Volume. 8 Issue. 21 – June 5, 2024
This week the Tribunal considers the reasons provided by the Applicant for not attending the scheduled Insurer’s Examinations (IE’s) and on what basis it would consider using the discretion afforded to it under s55(2) of the Schedule to permit the application to proceed.
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IE ‘Highly Intrusive’ – Not Acceptable Reason For Failure To Attend
Not Permitted to Proceed with CAT Dispute? – In 22-009483 v. Economical Insurance, the Applicant Jennifer Noble was involved in an automobile accident on August 12, 2019, and sought benefits, including determination that she was Catastrophically Impaired under criterion 7 and 8 along with several Treatment Plans. Economical arranged for an IE with Psychiatrist Dr. A. Liaqat on March 3, 2023. Noble having attended the office of IE became uncomfortable and after 90 minutes of examination requested a break to contact her counsel after which she left without completing the examination.
Economical learned approximately 10 days after the examination of March 3, 2023 that Dr. Liaqat was subject to professional disciplinary action. They attempted to reschedule another IE June 21, 2023, but Noble did not attend because she had already attended the IE on March 3, 2023 and a further examination was not reasonable or necessary due to the intrusive nature of the examination. The Tribunal noted ‘It is significant that the applicant’s counsel acknowledged in his correspondence that IE was not completed, characterizing it as “highly intrusive”. Economical rescheduled another IE for January 2024 and once again Noble refused to attend. Economical brought a Motion for an Order barring the Application from proceeding pursuant to s. 55(1)2 of the Schedule, because the Applicant failed to participate in an IE pursuant to s.44 of the Schedule.
The Tribunal found that Noble acknowledged that the IE was reasonably necessary because she attended the examination on March 3, 2023. Further that the circumstances preventing the completion of the IE did not negate Economical’ s entitlement to an IE if it was reasonably necessary, despite the inherently intrusive nature of IEs. Referring to the Tribunal decision in 19-004734 v. Aviva General Insurance Company, Economical was entitled to select its own examiner without interference from Noble, subject to reasonable efforts in respect of time, date and location, as long as the IE is reasonably necessary and in accordance with s. 44 of the Schedule.
Having found the IE of March 3, 2022 was not completed, and the burden of proof lies upon Noble to provide a reasonable explanation for not attending the examination, according to the Tribunal decision in 17-002921 v. Aviva Insurance Canada. “It is not necessary to make a finding of fault for the failure of the examination to be completed. If an insurer is found to have a reasonably necessary basis for an examination, the burden of proof lies upon the insured person to provide a reasonable explanation for not attending the examination”. Noble’s refusal to attend the second IE because it was too intrusive was not a reasonable explanation for non-attendance. The Tribunal jurisprudence has established that IEs are by their nature intrusive, but a necessary step to determine entitlement to accident benefits.
Noble was barred from proceeding with her Application for CAT determination and several Treatment Plans pursuant to s. 55(1)2 of the Schedule for failing to attend the rescheduled IE’s. The Tribunal could exercise its discretion under s.55(2) Schedule to permit Noble to proceed with her application despite not attending an IE. However, having found that Noble failed to provide a reasonable explanation for non-attendance and that she did not make any submissions as to the reasons why the Tribunal should exercise its discretion the application was dismissed.
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