Volume. 3 Issue. 12 – April 24, 2019

Securing S.44 Attendance a Most Elusive Goal – Reasonable Explanations Required, Not Excuses

Wilful Refusal to Cooperate – In 17-002582 v The Personal, with the Applicant having failed to attend nine scheduled IEs, the Tribunal confirmed sufficiency of notice, and that “[the Applicant]’s objections to the [Respondent]’s notices are unpersuasive because his submissions indicate that, with advice from legal counsel, he acknowledged the [Respondent]’s IE notices and had his legal representatives respond to them with rescheduling requests and conditions.” The Tribunal held, “the evidence that [the Applicant] simply failed to attend IEs without reasonable explanation is too strong to make a case that barring his appeal would be a disproportionate response to his conduct.” Further, “while I don’t purport to establish a suggested ‘time limit’ or number of missed IEs against which to weigh the merits of allowing appeals to proceed, I find in this case that nine missed IEs over five months of scheduling and rescheduling by the [the Respondent], without credible explanations and while retaining legal counsel suggests a wilful refusal to cooperate with the IE process established by s.44.”

Return to Sender, Address Unknown – In 18-001429 v Security, submitted to inHEALTH by Ilya Kirtsman from TD Insurance (Staff Legal), it was agreed that the Applicant failed to attend five IEs that were scheduled to address entitlement to IRB. “The sole reason given by [the Applicant] for failing to attend the missed IEs is that the driver sent to transport him to two IE appointments went to the wrong address.” The Tribunal found the “wrong address” excuse “weak” and that the Applicant’s credibility was undermined by the fact that he cites it for only two of five missed IEs and offers no explanation for his apparent failure to mention these missed pick-ups to the Respondent. Further, the Applicant had been successfully picked up at the “wrong address” as noted on the invoices from the transport provider.

The Tribunal did “not agree with [the Applicant]’s implicit argument that he is absolved of any and all obligation to meet [the Respondent]’s requests for an IE, because of alleged transport arrangement errors. I find that a reasonable person would respond to missed pick-ups by demanding that the problem be fixed. I find that by simply ignoring – for a year – [the Respondent]’s October 25, 2017 notice of discontinuing IRBs, [the Applicant] himself failed to comply with the Schedule.”

While the Applicant argued that he had in fact attended two other IEs, the Tribunal did “not agree with [the Applicant]’s argument that his attendance at two IE’s somehow overcomes his failure to attend five other IE’s simply by demonstrating some level of bona fides”. Additionally, it was found that the Applicant’s current willingness to attend does not effectively bring him into compliance, as he pointed to “no broad principle that a claimant’s late offer of availability effectively ‘cures’ non-compliance and lifts the statute bar”.

After Seven – In 18-000725 v Aviva, the Applicant’s family physician indicated in a medical letter that it would be detrimental to the Applicant’s mental and physical well-being to attend non-therapeutic examinations. However, there was no detailed explanation provided as to the mental and physical disabilities of the Applicant. The Tribunal found, “There is not enough medical evidence before me to assist me with understanding why the applicant cannot attend further IEs. The applicant attended seven previous examinations with his own medical doctors. There is also no evidence before me, setting out proposed options to accommodate the applicant and enable him to attend IEs.”

Take ‘Sufficient’ Notice – Addendum Reports are IEs

Notice Not Required? – In 17-005722 v Gore Mutual, one argument brought forward by the Respondent in seeking a s.44 addendum report suggested that “where the respondent’s assessors are not conducting new physical examinations but are simply reviewing the file to respond to new opinions and comments, it does not need to issue new notices of examination. On this interpretation, the new reports represent a continuation of the earlier examinations.”

This was found to be “problematical on two grounds. The first ground is that it would eliminate the frequency provision for examinations. If each review is simply an update of an earlier review, the restrictions incorporated in s. 44 become meaningless. It would also render the requirement to give medical and other reasons ineffective. The respondent could take the position that it is simply updating the file. In my view, the type of review the respondent seeks to do in this case is subject to the provisions of s. 44.”

But You Were Aware – In 16-003309 v TD, a somewhat similar fact situation from July 2017 submitted by Ilya Kirtsman from TD Insurance (Staff Legal), one argument raised by the Applicant in a Motion was that the reports the Respondent was seeking to introduce into evidence “were conducted by the respondent via paper review but without the required section 44 notice to the applicant”. The Applicant further asserted that “these reports contravene the SABS as she had no knowledge of these assessments and did not consent to them being done”. The Respondent countered this by indicating that the Applicant was aware that these reports would be produced, as the case conference summary stated they were. The Tribunal determined that “the parties at the hearing may make submissions on whether the reports were in contravention of the SABS and the weight the hearing adjudicator should give the evidence”. This matter was settled prior to the resolution of this dispute.

No Unfair Surprises – This issue was also considered in 17-006369 v RBC. In this matter, the Applicant challenged the admissibility of the IE’s Addendum report alleging that she did not receive a notice of examination as required by s.44(5) of the Schedule. The addendum, considering the potential prejudice to the parties, was not admitted into evidence as the Respondent’s “right to an examination…must be balanced with the right to notice of section 44 examinations to address concerns of unfair surprise and prejudice that can result at the hearing”. Despite the Applicant having had an opportunity to respond in its reply, it was determined that the potential prejudice to the Applicant of not having the notice outweighs that of any prejudice to the Respondent in excluding the Addendum report.


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