16-002325 v Aviva Insurance Canada, 2017 CanLII 3366

May 16, 2017

Adjudicator: Nicole Treksler

Issue: Is the Applicant allowed to commence  proceeding at the LAT when they have not attended the insurer’s examinations?

Section 55(2) of the Schedule states that an insured person shall not commence a proceeding if they have not attended scheduled insurer examinations.  Section 44 states that the Respondent must make reasonable efforts to schedule assessments at a convenient time for the Applicant.  In this case the Applicant only offered availability on weekends whereas the Respondent only offered weekday availability since they did not have any assessors who schedule on weekends.

In terms of the law, the adjudicator held that a reasonable effort on the part of the Respondent would be to schedule the Applicant on days that the assessors are available.  The assessors are independent medical practitioners hired by the insurance company to perform examinations who generally work Monday to Friday 9 a.m. to 5 p.m.  Furthermore, the adjudicator held that it is not unreasonable to expect the Applicant to make herself available during those hours. As such, under section 55(2.) the adjudicator held that the Applicant shall not apply to the tribunal regarding her post-104 claim for income replacement benefits until she complies with the SABS.