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.
