In the matter of Maillet v. The Dominion of Canada General Insurance Company, the respondent filed a motion pursuant to s. 55(1) of the SABS, seeking to bar the applicant from proceeding to a hearing for an income replacement benefit (“IRB”). This section disallows applicants from pursuing a benefit if they did not attend a properly scheduled insurer examination. Section 55(2) provides the LAT discretion to allow non-compliant applicants to continue with their applications. The respondent alleged that the applicant did not attend an insurer’s examination with a physiatrist for the purpose of assessing entitlement to the post-104 week IRB, and therefore cannot contest that part of her application. 

Adjudicator Craig Mazerolle found the insurer’s actions were in compliance with the SABS and therefore, s. 55(1) was triggered. Specifically: 

  1. The insurer’s Notice of Examination and the reasons provided therein were valid and met the requirements of s. 44(5). 
  2. The examination was “reasonably necessary” pursuant to s. 44(1) for assessing the applicant’s entitlement to post 104 week IRB. The adjudicator found that the timing of the insurer examination, the reasonable nexus between the physiatry examination and the IRB, and because there was yet an insurer examination conducted by a physician focused on the applicant’s physical condition, made it so. 

Section 44(5) lists the requirements for a valid Notice of Examination and such notice to the insurer should set out the “medical and any other reasons” for the examination pursuant to s. 44(5)(a). Here, in finding the Notice of Examination valid and in compliance with s. 44(5)(a), the adjudicator noted that it laid out the following information: the benefit at issue, the relevant provisions of the SABS, and the basis for the proposed IEs. On this last point, the Notice of Examination indicated that the standard for entitlement to an IRB changes at the two-year stage and the insurer wanted to test whether the applicant met this new standard. Because the Notice of Examination provided the applicant with context about why the testing was being proposed, it met the consumer protection mandate for “reasons”. The Notice of Examination also included the remaining, necessary details required by s. 44(5). 

Nevertheless, despite s. 55(1) being triggered, the adjudicator exercised his discretion under s. 55(2) and allowed the applicant’s claim for an IRB to proceed to a hearing. The adjudicator accepted that there was prejudice for the respondent should the matter proceed to a hearing without the desired report, but he also found a demonstrated a genuine interest to participate in the insurer examination process by the applicant. He determined that a complete bar on pursuing the IRB would be highly and unduly prejudicial to the applicant’s interests. Of significance, the adjudicator writes “Striking a part of an applicant’s claim without a hearing is a remedy that should only be used when there is no other viable means to address the prejudice at hand.” He provides the following reasons for allowing the applicant’s IRB claim to proceed:

  1. The applicant provided reasonable explanations for missing at least three of the four scheduled insurer examination appointments: her health and concerns about COVID-19.
  2. The applicant participated in other IRB focused insurer examinations (FAE, psychiatric and vocational) which led the adjudicator to conclude she did not miss the insurer examination as a means of interfering with the insurer’s ability to assess her claim. 
  3. There was enough time prior to the start of the hearing for the parties to work together to re-schedule the insurer examination. 

This motion decision provides some guidance on when the LAT may exercise its discretion under s. 55(2). While insurers may be in full procedural compliance with the SABS and may seek an order under s. 55(1), an applicant’s failure to attend an insurer assessment for a claimed benefit may not be fatal to their claim at the LAT if prejudice to the respondent can be addressed and a reasonable explanation can be provided for missing the insurer examination.   

Further, this motion decision provides guidance to insurers as to what constitutes sufficient “medical and any other reasons” for a Notice of Examination to be in compliance with s. 44(5)(a), particularly with respect to assessments for post-104 week IRB. A Notice of Examination for a post-104 week IRB assessment should always indicate to the insured, with specific wording from the SABS that the test for entitlement to the IRB changes at the 104 week mark and the examinations(s) are for the purpose of assessing entitlement to the different standard for the IRB.

Kevin So is an associate and the author of this blog.  If you have a question about this blog or a similar decision, please contact Kevin at [email protected] or 416-777-5210.