By: Ninette Ibanez Silverio Pereira March 2023
In Ontario, auto insurers use s. 44 of the Statutory Accident Benefits Schedule (SABS) as the legal basis for requiring the insured to attend an Insurer’s Examination(IE). It plays an integral part in handling insurance claims that make it difficult for injured victims to receive the benefits of their insurance policies.
Insurer’s Examination (IE) is a process during the claim handling where the insured is examined by another health practitioner who has no duty of care to the insured and is hired by the insurer.
Before I proceed, please know that I am not a lawyer. I cannot provide legal advice. And any of my words should not be taken as legal advice.
However, if you are paying for auto insurance like me, whether or not you have been entangled in legal proceedings, s. 44 seems a mystery — and I have questions I will be sharing.
Please read along, pause, then consider whether you should have questions too.
One-Two Punch Claim Handling Technique
It is carried out by denying the insured payment or benefit (first punch), immediately followed by requiring the insured to attend an IE (second punch).
But wait, SABS stipulates strict requirements. SABS is the regulation under the Insurance Act about our entitlements to the auto insurance policies we are mandated by the government to pay.
What Does SABS Say When an Insurer Denies or Refuses Payments or Benefits?
When giving notices of denials of benefits, depending on the type of benefit, there is a timeline restriction, typically within ten business days after the insurer receives the claim. And the medical and any other reasons for its denial, among other things, should be given. See subsections 36(4)(7), 37(4)(6), 38(8)(14), 42(3)(13), 43(2) and 45(3)(5) of the SABS.
The timeline requirement — sounds like it is straightforward. But sometimes it is not. If the insurer sent it by regular mail, how do you calculate the ten business days? Subsection 64(2) will help you. And, if for an unusual reason, you did not receive the letter, ask or find out whether your insurer informed you beforehand that you should expect to receive a response to your claim within ten business days — it is the regulation.
The medical and any other reasons — what does it mean? With this, the Licence Appeal Tribunal (LAT) provides some assistance. At the very least, it should include specific details about the insured’s medical condition. It should be clear and sufficient enough to allow an unsophisticated person to make an informed decision to either accept or dispute the insurer’s decision — requiring the insured to attend an IE (M.B. v. Aviva Insurance Canada, 2017 CanLII 87160 (ON LAT)). It is contextual and turns on the unique facts in each case.
What Does SABS Say When an Insurer Requires IE Attendance?
Subsection 44(1) dictates that an Insurer’s Examination (IE) should not be required more often than is reasonable and necessary. Subsection 44(5)(a) stipulates that if the insurer requires IE attendance, it should give the insured person (claimant) notice about the medical and any other reasons for the examination, among other things. The regulation strictly requires that the insurer give its medical and any other reasons. Otherwise, the insurer is not performing its obligation according to the law.
The highest court in Canada, the SCC, should acknowledge and recognize the public importance of the following two main issues raised in Silverio Pereira v Aviva:
[i] the insurers’ notice obligations in the SABS (question of law) and
[ii] the Tribunal’s inconsistent or lack of correct examinations of insurers’ duty of notice and its process breaching the rules of procedural fairness.