Volume. 6 Issue. 29 – July 27, 2022

We previously highlighted 21-000665 v Wawanesa, wherein the Tribunal opted to remove IE evidence from the record. The Tribunal once again contends with evidence from an IE that was not sought in accordance with the Schedule, and the need to determine an appropriate remedy, given that same is not found within the Schedule.

The second case this week involves a finding of res judicata in an application for a CAT determination, with the Tribunal finding the application to represent an abuse of process.

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Improperly Scheduled IE Struck From Record

IE Evidence Struck From the Record – The Applicant Waring, in 21-012529 v Aviva, brought a Motion to exclude evidence related to an IE she had voluntarily attended. At issue was the fact that the Notice of Examination (NOE) listed only catastrophic impairment as an issue under review, whereas the IE ultimately addressed both CAT as well as Attendant Care Benefits (ACB). While not specifically contesting this fact, Aviva relied upon a number of arguments in support that the IE being directed at both CAT as well as ACB was appropriate. Amongst them being a comment in the IE in which Waring was said to have accepted the revised scope of the IE. While Waring contested this suggestion, the Tribunal nonetheless noted that the “agreement” would not suffice to waive the notice requirement, as s.44(6) of the Schedule confirms any such waiver must be between “the insured person and the insured”, not the IE assessor.

Further, even were there to have been a waiver, Aviva failed to comply with s.44(8), wherein the Schedule obliges an insurer to deliver written confirmation of oral notice “as soon as practicable afterwards”. Having waited three weeks after the assessment to reference the inclusion of ACB, this was found not to have been “as soon as practicable afterwards” as required. Ultimately, the Tribunal was convinced “that there was no prior notice that the ACB would form part of the respondent’s occupational therapy IE, so there was, in effect, no opportunity for the applicant to determine what records should be provided to the assessor for this assessment.”

The breach was noted to be a “serious impediment to the consumer protection mandate, because it deprived the applicant of the chance to be an active participant in this important stage of the adjusting process.”

Aviva had also submitted that they “alerted the applicant of this expanded scope prior to the release of the IE report. According to the respondent, the applicant had a chance to contest the lack of notice after the IE was completed, yet no action was taken prior to this motion.” In response, the Tribunal confirmed that there was “no requirement for insured persons to guarantee an insurer’s compliance with the Schedule”, and notwithstanding, there remained no opportunity having been afforded Waring to submit documents and information for use during the assessment itself.

The Tribunal found that the appropriate remedy for the breach was disallowing Aviva from relying on the occupational therapy report for the purpose of arguing its position on the ACB, as well as striking its Form 1 from the hearing record. This remedy was determined not to have prejudiced Aviva to the extent that they would be unable to present a cogent case regarding Waring’s claim for pre 104 week ACB.

Noting that the pre-104 ACB IE occurred after 104 weeks had passed, accordingly it was open to Aviva to once again secure an ACB assessment to address pre 104 ACB, despite the obvious passage of time. Therefore “a merits-based and procedurally fair adjudication of the ACB claim is still possible”.

ACB Claim Barred as Abuse of Process

Abuse of Process Derails ACB Claim – In 21-000502 v Economical, the Tribunal found that the Applicant Yevdokymova was “barred from proceeding with her claim for a catastrophic impairment determination on the basis of the findings of fact in an earlier Tribunal proceeding.”

In the earlier November 2020 decision, the Tribunal held that the applicant did not suffer a complete inability to live a normal life. Yevdokymova had been found to be an “unreliable witness”, and that as a result “regardless of the respondent’s reports, it could not accept the applicant’s evidence as reliable.”

For the within matter, the Tribunal agreed with Yevdokymova that the test for CAT differs from the test for NEB. However, “there is significant overlap. This overlap is even more pronounced in this case where the applicant intends to rely on the same evidence that was rejected by the Tribunal in the earlier hearing.” Economical further “submitted that to permit the applicant to relitigate findings of fact that have been previously determined against her is an abuse of process, a wider concept than res judicata.” Ultimately, the Tribunal found that “the integrity of the Tribunal’s adjudicative process would be significantly undermined if I were to arrive at different findings of fact on largely identical evidence.”

In the prior hearing on NEB, Yevdokymova sought to rely upon her CAT assessments, and the Tribunal had agreed that the “report is relevant with respect to the facts of the observations and diagnosis that were made by the Omega assessors.” In the NEB hearing, “the Tribunal rejected almost all of the applicant’s evidence of the degree to which she was impaired by the accident. It is this rejected evidence that is at the heart of Dr. Braganza’s conclusions about the degree of the applicant’s psychological impairments before me now. It also is extensively covered by Ms. Crystal in her OT assessment.”

Accordingly, “in this matter, the applicant cannot be successful unless I make factual findings that are contrary to the previous findings of the Tribunal.” Therefore, Yevdokymova “is prohibited from proceeding with her claim for a catastrophic impairment designation on the basis that it would be an abuse of process because of the factual findings made in Tribunal file.”

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