A videoconference hearing had been arranged in relation to catastrophic impairment and attendant care. Ahead of the hearing, the claimant filed a motion to exclude a report from the insurer relating to ACBs and alleged the insurer’s notice was deficient. The claimant argued that the resulting report and Form 1 should be excluded from the hearing as per N.M. v. Aviva. The claimant’s issue was with a notice relating to a CAT IE with an occupational therapist. The claimant stated that the notice stated only CAT was to be assessed, however, upon arrival the OT informed the claimant that ACBs were also being determined during the evaluation. The claimant request that only the ACB report be struck from the hearing for deficient notice. Adjudicator Mazerolle noted that the original IE notice on March 24, 2021 only referenced CAT as an issue being assessed. Following completion of the assessment, the claimant was not provided with any further written notice that ACBs would also be addressed in the coming report. The insurer did not mention this until June 21, 2021, which was beyond the five business day notice of a benefit being addressed by IE as per s. 44(6). Adjudicator Mazerolle noted that this was a breach of the SABS and a “serious impediment” to the consumer protection mandate, as it deprived the claimant of the chance to be an active participant in the adjusting process, which could not be remedied by a retroactive notice. The insurer argued that the claimant “accepted the scope” of the IE as the OT explained to the claimant that ACBs would be addressed upon their arrival, and the claimant consented. Adjudicator Mazerolle did not accept this argument, noting that definition of a waiver for a notice requirement under s. 44(6) needed to be between the insured person and the insurer, not with the IE assessor. The report and accompanying Form 1 were struck from the hearing record.
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