Applicant v. Intact Insurance Company, 2018 CanLII 130843 (ON LAT), <http://canlii.ca/t/hxfbv
Has the Tribunal violated the rules of natural justice by imposing the terms on the IE?
11. Intact raises several concerns with the order. Intact argues that the Tribunal’s terms allow [the applicant] “to control the process”, in that [the applicant] can refuse any compromise, thus forcing the IE to proceed by writing without [the applicant]’s attendance, which is unfair and places it at a serious disadvantage.[2] The 2nd Term – an IE by paper review – also undermines the Tribunal’s own finding at para 24, that “it would be unfair to [Intact] if it is not given the opportunity to assess whether the applicant has sustained a catastrophic impairment under Criteria 8, the central issue of the hearing”.
12. In sum, it argues, “To force the respondent to proceed with IEs only by way of paper review would put the respondent at a significant disadvantage…”, and that disadvantage is a denial of natural justice.
13. [The applicant] submits that the Tribunal’s terms are proper – the Tribunal properly balanced the parties’ rights and considerations and the remedies available under the Schedule. [The applicant] notes that other decisions have also called for a key IE to be conducted by paper review. [The applicant] notes that Intact has failed to produce a “scintilla of evidence” that an in person assessment is necessary and lists several practical options available for Intact to conduct a meaningful IE without an in person assessment. Finally, [the applicant] provided a “post-decision update” which was that he offered a reasonable compromise to attend a neuropsychological assessment with an attendant and other conditions.
14. I agree with [the applicant]. Boiled down, Intact’s argument is that Intact’s failure to receive the IE in the manner it prefers is grounds for reversing or amending the Tribunal’s decision. Assuming for the moment that in some cases an Insurer’s failure to conduct an IE in the manner it prefers is grounds to amend a Tribunal decision, in this case, as [the applicant] submitted, the Tribunal was required to and properly preformed a “balancing act” and so the results of the balancing mean that Intact may not receive the IE that it prefers. In that light, Intact is essentially asking that I substitute my opinion for that of the Tribunal’s member that heard the parties’ written submissions, the testimony of [the applicant]’s treating psychologist about potential harm, and the parties arguments. I find that the Tribunal did not make an error and I decline to substitute my own ‘balancing’ determination for the Tribunal member that heard the evidence.
15. As [the applicant] argues, the Tribunal faced a situation of diametrically opposed interests, and needed to balance those interests with a practical result. The Tribunal did so, appropriately considering the options contemplated under the Schedule with the possibility of an IE proceeding under s. 44(4). This is not a novel approach. Specifically, s. 44 of the Schedule allows for “paper reviews” as a means of conducting an IE. Similar results were reached in 16-003144 v. Cumis General Ins. Co. and 17-005291 v. Travelers Canada. To be clear, the result in this case is very fact specific to the evidence the Tribunal heard in this case. The Tribunal obviously considered the evidence of risk of harm in this case to be very significant, and accordingly imposed the terms that it did. Without a meaningful risk of harm, the appropriate range of terms, if any, would be different.
16. There is also no evidence before me that a paper review in this matter is impossible or essentially meaningless. In fact, the opposite appears true, as Intact has conducted 13 IEs to date including several neuropsychological assessments. For that matter, Intact has minimally explained the disadvantage, particularly as one of its assessors concluded that [the applicant] provided invalid testing results. As noted above, [the applicant] offers several reasons why the disadvantage is illusory. Thus, Intact is not really presenting a breach of natural justice, as much as simply asking me to hear the same evidence and come to a different result.