The recent decision in Intact Insurance Company v. Beaudry, 2016 ONSC 6127 highlights the importance of the need for the development of standardized consent forms for section 44 examinations.

In this case, Anne Beaudry was involved in a motor vehicle accident on July 8, 2011 and subsequently applied to Intact Insurance Company for accident benefits. Intact paid her income replacement benefits for the duration of 104 weeks after the accident. As the 104-week point approached, Intact realized it needed to determine whether she was entitled to ongoing income replacement benefits, and therefore informed her of the need to attend insurer medical examinations pursuant to section 44 of the Statutory Accident Benefits Schedule to address this ongoing entitlement. Eventually, counsel for Ms. Beaudry and Intact reached an agreement on 5 assessors who would conduct the appropriate section 44 examinations.

Shortly after the agreement was made with respect to the section 44 examinations that would be conducted to address her ongoing entitlement to income replacement benefits, Ms. Beaudry submitted an OCF-19 to support a claim for catastrophic impairment. Thereafter, her counsel and counsel for Intact engaged in discussions on the terms of the consent forms that the section 44 assessors and Intact required to be completed by Ms. Beaudry for the completion of the requisite section 44 examinations. Unfortunately, the parties were unable to agree on such terms and therefore only one section 44 examination was completed. Ms. Beaudry’s benefits were suspended pending resolution of this issue. Intact then brought an Application seeking a determination of the rights between itself and Ms. Beaudry, and a declaration that she breached section 44 of the SABS due to her failure to sign the consent forms required by the assessors retained by Intact.

Intact’s main argument was that section 44 of the SABS required an insured to sign any consent form required by assessors and/or the insurer and its agents. Ms. Beaudry’s argument was that any consent form to be signed by an insured that provided consent for a section 44 assessment must be “reasonable and justifiable in the circumstances”, and that an insurer could not unilaterally dictate the terms of the consent form.

In reviewing the SABS, Justice Beaudoin stated that section 44 of the SABS was silent on the issue of the form of consent that may be required by an examiner. However, he indicated that the repeated use of the terms “relevant or necessary”, “reasonably necessary”, “reasonable efforts” and “reasonable examination” in sections 44(1) and 44(9) of the SABS, indicated that any consent form must be “reasonable”.

After reviewing the Insurer’s well-established duty of good faith and fair dealing with an insured, Justice Beaudoin held that in the absence of a prescribed form, the parties would benefit from collaboratively developing a standard form of consent.

Section 44 examinations are an integral part of adjusting an insured’s claim for benefits. This case highlights the consequences of there being a lack of standardized forms in the industry, for consent to undergo section 44 examinations. This case is sure to generate discussion in the insurance defence and plaintiff bar about the need for standardized consent forms, to eliminate this issue going forward.  Where a standardized consent form used to exist in the days of the Designated Assessment Centres more than a decade ago, it is perplexing why such a form cannot be fashioned again now.  The challenge, which was seemingly met in days of the DAC, and which is at the forefront now, is that each professional college of the various health disciplines has its own expectations and concerns.  In the meantime, with just a suggestion that counsel collaboratively develop the relevant consent forms, but without guidance as to what they should say, it is not hard to imagine the significant confusion and difficulty in conducting insurer examinations until there is some clarity on this point.

Questions or comments? Please contact our author, Suzanne Clarke, here.