Lengyel v. The Licence Appeal Tribunal (2023 ONSC 1623)

The claimant appealed and sought judicial review of the Tribunal’s decision to dismiss her application due to non-attendance at an IE. The Court dismissed the appeal and judicial review, holding that the Tribunal properly considered the SABS and the materials before it, and the result was a reasonable outcome available to the Tribunal under the SABS. The claimant failed to prove that she was not afforded procedural fairness in the hearing.

[L.D.] v. Gore Mutual Insurance Company (17-002762)

The claimant was involved in an accident on November 25, 2015 and sought attendant care benefits. The insurer denied ACBs and the claimant filed a LAT Application. The insurer filed a motion requesting that the claimant’s LAT Application be barred pursuant to s. 55 of the SABS for failure to attend three properly scheduled independent medical examinations to address ACBs. After the insurer filed the motion, the claimant was accepted as CAT and advised the LAT that she wanted to attend the IE in order to move the matter forward. In response, the insurer requested an Order staying the proceedings until the claimant attended the IE. Vice-Chair Flude noted that the claimant had in fact attended numerous other assessments addressing attendant care with both s. 25 and s. 44 providers. The claimant argued that the subject notice was not compliant with the SABS and did not include sufficient medical and other reasons. Vice-Chair Flude disagreed, noting that the letter made specific references to the claimant’s medical records noting an improvement in physical ability, as well as the fact that the disputed Form 1 was over three times the recommended amount, which satisfied the insurer’s obligations. As such, the claimant’s failure to attend the April 18, 2017 IE triggered s. 55. Vice-Chair Flude did not consider the other two failures to attend, as both had been cancelled by the insurer for various reasons. Vice-Chair Flude opined that while the claimant’s failure to attend the IE may be sufficient to strike the claim, she had advanced her claim vigorously since then and had been accepted as CAT. The claimant also expressed a willingness to attend the IE in order to advance the claim. As such, Vice-Chair Flude opted not to issue an Order staying the Application until the claimant attended, but rather issued an Order for the parties to agree on a mutual date for IE attendance within 30 days, and for the IE to take place within 90 days. Should the parties not be able to agree to such dates, they were to submit three proposed each dates to Vice-Chair Flude, who would then decide the date. Should the claimant not attend the IE this time, the insurer would be allowed to request an Order staying the Application.

Spiegel v. Intact Insurance Company (21-002468)

The insurer brought a preliminary issue motion to bar the claimant’s claim for non-attendance at IEs. Although he had attended the IE clinic at the appropriate time, he had become aggressive and refused to proceed until the clinic agreed to use the consent form he had personally prepared. At the motion hearing, the claimant argued that s. 44 provided him the right to require his IE assessors to have expertise in Platelet-Rich Plasma therapy (the treatment modality that was being proposed in the disputed treatment plans that had triggered the IE). He also submitted that s. 44 required an assessment to be “reasonably necessary”, which included providing information regarding the medical specialization of the assessors. Adjudicator Flude rejected the claimant’s position and stated that the terms “reasonably necessary” in s. 44(1) were written to prevent insurers from attempting to wear out a claimant by requiring them to attend multiple IEs for the same matter. Adjudicator Flude noted that the claimant had unsuccessfully raised the same argument before the LAT regarding s. 44 and his IE assessors’ expertise on a previous occasion. He noted that the claimant’s reassertion of the same argument appeared to be an abuse of process. He found that the claimant had not identified the elements of his IE clinic’s consent form that were problematic, and as a result, that it appeared to be an excuse to refuse to attend IE assessments. Adjudicator Flude held that the claimant was barred from proceeding under s. 55(1), and that the circumstances did not warrant an exercise of the LAT’s discretion under s. 55(2) and (3).

Mahoney v. Jevco Insurance Company (21-004916)

This motion was brought by the claimant for a declaration that she was not barred from proceeding to a hearing due to non-attendance at a psychological IE. The claimant argued that the Notice of Examination for the IE did not satisfy the requirements in s. 44, and that s. 55(1) was not triggered because the IE had been requested after she had filed her LAT application. Adjudicator Mazerolle found that the Notice of Examination satisfied the requirements under s. 44 as it provided sufficient medical and other reasons for the assessment. Although it was concerning that the insurer had served the Notice of Examination in September 2021, despite the disputed treatment plan having been submitted on March 23, 2021, Adjudicator Mazerolle found that the insurer had requested medical records from the claimant on March 29, 2021, one week after the disputed treatment plan had been submitted, and had not received these records until August 21, 2021. He reasoned that the insurer had waited to receive these records before setting up the IE and had requested the IE with the intention of properly adjusting the claim. The adjudicator rejected the claimant’s argument that s. 55(1) would only be triggered if the IE was requested before a LAT application was filed, as this would impair the insurer’s ability to seek assessments under s. 44 and because it went against the principle that an insurer’s duty to adjust a claim in good faith did not end when litigation began. However, Adjudicator Mazerolle exercised the discretion granted under s. 55(2) and permitted the application to proceed because there remained ample time for the IE to be completed before the hearing.

Yevdokymova v. Economical Insurance (21-000502)

The claimant sought a catastrophic impairment designation and entitlement to various medical benefits and attendant care benefits. The insurer argued that the claimant was barred from disputing entitlement because an earlier hearing regarding NEBs already concluded that the claimant did not suffer the majority of the injuries or impairments allegedly sustained in the accident. The insurer also argued that the claim for ACBs was barred due to the claimant’s failure to participate in an IE, as the claimant had put conditions on her attendance, including the presence of her own occupational therapist. In response, the claimant argued that the current dispute was for different benefits, and as such, the earlier decision on NEBs was irrelevant. The claimant also argued that she ought to be permitted to have her own occupational therapist observe the in-home assessment requested by the insurer. Vice Chair Flude agreed with the insurer and held that the claimant’s current application was barred by res judicata. Although the specific benefits and designation at issue were different than the NEB hearing, the findings of fact in the NEB hearing were so closely related that to allow the claimant’s application to proceed would amount to an abuse of process. Vice Chair Flude also held that the claimant could not impose conditions on her attendance and participation in the requested in-home IE. The insurer met all requirements of section 44 when requesting the IE. As such, the claimant’s failure to participate in the format requested by the insurer triggered section 55. Vice Chair Flude dismissed the dispute in relation to a catastrophic impairment, and stayed the dispute in relation to ACBs until the claimant participated in the in-home IE.

Maillet v. The Dominion of Canada General Insurance Company (20-011519)

The insurer brought a motion requesting that the claimant’s application for IRBs be barred under s. 55(1) due to IE non-attendance. The claimant had failed to attend a post 104-week physiatry IE on four occasions. Adjudicator Mazerolle found that the Notice of Examination provided sufficient medical and other reasons for the examination under s. 44. Nonetheless, he exercised his discretion permitted under s. 55(2) to allow the IRB claim to continue. He found that the claimant had participated in other IEs, which demonstrated her interest to pursue the claim. He noted that two of the missed four IEs had been postponed due to COVID-related concerns, and that the claimant had been ill for the most recently rescheduled IE. Above all, Adjudicator Mazerolle found that the parties had enough time before the hearing to reschedule and complete the IE and ordered that the IRB claim proceed.

Bagherian v. Aviva Insurance Company (2022 ONSC 3103)

The claimant appealed the Tribunal’s decision dismissing his application due to repeated non-attendance at IEs. The Court dismissed the appeal, holding that the LAT had the legal authority to dismiss the application. The claimant’s failure to cooperate in obtaining IEs interfered with the insurer’s ability to participate in the process before the Tribunal, and caused delay in the timely determination of the matter before the Tribunal. The Tribunal was justified in concluding that the claimant’s behaviour amounted to abuse of process. The Court also rejected the claimant’s argument that the Tribunal did not have the power to require that he sign a consent as part of the IE process. The Court affirmed that the Tribunal does have such power as part of its power to require the claimant to cooperate in the IE process.

Sugunarajan v. Wawanesa Mutual Insurance Company (21-000665)

A hearing had been scheduled to start on July 18, 2022. Prior to the hearing, the claimant filed a Notice of Motion seeking to strike certain expert reports of the insurer from being introduced into evidence, alleging that the notices of examination did not contain sufficient medical and other reasons for the examination. Although the claimant did attend the examinations, the claimant argued that the deficient notices meant that the resulting reports must be struck from the record. The claimant also sought an order to add an issue to the hearing, an order finding that IRBs were improperly denied, and an order for payment of IRBs (with interest) based on the improper denial. Adjudicator Mazerolle ruled that several of the IE notice letters were not valid, noting the test in M.B. v. Aviva. As a result, he ruled that those reports attached to the deficient notice letters would be struck from the hearing for breaching s.44(5). Adjudicator Mazerolle noted that, as these offending reports were attached to post-104 IRBs, the insurer could always arrange for further post-104 IEs. As the other deficient notices dealt with pre-104 IRBs and ACBs, which were attached to a different test within 104 weeks of the accident, the insurer could not turn back the clock and re-assess the claimant, which would irrevocably damage the insurer’s defence and the reports, despite being attached to deficient notices, were allowed. Adjudicator Mazerolle ruled that the insurer’s IRB denial letter was compliant with s.37(4), thus payment of IRBs was not to be considered as there was no technical violation.

Samra v. Zenith Insurance Company (20-003287)

The claimant applied to the LAT disputing numerous treatment plans for therapy, assessments, and psychological treatments. The insurer raised a preliminary issue and argued that the claimant was barred from proceeding with the dispute under section 55 for failure to attend IEs to address IRBs. Vice-Chair McGee noted that the claimant had not in fact disputed IRBs at the time of the hearing, but rather the insurer was attempting to bar the claimant’s anticipated claim should IRBs be denied in the future. The insurer argued that the claimant had a “long history” of missing IE appointments, Vice-Chair McGee noted that the assessment in question was in fact terminated by the assessor themself, rather than the claimant, though the insurer argued that the termination was due to the claimant’s abusive behaviour and attempts to intimidate the assessor in question. Vice-Chair McGee noted that the IE assessor did publish a report noting the termination, but made no mention of the claimant being abusive, swearing or attempting to intimidate her. The only evidence provided at the hearing of swearing or abusive behaviour was in the form of an email sent by the adjuster to the claimant’s representative months after the assessment occurred. The email mentioned that the claimant was swearing, but made no mention of abusive behaviour. Vice Chair McGee did not find the insurer’s evidence persuasive, as the email was from a third-party who was not present during the assessment, and the IE assessor never alleged the supposed behaviour of the claimant in her own report. Vice-Chair McGee ruled that the claimant had made himself reasonably available for the assessment, which had been rescheduled numerous times due to COVID and did not bar the claimant from an IRB claim.

Fard v. Economical Insurance (19-010239)

The claimant applied to the insurer for IRBs and ACBs. The insurer paid the claimant an IRB from her initial eligibility until August 22, 2019. The insurer had arranged four IEs in July of 2019, which the claimant did not attend. The insurer rescheduled all four IEs to provide the claimant another chance to attend, but she failed to attend all four IEs yet again. Similarly, the claimant failed to attend numerous IEs to address ACBs, which were also rescheduled but resulted in no-shows. The insurer paid the claimant ACBs up until it was suspended for non-compliance with section 44. The claimant argued that the IEs were neither “reasonable nor necessary” to determine her entitlement to the benefits. The insurer raised a preliminary issue that the claimant’s application disputing IRBs and ACBs should be dismissed under section 55 and relied upon the test in A.G. v. Allstate Insurance. Adjudicator Grant ruled that the insurer had provided proper notice to the claimant of the IEs in question, that the notices were compliant with the SABS, and that the IEs were medically reasonable and necessary in order to determine entitlement to disputed benefits based upon the claimant’s own medical evidence showing shoulder surgery. Adjudicator Grant ruled that the claimant’s application was barred in its entirety.