Volume. 8 Issue. 9 – March 6, 2024

The Tribunal rules on a request for reconsideration on the part of the Respondent in Taksali, wherein four IEs were excluded from the evidence as they were secured by way of deficient IE notices. The Respondent relied upon what they believed to be five distinct errors of law or fact.

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Tribunal Upholds Decision Excluding Improperly Secured IEs From the Evidence

Deficient Notice Not Cured – The Tribunal, earlier in Taksali, had found that Aviva had secured four IEs based upon defective notices. The Tribunal ruled that “an insufficient s. 44 NOE cannot be cured by an IE resulting from that defective notice. To accept that it can remedy improper correspondence is to discount any value of the notices and place all of the value on the IE, whether it was legitimately scheduled or not…the notice letter of September 20, 2019 was insufficient and the right to challenge that insufficiency was not waived by the applicant’s attendance at the IEs, nor was it cured by the inclusion of the results of those IEs in the letter of November 13, 2019. I therefore find that, as the IEs themselves were improperly required, their results will not be considered in this matter”.

As a result, the Tribunal found that IRB and medical benefits were payable. In 21-004696 v Aviva Aviva sought reconsideration of the Tribunal’s decision, suggesting that there had been numerous errors of law, and the rules of procedural fairness had been breached. Taksali however submitted that the introduction of new Tribunal decisions and Court decisions amounts to an attempt to reargue the case made before the Tribunal in a new way. The Tribunal ultimately found there to have been no errors of law or fact, thereby dismissing in its entirety the request for reconsideration.

Errors of Law or Fact

#1 The first error of law that Aviva alleges is that the Tribunal required an enhanced level of specificity and medical knowledge on them. The Tribunal however found that Aviva was essentially “Putting forth new arguments or buttressing the arguments made in the hearing of the matter.” Of the cases now cited by Aviva, aside from M.B v Aviva, constituted new case law and would accordingly be disregarded. The exception being Varriano, that was released following the original submissions. Varriano however was easily differentiated, as the sole issue therein was whether an insurer was required to fashion a medical reason where none existed. The Court in Varriano was “not required, however, to determine what constitutes sufficient medical reasons, as was the issue in the case at hand.

Further, the Tribunal confirmed that the issue raised on reconsideration was fully considered at first instance. The decision specifically confirmed that “the level of specificity of the reasons in an NOE does not necessitate in-depth medical knowledge on the part of the respondent but should include specific references to the applicant’s medical situation, such as the applicant’s diagnosis and/or medical condition.”

#2 The second alleged error was said to be in the finding “that the applicant was entitled to the substantive benefits on the sole basis of the insufficient notice.” Aviva referenced the Court of Appeal in Stranges, that stands for the proposition that “insufficient notice does not entitle an applicant to benefits. The applicant must also put forward proof of their entitlement to those benefits.” Firstly, the Tribunal noted that the reference to Stranges “could have been advanced at the hearing and, as noted above, is not to be considered in this reconsideration. The parties are expected to put their best foot forward in their initial submissions.”

In addition, were Stranges to be considered, “it dealt with a previous version of the Schedule, before the Schedule was amended to include increased explicitness with respect to notice requirements. Further, the Schedule provides that “until proper notice is provided, the respondent shall pay the benefit to which it applies (s.36(6) with respect to income replacement benefits; s. 38(11)2 with respect to medical and rehabilitation benefits). There is no requirement in the Schedule for the applicant to otherwise establish their entitlement to these benefits until a proper notice is subsequently given.”

#3 The third alleged error was suggested as the Tribunal having “erred by concluding that the applicant may challenge the sufficiency of the reasons provided in the NOE regardless of attending the IEs.” Aviva suggested that “if the applicant did not believe that the notices were sufficient, the Schedule has a mechanism in place for the applicant to challenge that insufficiency by his non-attendance at the IE and thereafter appeal to the Tribunal upon a denial of the benefit that was the subject of the notice.” The Tribunal however disagreed that “the application of that mechanism ensures that an applicant has no provision to challenge the notice of an examination if he or she subsequently attends that subsequent examination.”

The Tribunal noted that Aviva “Did not submit any precedent, nor a provision of the Schedule, that prohibits an insured from challenging the sufficiency of a notice of examination even if she or he attends that said examination. Indeed, s. 55(1) of the Schedule includes a prohibition of applying to the Tribunal if the insured does not attend an examination scheduled under s. 44 but is noticeably silent with respect to an applicant who does.” Accordingly, the Tribunal did not “err by concluding that the applicant may challenge the sufficiency of the reasons provided in the NOE regardless of attending the IEs.”

#4 The fourth error alleged by Aviva was the finding that the inadequacy of the original notice was not cured by the subsequent medical reasons provided in the insurer examinations that were the subject of the notices. However, the Tribunal noted that “(t)he question of whether the respondent acted in accordance with the Schedule was a central issue in the appeal of this matter, and was argued accordingly by both parties. The respondent is now merely re-stating their original position. Therefore, I see no error of law”.

#5 Finally, Aviva submitted that the Tribunal erred by failing to consider the matter of Afriat v. Aviva, regarding deficient notices being cured by subsequent medical reasons as found in IEs. To this, the Tribunal simply indicated that the submissions of both parties were considered, and “the Tribunal is not required to refer to every argument or authority cited by the parties in their submissions. I therefore find no error in law in not referring to Afriat.”

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