate the basis of the insurer’s decision and provide a principled basis for an insured person to challenge the denial of a benefit or decide whether to attend an IE, that language may be sufficient to meet the requirements for reasons under the Schedule. Vice Chair McGee held that the claimant was barred from commencing a proceeding before this Tribunal because she failed to attend an IE that the insurer properly requested under section 44 of the Schedule. Vice Chair McGee found that the “medical and any other reasons” the insurer cited in the Notice of Examination set out a principled rationale based fairly on the claimant’s file.

Gordon v. Royal & Sun Alliance (19-012000)

The claimant sought removal from the MIG and entitlement to various medical benefits. The insurer scheduled IEs, which the claimant refused to attend, arguing that the insurer should conduct a paper review. Vice Chair McGee rejected the claimant’s argument that section 44(3)(a) bars the insurer from requesting an in-person IE for a MIG determination. Moreover, the benefits in dispute were not payable within the MIG as they would have exceeded the funding available for minor injuries. Vice Chair McGee found that the Notices of Examination satisfied the requirements of section 44(5) as they clearly stated the medical and other reasons for the examination. The claimant had not provided a valid explanation for his non-attendance and in the circumstances, it would be inappropriate to permit his application to proceed. The claimant was barred from proceeding with the LAT dispute.

Ai v. Intact Insurance Company (19-005110)

The claimant requested reconsideration of the Tribunal’s previous decision barring his LAT Application for refusal to attend IEs. The claimant alleged that Vice-Chair Farlam did not properly interpret the SABS, that the statutory notice requirements in the IE notice letters was not met, and that the IEs should have proceeded by way of paper review and that by forcing the claimant to attend an in-person, the IE amounted to a “reverse onus”. The claimant further alleged that Vice-Chair Farlam made a significant error of law for ordering him to attend in-person IEs. Vice-Chair Farlam denied the request, noting that the original decision included references to many of the claimant’s submissions, showing that all evidence was taken into account; she further noted that she had in fact not ordered the claimant to attend an IE, but rather barred him from disputing the MIG before the Tribunal due to his past failures to attend.

R.B. v. Aviva Insurance Company of Canada (18-011209)

The insurer requested reconsideration of a decision that found the claimant was not precluded from applying to the LAT for failure to attend IEs. The LAT found in its initial decision the insurer’s IE notices for attendant care and psychological assessments did not comply with the SABS because it did not provide sufficient medical and other reasons. The insurer argued that the Tribunal placed too high a burden on the insurer in detailing the medical and other reasons, and that the Tribunal failed to take into account the lack of medical records provided by the claimant to support the alleged injuries. Adjudicator Maleki-Yazdi agreed with the claimant’s submissions that no matter what information the insurer had at the time it requested an IE, it was required to comply with s.44(5)(a) of the SABS. Adjudicator Maleki-Yazdi dismissed the reconsideration request.

Baskaran v. Co-operators General Insurance Company (19-012169)

The claimant applied to the LAT disputing entitlement to IRBs and two medical benefits. The insurer had requested IEs to address the post-104 week IRB test, which the claimant refused to attend. The insurer argued that the claimant could not proceed with the dispute until attending IEs. The claimant argued that she had attended IEs addressing the pre-104 IRB test, and that the insurer was not permitted to assess for a benefit it was not paying. Adjudicator Grant agreed with the insurer and barred the claimant from proceeding with the dispute. He held that the insurer was not required to re-instate IRBs in order to assess post-104 week IRB entitlement. The claimant had submitted multiple reports addressing the post-104 week IRB test, while the insurer had none. Because of the change in statutory test, it was reasonable for the insurer to assess the claimant for entitlement, particularly given that she had obtained reports supporting the benefit. The prejudice to the insurer if it did not have its own assessments to address the IRB test was greater than the prejudice to the claimant of being required to attend. There was also a clear change in the claimant’s circumstances as her son had bene fatally stabbed after the insurer’s initial IRB IEs, and the claimant psychological functioning had worsened considerably.

N.A. v. Aviva General Insurance (19-003283)

The claimant applied to the LAT for NEBs, ACBs, and various medical benefits. The insurer argued that the claimant failed to attend IEs and was not permitted to proceed with the LAT dispute until attending. Adjudicator Hines held that the claimant could not proceed with her claims for ACBs, an in home-assessment, or on treatment plan for chiropractic services. The IE notices for those benefits contained all information required by section 44. The medical reasons indicated that the claimant’s injuries fell within the MIG (among other things). The claimant was permitted to proceed with the other aspects of her claim as the IE notices did not set out sufficient medical reasons. In particular, the insurer wrote in the deficient IE requests “the disability period appears to be inconsistent with the diagnosis or mechanism of the injury.” This wording was found to be insufficient as it was not specific to the claim’s injuries and would not be understood by a lay person.

M.E.R v. Aviva General Insurance Company (17-008924)

The claimant applied to the LAT seeking entitlement to ACBs in the amount of $2,479 per month and various medical benefits for physical treatment, psychological treatment, occupational therapy services, an orthopaedic mattress, the cost of clothing and personal expenses, and transportation expenses. The claimant was a pedestrian injured in a motor vehicle accident in a parking lot. The insurer’s Form 1 initially recommended ACBs in the amount of $297.76 per month. A subsequent insurer’s Form 1 recommended $0.00 for ACBs. The assessor opined that the provision of unnecessary support for self care tasks would promote unnecessary dependency on external supports which is not required in the course of rehabilitation. Adjudicator Gosio found that there was no objective evidence of ongoing physical impairments in the left upper extremities, and the insurer’s Form 1s were reasonable. The claimant was entitled to chiropractic and physiotherapy treatment, and ACBs in the amount of $297.76 per month for 10 months. Adjudicator Gosio found that the claimant failed to establish that 90-minute sessions of psychotherapy, as opposed to the approved 60-minute sessions, were reasonable and necessary. Pursuant to section 55 of the SABS, the claimant was barred from disputing entitlement to the orthopaedic mattress as she had failed to attend an IE assessment.

Omar v. Co-operators General Insurance Company (20-000085)

The insurer brought a motion to dismiss the LAT application for failure to attend IEs and failure to disclose relevant documents in a timely matter. Adjudicator Flude found that the claimant’s failure to attend properly scheduled IEs was grounds for dismissal of the LAT application. A reasonable explanation for non-compliance with the IE had not been provided. Adjudicator Flude found that there was no authority under section 33 to dismiss the application for failure to disclose documents. It was noted that section 33 has its own remedies, including suspension of benefits during periods of non-compliance, absent a reasonable excuse.

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.