By Jonathan Beiles
The decision of the Ontario Divisional Court authored by Justice Favreau on behalf of a unanimous panel which also included Justices Penny and Bale in Tipping v. Coseco Insurance Company, ONSC 5295 serves as a lesson on litigating an accident benefits claim. In Tipping, the Divisional Court dismissed the insured’s application for judicial review of the LAT’s decisions in relation to a catastrophic injury benefits claim with costs of $10,000 against the insured.
Prior to the initial LAT hearing, Tipping received a section 44 Schedule notice for a neuropsychological Insurer’s examination (“IE”) from his insurer, Coseco. Tipping refused to attend the IE on the grounds that Coseco’s agent lacked the authority to arrange for the assessment. Coseco was successful in bringing a preliminary motion to bar Tipping from proceeding with his LAT application for his failure to attend the neuropsychological IE.
Rather than appeal the LAT’s decision, Tipping’s lawyer sent a unilateral letter to the LAT Adjudicator asking that he declare [his] decision invalid on the basis of a reasonable apprehension of bias. Justice Favreau noted that it would be “an understatement to say that letter was “disrespectful and inappropriate”. The letter was treated by the Adjudicator as a reconsideration request which was ultimately denied.
Tipping then brought an application for judicial review of the LAT’s decisions on the basis that the Adjudicator made an error of mixed fact and law by precluding the application to go forward. The primary issue before the Divisional Court was whether the application for judicial review should be barred given that Tipping had a statutory right of appeal from the LAT’s decisions.
Governing Principles of an Insurer’s Right to Request a Medical Examination
Justice Favreau first outlined the statutory scheme that governs an insurer’s right to request a medical examination in relation to an accident benefits claim. Section 44(1) of the Statutory Accident Benefits Schedule (the “Schedule”) permits an insurer to require an insured to attend an in-person IE to determine whether the person is entitled to or continues to be entitled to benefits. For in-person IEs, section 44(9) of the Schedule imposes documentary disclosure and notice requirements on the insured and insurer, respectively. If the insured is in non-compliance with section 44(9), section 37(7) of the Schedule provides that the insurer may make a determination on the insured’s entitlement to benefits or to stop paying such benefits.
The Availability of Judicial Review Where an Applicant Has Not Exhausted All Existing Remedies
Justice Favreau then addressed the law on judicial review where the applicant had yet to exercise a statutory right of appeal. Citing Yatar v. TD. Insurance Meloche Monnex, 2021 ONSC 2507, Justice Favreau noted that only in “exceptional circumstances” will the court consider an application for judicial review of a LAT decision dealing with accident benefits where the applicant has not exercised their right of appeal.
Justice Favreau agreed with the LAT Adjudicator that Coseco had met all the requirements for a valid section 44 Schedule notice. Tipping was held to be in non-compliance with his obligations to attend the neuropsychological IE and to provide relevant documents. Further, Tipping’s accusations of bias were found to have no merit. Rather, Justice Favreau characterized these accusations as part of a “convoluted path” taken by Tipping’s counsel in pursuing what may have been a bona fide claim for accident benefits. Given Tipping’s failure to meet the “exceptional circumstances” threshold, his application for judicial review was thereby denied.
The lessons from the Divisional Court’s decision in Tipping are three-fold. Firstly, insured parties wishing to challenge a denial of accident benefits claim ought to take seriously their statutory obligations to attend in-person IEs and to provide the relevant documents. Secondly, Tipping is a lesson to counsel representing insured parties about attempting to establish the merits of an accident benefits claim by litigating peripheral issues. Not only did the approach taken by Tipping’s lawyer result in a $10,000 adverse cost award, but it also led to a more expensive and complex process for what should have been a routine accident benefits claim. In the interest of saving time and money, accident benefit litigants should focus on the merits of their claim and act in good faith by fulfilling their statutory obligations. Finally, this decision establishes that the “exceptional circumstances” justifying judicial review are not met in circumstances where there is a procedural dispute of this nature. In order to meet the “exceptional circumstances” threshold, the insured must establish that the statutory appeal of LAT decisions on accident benefits is not an adequate alternative remedy to judicial review. This will be a difficult burden to discharge given Justice Kristjanson’s comments in Yatar that the courts must allow the LAT to “function with a minimum of judicial interference on questions of fact and mixed fact and law”. Absent a matter concerning a pure question of law, the best course of action for insured parties to challenge a LAT decision is through the statutory appeal route before resorting to judicial review.