Canada: Imposition Of Terms Of Attendance On Section 44 Assessment = Refusal To Attend

Last Updated: November 13 2015
Article by Kelly Tranquilli

Deschambault and Wawanesa, FSCO A14-005855, October 8, 2015

Accident benefit insurers continue to be called upon to justify their entitlement to assessments under section 44 of the Schedule, notwithstanding the clear language of the section.  A recent decision affirms that section 44 clearly entitles the insurer to an assessment and that there must be evidence of unfairness before limits will be imposed.

Deschambault and Wawanesa recognized that the insurer has a presumptive right to section 44 examinations and that an insured's insistence upon imposing limits upon the assessment can amount to a refusal to attend that would permit an insurer to refuse to pay a benefit under section 37(7) of the Schedule.

In Deschambault the arbitration was scheduled for determination of the insured's entitlement to a non-earner benefit.  The insurer previously conducted a multi-disciplinary assessment and concluded the insured did not meet the disability test.  The insured applied for mediation approximately one year later and presented new information in support of his claim.  The insurer scheduled a further multi-disciplinary assessment a few months later.  The arbitration was scheduled for over one year later.

The insured refused to attend the assessments unless the insurer agreed to the following terms:

  1. the right to review any consent forms with his lawyer;
  2. limit the examination to issues raised by his new medical productions;
  3. limit the examination to one hour; and
  4. limit the assessors to issuing a single report based upon the new examination.

The Arbitrator held that the examinations were reasonably necessary without terms and that the terms sought by the insured amounted to a refusal to attend, staying the arbitration and triggering section 37(7) of the Schedule.

There was no absolute right to review the consent with counsel prior to signing and there was no evidence that prior consents breached the insured's rights under the Schedule.

An in-person examination would serve no purpose if it were limited to new issues raised in the insured's productions.

A time limit was not a reasonable restriction to the insurer's right to examination and ran contrary to section 44(9)(iii) of the Schedule.  There was no evidence of prior misconduct.

There was no reasonable basis to limit the assessors to issuing a single report.  It would require the insurer to again engage the examination process in the event it receives new information that could be reviewed without an in-person examination.  This ran contrary to the insured's position that an in-person examination should be avoided if reasonably possible.

The message:  While section 44 assessments obliges the insured to submit to "reasonable" examinations, this does not open the door to the insured imposing terms or limits on the assessment without evidence to support such a demand.

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