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s. 44 of the SABS in the One-Two Punch Claim Handling Technique — Why I Believe Insurance Companies Do Not Pay

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.

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Have you followed every opportunity when a claim goes wrong?

In a LAT decision released in January of 2022 ( Jarrett v Aviva https://canlii.ca/t/jlw35) the courts started the year off by reminding Ontario’s injured car crash survivors they shouldn’t look to the justice system to hold insurers accountable for their poor claims handling practices.

This isn’t new but it was a little bit like saying the quiet part out loud with “The legislature made a choice as to what disputes would be within the exclusive jurisdiction of the LAT, and what remedial powers the LAT would have. That was a policy choice it was entitled to make.” Arbitrator Craig Mazerolle went on to say, “Without a regulation allowing for damages, I am satisfied that the Legislature understood the consequences of its actions during the transfer of accident benefit disputes to the Tribunal, and it—in turn—decided not to provide the Tribunal with the power to grant damages (as used to be ordered by the courts).”

Suffice to say that most consumers wouldn’t know that Ontario legislators decide what coverage will or won’t be available to them, nor would they know that there are no safeguards in place to ensure that Ontario’s insurance companies actually stand behind the contracts they have with Ontario drivers. As Arbitrator Mazerolle explains it in Jarrett v Aviva, “despite the applicant’s arguments about the lack of remedies available to those who claim bad faith adjusting of designations, as well as the special role of punitive damages noted in Whiten—it was within the Legislature’s purview to remove this remedial power from the Tribunal.”

Any hope of accountability is explained away with a quote from a 2021 LAT AABS decision “an insured person’s right to file bad faith claims for punitive damages is no longer available. Further, that this was a policy choice made by the legislature. In coming to that conclusion, the Court states that the purpose of the legislature’s policy decision was to reduce insurance rates and provide for the fast and efficient resolution of disputes and avoid a duplication of processes. Of significance, the Court states that the legislature must have considered “the importance of its objectives of efficiency and cost reduction to outweigh the loss of insured individuals’ access to the courts and to the full range of remedies available there.”

In the Jarrett v Aviva decision it is clear the courts follow the legislation to the letter and squarely lay the responsibility for failing consumers at the legislators’ feet with, “the Tribunal must respect the Legislature’s role in crafting social policy, and, in turn, it must respect the choice to not include punitive damages in its remedial toolbox”. This profound failure to protect consumers from ultra-rich and unaccountable insurance companies has left Ontario’s injured patients with no tools in their toolbox and with little hope of recovering the costs of their recovery journey. Of great concern to all of us should be the fact that taxpayers pay when insurers don’t by way of social support like OW and ODSP along with increased OHIP costs as consumers frantically search for ways to recover from their injuries.

The previous Liberal government is responsible for the mess we find ourselves in today with some 16,000 injured car crash survivors applying for hearings at the LAT in just the last year alone in order to get the benefits they paid for. The Liberals made promises of ‘more choices’ but ended up making bad deals with insurers and leaving patients in the lurch. It’s created a huge backlog of cases because the current Conservative government has done nothing to course correct the downward spiral of insurance quality that was kick-started by the Liberals removing disincentives for insurers who behave badly. Quietly the significant interest insurers had to pay claimants for overdue benefits disappeared from legislation along with the ‘special award’ payable for bad behavior. The reality is the insurers are in the game to make profit, not friends. And screwing Ontario patients out of the resources they need is a profitable endeavor that has no downside because there’s no accountability and there is no price to be paid for manhandling their own customers.

So what is a car crash survivor supposed to do? How can we change insurers’ claims handling practices? If the last stop on the road to recovery is a court that won’t or can’t help us, what steps should we take? I put the question to some of our supporters and was surprised to hear of some good outcomes coming from unexpected places and some suggestions.

If the Brokers are the individuals who sell us the product and tell us it’s good coverage, why are we not looping them into the catastrophe that blows up our lives when the product they sold us turns out to be useless? Apparently some are willing to step up and reach out on their customer’s behalf to the insurer that THEY recommended. It’s true that many Brokers are now owned and operated by insurance companies but not all are, and every one of them ought to know which companies behave badly. One Broker we know of did reach out to their customer’s insurance adjuster and somehow effected a change that helped get their customer the help they needed.

And what about your insurance company’s Ombudsman? They all have one dedicated to their company and as one lawyer recently reminded FAIR, sometimes it only takes fresh eyes or a new perspective to change the course of adjusting a claim. It may be more likely a lawyer who would be more successful at effecting change at this level but for those self representing it is worth a try. And if not successful with your insurance company Ombudsman, there is always the General Insurance Ombudsman to follow up with (although the GIO website indicates they will only get involved if there is not a legal case ongoing) and it is another step to put pressure on an insurer to do the right thing.

There is also the FSRA complaints system that considers whether your auto insurance company has violated Ontario’s Insurance Act and/or regulations or has been subjecting you to Unfair or Deceptive Acts or Practices (UDAP). You do not have to access any of the above suggestions before making a FSRA complaint and there is a lot of information on their website that will help you articulate how your insurance company may have broken the rules.

Last, but not least, what about your local MPP? The legislators who enacted the current legislation are mostly out of the picture now but those who currently represent you are the representatives who can and should make legislative changes to protect vulnerable car crash survivors. In addition they need to know how badly Ontario’s patients are being treated in what is a private medical system where profit is more important than recovery and how that affects us all. A phone call to an insurer from an MPP could make all the difference in how your claim is handled.

We aren’t convinced that our past legislators truly “understood the consequences of its actions during the transfer of accident benefit disputes to the Tribunal” or that they understood the outcomes, both physical and financial, for both injured car crash patients or for the taxpayers when changes to coverage to assist insurers were made. Ontario cannot afford to bargain away more coverage so informing government representatives is a significant action that might cause hesitation to undermine justice going forward.

By Rhona DesRoches Feb 2, 2022

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Effects of Insurer Examinations on Medical Assessments for Treatment

Guest Blog by Ruth Volpato   

Effects of Insurer Examinations on Medical Assessments for Treatment

In preface, I am a Registered Nurse (retired) having dedicated the last 20 years of my career in working with motor vehicle accident victims with the goal of reaching maximum recovery and rehabilitation.  My sole focus has been on the welfare of my clients.  Those of you in the rehabilitation industry are aware of the numerous insurer examinations our clients have been faced with over the years.  At this point in time, I am unaware if the insurance model has changed thus decreasing these examinations; however my article is to address the multitude of clients having gone before.  If this pertains to current situations, it is hopeful this article will be of value.

In 2011, while working up to 12 hours per day for the improvement of my clients, I was involved in a major motor vehicle accident.  My thoughts were, “I know how this works, I can handle this, I have been supporting my clients for almost 10 years … piece of cake”.

Wrong!  I experienced firsthand the abruptness, the denials, questioning of my integrity, humiliation, frustration, anger, confusion and failure.  The course of my involvement for my claim lasted almost 8 years.  In that time I underwent scrutiny from my own insurance carrier, the insurance carriers of the other victims (3 in total), and their lawyers.  Given the type of accident, I developed PTSD.  However, as time progressed, the behaviour of my own insurer increased my PTSD ten-fold.  To this day, I experience minimal effects of PTSD due to the accident.  I experience moderate to severe effects of PTSD relative to my insurer.

The term PTSD relates to recurring thoughts of the trauma which can be triggered by similar situations, sounds, smells, senses.  Over the years I have found these triggers occur when in any medical evaluation, assessment or consultation.  These episodes make it very difficult to obtain the help I need by treating medical professionals and their teams. I become defensive, reticent to answer questions for fear of being ridiculed, question the reasons for their questions and provide limited data.   All these reactions do not allow for a complete medical work up to enable helpful treatment. 

When describing symptoms and their manifestations I become defensive which puts up a barrier for open communication. Even though I had been delivering guidance for my patients to be open when in treatment sessions, I failed to be able to do this for myself.

Now, when I am being assessed for treatment I have learned to indicate at the beginning of the session my difficulties in responding.  I ask that they extend some latitude to allow me to become comfortable in their treating environment.  I also bring someone with me as an anchor and a focal point should “the walls” start to manifest themselves.

I have written this missive to encourage open dialogue with patients, family, colleagues, medical professionals and clinical teams.  As always, a return to maximum health and wellbeing is a priority involving everyone.

In health,

Ruth Volpato RN (Ret)

November, 2019  

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Our Not so Just Justice System

Guest Blog by Brenda Barringer

One of my favourite quotes, commonly attributed to Sir Edmund Burke says, “All that is necessary for the triumph of evil is that good men do nothing.”

This I believe and this is why I attempt to shed a bit of light on the justice system as regards personal injury lawsuits.

Having been through litigation twice now, I am convinced there is no justice in the justice system.

In some places in the world a life is taken and the perpetrator will die; a life for a life. In other places they are put in prison for a lifetime sentence, usually 25 years, so not really a lifetime. Sometimes they receive a lifetime sentence with no parole.

Whatever the sentence handed down, is justice really served?

Can a life be brought back from the dead?

Can catastrophic injuries be undone?

Can families of victims ever believe that justice will be served by the decision of a jury?

I believe not and this is backed up by lawyers, one of whom heard it from one of our own judges.

It seems I am in good company.

One definition of Compensation, which is what happens in litigation, is the act or state of compensating, by making up for someone’s loss, damage, or injury by giving the injured party an appropriate benefit. Some of those benefits are compensation for lost wages, money for ongoing therapies, for pain and suffering for injuries which may last the rest of your life.

However, I want to share one example of how our justice system fails us and is in fact an injustice.

Should your legal matter go the distance and you find yourself sitting in court in a trial, this one little detail could completely derail the process.

If anyone hints at or outright tells the jury that the person being sued is protected by insurance that the monies settled on does not come out of the defendants pocket, a mistrial can result. It is a cardinal sin to mention it’s their insurance that pays the settlement. more…

December 11 2018

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Why we shouldn’t welcome the government’s plan for a ‘Serious Fraud Office’ without questions

The Ontario government has no end to bad ideas to ‘tweak’ auto insurance and over the past 27 years there’s been no end to the hardship all of the these changes have caused for injured car accident victims.

That’s no reason not to consider the latest plan put forth on December 5th by Ontario’s Finance Minister. It’s all part of David Marshall’s Fair Benefits, Fairly Delivered report recommendations to root out the fraud that insurers say are driving up the cost of premiums for Ontario’s drivers.

And who wants fraud, right?

Not accident victims who are often the target of various fraudulent business practices by those who service accident victims. We don’t support fraud.

So when someone wrote in to FAIR to say I didn’t care about the proposed new fraud office I was surprised. In many senses there are just too many things happening all at once to Ontario’s car accident survivors and though FAIR often writes to MPPs and attends consultations, the concerns of MVA victims can get lost when there’s just so many things working against them.

Like most of Ontario’s denied claimants I too was called a fraudster and malingerer. Many times. It pays insurers to malign their customers when we make a claim because if they attack a victim’s credibility often enough it will create heightened scrutiny if we go to court to hold the insurer to account. Insurers can influence the way a trier-of-fact or a jury will see a victim – are they being honest or is the insurer’s denial position the right one.

So, I want to be clear. I care. I cared when I voiced my concerns about creating an unaccountable fraud office in 2012 for FAIR at the Anti-Fraud Task force consultations 5 years ago when the task force first proposed the fraud office that would have unlimited power to investigate and would not be answerable to any oversight.

Here’s what we said in 2012:The establishment of a dedicated fraud investigation unit has been attempted in the past with the IBC (Insurance Bureau of Canada) and the ICPB (Insurance Crime Prevention Bureau). Such a program led to widespread abuse and intimidation of legitimate claimants and was extensively covered by the media. FAIR believes that this is invasive and abusive and will create even greater discord between the policyholder and the insurer. The coupling of a greater ability to share claimant’s personal information with broader civil immunity in the realm of a revamped quasi-police investigatory body without oversight and beyond the reach of the law would create intolerable circumstances for claimants. Claimants who could be abused by their insurer with absolute impunity.” http://www.fairassociation.ca/wp-content/uploads/2013/02/FAIR-Submission-to-Anti-Fraud-Task-Force-Status-Update-August-27-2012.pdf  

I care because in the ’90s when I reported my insurer’s fraud to the ICPB fraud squad I was told they didn’t investigate insurers but my name was on their fraud list. And I was informed that I was also now on Interpol’s list should I consider travelling outside the country. I was floored. And very, very afraid.

A year or so later when the insurer’s medical doctor made use of my manipulated medical file I took the fraud to the OPP who confirmed that it appeared to be fraud when the med/rehab specialist who had defrauded my insurer by way of his fraudulent ‘medical’ reports written from Florida. Unfortunately the OPP could do nothing for me because it was my insurer who had paid for the errant and absent rehab specialist’s reports and so it was only the insurer who could take action. It wasn’t my money that had been spent, so I put it in front of the insurer, who was now the victim of fraud, and surely they’d care, right?

I was forwarded on to the insurer’s Ombudsman. All insurers in Ontario have a company ombudsman dedicated to the individual insurer. Surely they’d care about fraud, after all, it was their money that had been absconded with through the use of fraudulently written reports based on visits that simply did not take place. Not so, because the insurer then wrote an 11 page document that ended up with they intended to do nothing, they felt the rehab consultant had done a good job and they accepted the fraudulent medical reports that stayed in my file throughout the claim.

So I wrote to my MPP, Earnie Eves and the Ontario Attorney General. They’d care, right?

Mr. Eves alerted the Ontario Securities Commission (OIC now FSCO), meetings were had (I was not there), and the Superintendent got involved but eventually it was swept under the rug when it was found that the doctor, whose report was based almost entirely on the absentee rehab specialist’s fake visits, was on the Designated Assessment Center (DAC) subcommittee at the OIC.

So I wrote to CPSO and though it took many months to come up with a ‘confidential’ decision that the doctor had “poor report writing skills” – I was no further ahead, my recovery resources had been denied for some time and the rehab specialist and the insurer doctor were still in business, still harming victims and that just wasn’t right. It didn’t just affect me, I had another injured family member involved.

I thought the Ontario Ombudsman might help. After all, it wasn’t just me who had been defrauded, there were others who were openly complaining about this insurer and how their medical files were being handled. Surely the Ombudsman would take action on fraud and how it plays into the medical file manipulations of insurers.

According to the Ontario Ombudsman they couldn’t take on the complaint while there is an open file at FSCO. I was told I could come back later, when the case was over. So it sounded like they cared about fraud, right?

Wrong. I settled without going to arbitration over the SABs owing to me. I went back to the Ombudsman whose response was that I had settled my claim and my opportunity to voice my concerns had been at the FSCO hearing stage, I had failed to go to a hearing, had failed to make my concerns known and now that my case was settled, they couldn’t help me. Or my family member.

Later on at my family member’s Arbitration hearing the arbitrator refused to accept the report I had prepared about our insurer’s fraud.

Turns out no one cared about fraud. Least of all the insurer whose business model encouraged fraud as long as it benefited them. And that’s exactly why we shouldn’t trust the insurers now.

I never heard back from the Attorney General but I did keep a copy of the registered letter to him and the letter of response from the OPP who examined what I sent them. My family member still  has to counter these undressed fraudulent reports 23 years later at insurer medical exams. Most recently an IME provider suggested in his medical report that the 1999 letter to the Attorney General was used to intimidate him.

It’s extremely concerning that the insurers are in any way involved in setting up this new ‘serious’ fraud office. Especially given what went on in the ’90s when the media pointed out the aggressive and invasive tactics used by the ICPB when they ‘investigated’ Ontario’s accident victims. And the insurer’s fingerprints are all over this latest rendition with more of the same and it will be the accident victim who will be a casualty of the war on fraud once again.

Because through the insurer’s lens, fraud happens only one way, it comes from Ontario’s accident victims and those who care and support them.

The new fraud squad will be a nightmare for claimants – not for the insurers who will happily use it as a tool to intimidate innocent accident victims. In today’s ‘connected’ environment insurers already have access to way more personal information than they should and I have no doubt that the surveillance tools they will use will be all that much more sophisticated, invasive and dangerous.

Will this new fraud office investigate the insurer fraud? It’s unlikely unless this office is truly independent.

The IBC has lobbyists who work hard to influence our elected officials, even at the Federal level where they work on eroding the Charter rights and the privacy rights of accident victims across the country. We shouldn’t be lulled into complacency or believe that insurers have their customers best interests at the heart of what they do – they don’t. And our elected officials are more than willing to help them, and not consumers.

In the future private investigators merely following accident victims around in cars while snapping photos and writing reports that make unqualified medical judgments about victims will look like child’s play. There was a good reason that the Hamilton Spectator’s Steve Buist covered the stories about the ICPB intimidation and aggression toward car accident victims. Big Brother has boots and he’s more than will to use them.

Rhona DesRoches, December 11 2017

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