Facts of 17-004109 v. Intact
The applicant in this case was seeking a determination that he be deemed catastrophically impaired as a result of a motor vehicle accident on January 21, 2015. Intact denied the application and sought to conduct new neuropsychological and psychological IEs specific to the CAT determination. The applicant refused, arguing that the IEs were traumatic, that further examinations put his mental health at risk, and that further examinations would be duplicative or otherwise not reasonably necessary. Intact had conducted 13 prior IEs but could not complete them all as the applicant threatened suicide on one IE and terminated another one alleging that the assessor accused him of “feigning.”
The Tribunal, on a preliminary issue, held that until Intact was given an opportunity to conduct two insurer examinations, the applicant was precluded from proceeding with his appeal to the LAT. The Tribunal found that Intact was entitled to conduct its IEs as per the Schedule and imposed two terms on the parties:
- The parties are to cooperate in the scheduling and arrangement of IEs. This may include consideration of reasonable conditions to be approved by the applicant’s treating psychologist with respect to how the IE is to take place. For example, flexible timing, an agreement with respect to one assessor rather than a panel of assessors and whether a support person should attend with the applicant.
- If the parties are unable to agree on the reasonable conditions of the IEs then at the very least, the respondent is permitted to conduct the neuropsychological and psychological IEs by way of paper review in accordance with the Schedule.
Intact took issue with the terms imposed in the order and sought to have the 2nd of the terms struck arguing that the Tribunal violated the rules of natural justice.
Intact argued that the terms, particularly the second one, allowed the applicant to “control the process” in that he can refuse any compromise and force an IE in writing without the applicant’s attendance which placed Intact at a serious disadvantage.
The applicant argued that the terms were proper as the tribunal properly balanced the parties rights and the remedies available under the Schedule. He further argued that intact did not provide any of evidence that an in person hearing is required.
Vice Chair Shapiro found that the Tribunal was forced to do a “balancing act” between two diametrically opposed interests with a view towards a practical result. He refused to substitute his own balancing act with that of the Tribunal member who heard the parties’ written submissions, oral arguments, and the testimony of the applicant’s psychologist regarding the potential harm to the Applicant. Vice Chair Shapiro made it clear that the result was specific to the evidence the Tribunal heard. He noted that the Tribunal clearly believed that the risk of harm to the Applicant was very significant and that, without meaningful harm, the appropriate range of terms, if any, would be different.
It is important to note this result is very fact specific. If a Respondent is able to provide evidence regarding the necessity of an in-person assessment or showing that the Applicant is being uncooperative in scheduling IEs, the result may be different as might the case if there had not been so many IEs before these were sought.