Reconsideration Denied: Legality Of Third Party IE Vendors And Adjudicator Discretion In Hearing Formats by Gordon Lee

In 18-006654 v. Royal Sun Alliance Insurance[1], Associate Chair Jonathan Batty of the Ontario License Appeal Tribunal (“LAT”) addresses an applicant’s Request for Reconsideration of a Case Conference Order regarding: (1) the adjudicator’s denial of a production order, and (2) the format of the preliminary hearing. Associate Chair Batty denied this Request for Reconsideration for the following reasons.

Agency permitted in arranging Insurer Examinations: Insurers are not required to contract directly with regulated health professionals

Following a motor vehicle accident, the applicant submitted an Application for Determination of Catastrophic Impairment. The Insurer  subsequently contracted with HVE Healthcare Assessments (“HVE”), who scheduled a series of in-person Insurer Examinations (“IEs”) to be conducted by Dr. Khaled, a regulated health professional. However, the applicant refused to attend these IEs on the grounds that the contract made between HVE and the Insurer was unlawful. The applicant submitted that section 44 of the SABS required the insurer to contract with a “regulated health professional” to conduct the assessments[2], and that HVE, as an entity, was not a regulated health professional.  He further submitted that the insurer cannot retain a third party who contracts with regulated health professionals to perform IEs, as was the case here with the Insurer. 

Associate Chair Batty did not find these arguments persuasive as section 44 of the SABS does not prohibit insurers from retaining third parties to conduct IEs. He notes that the legal requirement under section 44 is only that whoever actually performs the assessment must be a regulated health professional.

The Insurer was thus within its rights to contract with HVE, a third party service provider, to arrange with Dr. Khaled to conduct the IEs – they were both acting as agents of the Insurer. This contract was lawful.

For this reason, Associate Chair Batty held that the adjudicator was right to deny the applicant’s request to produce the contract between HVE and the Insurer on the grounds that it was irrelevant.

Adjudicator’s discretion to determine hearing format

The adjudicator had ordered a preliminary hearing to take place in writing. The applicant requested a reconsideration to have this preliminary hearing take place orally instead.

Associate Chair Batty denied this request, affirming that it is within the discretion of the adjudicator to determine the hearing format. He found no breach of procedural fairness that would warrant a different hearing format.

Strict criteria for reconsiderations not satisfied

Associate Chair Batty emphasized the strict criteria for allowing a reconsideration (outlined under Rule 18.2 of the Rules of Practice and Procedure). The purpose of reconsiderations is to remedy serious breaches of procedural fairness or material errors, in order to reach a just and timely resolution[3]. There must have been a “significant legal or evidentiary mistake preventing a just outcome, where false evidence has been admitted, or where genuinely new and undiscoverable evidence comes to light after a hearing”[4].

He holds that the criteria has not been satisfied; a reconsideration was not warranted.

Key Takeaways

1. Insurers have the right to retain a third party service provider to arrange with a regulated health professional to conduct the IEs. Section 44 of the SABS does not require the insurer to contract directly with a regulated health professional to conduct the IEs. It only requires that the person performing the assessment be a regulated health professional.
2. Adjudicators hold the discretion to determine the format of the hearings, namely whether they take place in writing or orally.
3. Reconsiderations will only be granted where there would otherwise be a major breach of procedural fairness. The onus is on the applicant to prove that the criteria outlined under Rule 18.02 of the Rules of Practice and Procedure has been satisfied.

If you have a question about this decision or a similar file, please contact Eric Grossman at 416-777-5222