Section 44 of the Statutory Accident Benefits Schedule (“SABS”) outlines the requirements of an insurer when scheduling an insurer examination (“IE”). The Licence Appeal Tribunal (“Tribunal”) can, on a motion, create remedies for any breaches of s.44. This was the situation in Waring v. Aviva General Insurance Company, 2022 CanLII 59513.
The applicant sought to have a s.44 IE occupational therapy report and related assessment of attendant care needs (“Form 1”) excluded from a hearing as the IE was not obtained in accordance with the procedures outlined in s.44 of the SABS.
The notice of examination for the s.44 occupational therapy IE only listed catastrophic impairment as an issue under review. The applicant was later advised, at the examination, that attendant care needs was also going to be assessed in the IE. The respondent insurer did not advise the applicant, in writing, until 3 weeks after the IE that they were also assessing attendant care eligibility as part of the IE.
The applicant sought to have them both the IE report and the Form 1 struck from the hearing, since they arose from the deficient notice. The applicant cited N.M. v Aviva Insurance Canada, as precedent for this relief.
The respondent insurer argued that there was no provision in the SABS that allows this remedy. The insurer also argued that either s.44(8) of the SABS (which allows insurers to provide oral notice) or s.44(6) (which provides that parties can agree to waive the five-day notice normally required for in-person IEs) should be applied.
None of the respondent insurer’s arguments were successful. The Tribunal ordered that the respondent cannot rely on its occupational therapy IE report and Form 1 for the purpose of arguing its position on attendant care entitlement at the hearing.
The Tribunal found that the respondent did not comply with its obligations under s.44 because the first time the applicant was advised that the occupational therapy IE would also be assessing attendant care was while at the assessment. Notably, the applicant was advised of this by the assessor, not by the respondent.
One of the main purposes of the notice provisions in the SABS is to allow an insured person the chance to determine whether there is information and documents that they may want to provide their insurer to assist in the adjusting process. This information and documentation should be provided to the IE assessors to assist with the assessments. Faulty notices can have a serious effect on procedural fairness at hearings.
Section 44(6) of the SABS requires an insurer to specify what benefit entitlements are being assessed at least 5 business days before the IE assessment takes place. In this case, the notice of examination for the occupational therapy assessment only made mention of the claim for catastrophic impairment yet made no reference to attendant care. It was not until 3 weeks later that the applicant received correspondence from the respondent advising that the IE also assessed attendant care benefits.
As such, the insurer failed to satisfy its obligations under s.44(6). This, in effect, meant that the applicant could not provide the insurer with additional records to be used at the assessment. The breach of s.44(6) is considered a serious impediment to the consumer protection mandate of the SABS.
The Tribunal did not accept the arguments made by the respondent that the parties waived the 5 day notice requirement based on the occupational therapist’s advice to the applicant that the IE would include an assessment of attendant care needs. The Tribunal confirmed that, to satisfy s.44(6), a waiver needs to be between “the insured person and the insurer” not the IE assessor. Further, even if the waiver based on the occupational therapist’s advice to the applicant was accepted, s.44(8) requires delivery of written confirmation of oral notices “as soon as practicable afterwards”. The Tribunal found that the respondent’s written confirmation to the applicant did not occur until 3 weeks after the IE, which was not “as soon as practicable afterwards”.
The Tribunal confirmed its power to exclude IE reports due to breaches of s.44, if it is appropriate in the circumstances. Given the clear breach of s.44 in this case, the Tribunal ordered that the insurer “is unable to rely on its occupational therapy report … for the purpose of arguing its position on the ACB at the hearing” and “the respondent’s Form 1 … is struck from the hearing record.”
The Tribunal explained that, since the insurer has an opportunity to arrange a further attendant care IE assessment, there would be no undue prejudice suffered by limiting the use of the IE report at the hearing and striking the Form 1 from the record.
Technicalities matter and compliance protects against unfairness. If insurers are not vigilant in complying with the SABS’ procedural requirements, including providing proper notices for scheduled insurer examinations, it may create unfairness for the insured and there is a risk that the Tribunal will exercise its discretionary powers to exclude evidence at a hearing.