Not Barred: S.44 and The Importance of Compliant Notice

A recent decision from the Licence Appeal Tribunal (LAT) outlines the importance of scrutinizing notice letters from insurers and the implications of deficient notice in a LAT proceeding.

In Milanovic v. Intact 2023 CanLII 67906 (ON LAT), the preliminary issue to be decided by the Tribunal was whether the applicant was barred from proceeding with a claim for catastrophic impairment since the applicant did not attend various insurer examinations (IEs).

The requirements for a notice of examination is set out in section 44(5) of the Statutory Accident Benefits Schedule (SABS), which includes the need for the insurer to provide “medical and any other reasons” for the examination. The rules for an in-person examination are outlined in s.44(9)2 of the SABS.

Section 55(1)2 of the SABS bars an insured person from applying to the Tribunal for a disputed benefit if the insurer has provided the insured person with notice that they require an examination under section 44 and the insured person is non-compliant with the request. The insurer is required to first prove that the notice given complies with the SABS before an applicant will be barred from proceeding under s.55.

In Milanovic v. Intact, the Tribunal noted that the insurer’s “medical and any other reasons should include specific details about the insured’s condition forming the basis for the insurer’s decision or, alternatively, identify information about the insured’s condition that the insurer does not have but requires,” (at para 11). Furthermore, the “medical and any other reasons” should be sufficiently clear enough to “allow an unsophisticated person to make an informed decision on whether to attend the IE,” (at para 11).

In this case, the insurer advised the insured person that assessments were required as the insurer was unable to determine if the injuries the applicant had sustained were catastrophic. The insurer then sent nine notices of examination for various insurer examinations. Each notice listed the following as reasons for the insurer examination requirements: “To determine if the injuries you sustained in the accident have resulted in impairments that would meet the catastrophic impairment definition,” (at para 16). There was subsequent correspondence and a further IE request, which provided the same exact wording as the prior letter’s reasoning. The applicant ultimately attended three of the nine insurer examinations.

The Tribunal found that the initial notices were deficient, as they did not comply with s.44(5) of the SABS. In this regard, the Tribunal noted that the notice of examinations failed to refer to the applicant’s medical conditions such that it remained unclear what the applicant’s medical conditions/impairments were. The Tribunal noted that the insurer should have provided some context as to what these conditions/impairments were so that the applicant would be in a position to make an informed decision as to whether or not to attend the IEs. The deficient notice was not rectified in the subsequent letter.

The insurer argued that the prevailing case law on the issue did not require specific reference to a medical condition for an insurer’s reasons to be considered adequate pursuant to s.44(5) of the SABS. The Tribunal noted that, while this may be true, the notices in this case failed to even identify information about the applicant’s condition that the insurer did not have but required. In this regard, the Tribunal noted that the “medical and any other reasons” should, at a minimum, “include specific details about the insured’s condition forming the basis for the insurer’s decision or, alternatively, identify information about the insured’s condition that the insurer does not have but requires,” (at para 20).

The Takeaway

Having worked on behalf of insurance companies for many years, I have seen blanket requests for numerous insurance examinations that are not required.

An insured should not simply attend examinations requested by the insurer. It is important to always scrutinize the letters requesting insurer examinations to ensure that there is a proper basis for the requested insurer examination.

If the insurer does not provide details about the insured’s condition that forms the basis for the insurer’s IE request and/or is not providing information that the insurer perhaps does not have but requires, then chances are the examination is not appropriate and should not be attended.

This article was written by Alon Barda.