Canada: LAT Application Barred Due To Missed Insurer Examinations

The recent License Appeal Tribunal decision in Amoh v. Pembridge Insurance, 2021 ONLAT 20-001280/AABS, addresses the issue of whether an applicant is barred from commencing a proceeding against the respondent when the applicant fails to comply with section 44 of the Statutory Accident Benefits Schedule (“SABS”) by not attending insurer's examinations (“IE's”). 

The adjudicator held that the applicant was barred from commencing a proceeding pursuant to section 55 of SABS, as a direct result of failing to attend properly scheduled IE's.

Background

The applicant was the driver of a vehicle that was struck from behind on December 29, 2016. As a result of the collision, the applicant sustained injuries to his neck, shoulders and back. Additionally, as a result of the motor vehicle accident, the applicant claimed that he was unable to perform the essential tasks of his self-employment. The applicant sought benefits from the respondent, Pembridge Insurance Company, pursuant to the SABS. The respondent provided the applicant with Income Replacement Benefits (“IRBs”).

On June 8, 2017, the respondent wrote to the applicant to advise of three upcoming IE's that had been scheduled to address concerns surrounding his IRBs and medical and rehabilitation benefits. One notice was ambiguous, as it had stated that the IE was scheduled to take place on the same day the letter was issued, however it further stated that the applicant was “not required to attend”. The remaining two letters were clear and advised the applicant of the two scheduled IEs, including time, location and that the applicant was required to attend. 

The applicant did not attend his scheduled IEs. In response, the respondent wrote to the applicant confirming that he did not attend his scheduled IEs, and advised him that the IEs would be rescheduled. The applicant was sent new IE notices on July 28, 2017 for IEs that were rescheduled for August 17, 2017 and August 24, 2017.

On July 28, 2017, the applicant advised the respondent that he had returned to work on July 10, 2017. The respondent replied on August 1, 2017, to confirm that the applicant's IRBs would cease as of July 10, 2017 (the applicant's return to work date). The respondent advised the applicant that no action was required on his behalf unless he wishes to dispute the decision to cease his IRBs. No further action took place and the applicant did not attend his rescheduled IEs, nor did he reschedule any of them.

The applicant subsequently applied to the License Appeal Tribunal – Automobile Accident Benefit Services, seeking entitlement to IRBs for the period from July 10, 2017 to December 29, 2018.

Issue

The issue before the Tribunal was whether the applicant is barred from commencing a proceeding as a result of having failed to comply with section 44 of the SABS by failing to attend scheduled IEs.

Analysis

The adjudicator found that the applicant failed to attend properly scheduled IEs and provided no reasonable excuse for his failure to attend the examinations. As a result, the adjudicator chose not to exercise his discretion to permit the applicant's application.

The adjudicator agreed with the applicant that the respondent's notice letter of June 8, 2017 was ambiguous, and that his non-attendance at that IE was reasonable. However, the respondent's July 28, 2017 notice for the rescheduled examination was unambiguous and in compliance with the SABS and therefore, the applicant was required to attend the rescheduled examinations.

The applicant argued that the respondent did not reach out to him prior to rescheduling the IEs, which he claimed was inconvenient for him. The adjudicator held that the respondent is not required to contact the applicant in advance of scheduling or rescheduling IEs. Furthermore, the adjudicator noted that the applicant made no effort to notify the respondent of the IEs being inconvenient.

The adjudicator stated that the applicant may not proceed with his application as a result of the prejudice to the respondent being incurable. The applicant is claiming entitlement to IRBs for the period from July 10, 2017 to December 29, 2018, and his non-attendance at the IEs leaves the respondent with no independent medical opinion on the applicant's entitlement to those benefits. As such, the respondent is prejudiced because it was never able to conduct an IE in alignment with the period for which the applicant claims entitlement to IRBs.

Conclusion

The respondent was prejudiced by the applicant's failure to attend properly scheduled IEs without a reasonable excuse. The adjudicator further held that the prejudice cannot be remedied by rescheduling the IE's now, considering that the period for which the applicant claims entitlement to IRBs ended more than two and a half years ago.

Therefore, the applicant was held to be barred from proceeding with his application pursuant to section 55 of the SABS for failing to attend properly scheduled IEs.

Rogers Partners LLP is an experienced civil litigation firm in Toronto, Ontario. The firm represents insurers and self-insured companies in numerous areas, including motor vehicle negligence, occupiers' liability, product liability, professional negligence, construction claims, statutory accident benefits, disability benefits, municipal liability, medical negligence, sexual abuse, and insurance coverage disputes.

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