Canada: No Cameras Please! No Policy Breach By Insurer Who Refused Video Recording Of Medical Examination

Greenidge v Allstate Insurance Company, 2018 ABQB 266

The recent Alberta Court of Queen's decision, Greenidge v Allstate Insurance Company, determined that an insurer was not in breach of Section B of the Standard Automobile Policy (the "Policy") for discontinuing the insured's benefits after she refused to attend a medical examination unless it was video recorded. The Court held that an insurer can require a medical examination under the terms that the medical practitioner permits which, in this case, included no video recording.

Background

Following a motor vehicle accident, Ms. Greenidge applied for Section B benefits to cover expenses related to treatment of whiplash and TMJ injuries. Pursuant to the Policy, Allstate retained a medical practitioner, Dr. Grade, to perform a medical examination of Ms. Greenidge. Ms. Greenidge requested that the examination be video recorded, but Dr. Grade did not accept videographers. It was Allstate's position that Ms. Greenidge was "under a contractual obligation to attend an appointment for an examination with a duly qualified medical practitioner of [their] choice" and that nothing in the Policy allows for videographers. Ms. Greenidge suggested that she attend with a videographer at her expense, or, alternatively, attend an examination with another medical practitioner who allows video recording. Allstate declined both options, the examination never proceeded and Allstate declined all further coverage to Ms. Greenidge under Section B.

Ms. Greenidge alleged that Allstate breached its duty of utmost good faith by denying her the right to have the examination video recorded. As well, Ms. Greenidge argued that as the examination would not address her TMJ injury, Allstate should not have denied coverage in relation to any TMJ expenses.

Allstate took the position that Ms. Greenidge was asking the Court to find an implied condition in the Policy which would "fetter Allstate's legislated ability to select its chosen medical practitioner", and that that would be "contrary to the purpose and intention of the requirement for an insured to attend a medical examination by a professional chosen by the insurer."

Duty of Good Faith

The Honourable Mr. Justice K.G. Nielsen outlined the duty of utmost good faith in insurance contracts.

The insurer is vulnerable to the insured because it relies on information provided by the insured in order to decide whether to provide insurance coverage as well as in conducting its investigation and payment of a loss; the insured is vulnerable to the insurer because the ultimate decision regarding whether to pay out a loss, and in what amount, is entirely in the hands of the insurer: Barbara Billingsley, General Principles of Canadian Insurance Law, 2nd ed (Markham, Ont: LexisNexis Canada Inc, 2014) at 50.

In order to find a breach of the duty of good faith by the insurer, the insurer must have acted in some way without reasonable justification (Gordon G Hilliker, Insurance Bad Faith, 3d ed (Markham, Ont: LexisNexis Canada, 2015) at 49-50).

Policy Interpretation

Determining what the insurer is permitted to require of its insureds and when they can disentitle an insured to coverage requires interpreting the Policy. The Alberta Court of Appeal recently summarized the law on interpretation of insurance policies in Cardinal v Alberta Motor Association Insurance Co.:

11 If the language of an insurance policy, when read as a whole, is unambiguous, effect should be given to the clear language. If the language is ambiguous, the ambiguity should be resolved through the application of the general rules of construction. If ambiguity remains after application of the general rules, then the policy can be construed against the insurer pursuant to the principle of contra proferentem. Coverage provisions should be construed broadly but exclusions should be construed narrowly... Automobile insurance policies, including endorsements, are approved by the legislature so there is an element of statutory construction involved in their interpretation. This requires a court to determine the meaning of the policy in its entire context, in its grammatical and ordinary sense harmoniously with the scheme of the legislation, the object of the legislation, and the intention of the legislature...

The Rules of Court and Section B

Justice Nielsen held that the Alberta Rules of Court provisions with respect to medical examinations, particularly Rule 5.42(1)(b) which permits a person who is to be the subject of a medical examination by a health care professional to video record their examination, are not incorporated in the Policy. Since the Rules govern the practice and procedure in relation to persons who come before the Courts for resolution of a claim, and the requirement by an insurer for a medical examination under Section B is not in the context of litigation before the Court, the Rules do not apply.

As well, Justice Nielsen stated that the legislature has chosen not to incorporate reference to Rule 5.42 in the Automobile Accident Insurance Benefits Regulation. As such, he held that it is not appropriate to read into the Policy a term that Rule 5.42 applies to medical examinations under the Policy.

Whether There Was a Breach of Section B

Justice Nielsen ultimately held that the provision in Section B is not ambiguous. Special Provision 4 allows an insurer to select a medical practitioner. The medical practitioner "was fully entitled to establish an examination policy as to how the Medical Examination would be conducted", which in this case was a policy disallowing videographers.

Justice Nielsen held that Allstate did not act unfairly in insisting that Ms. Greenidge attend the examination with their chosen medical practitioner, Dr. Grade, on the terms as determined by Dr. Grade. Nothing in Section B restricts how a medical practitioner conducts their examinations. Therefore, Allstate did not breach the terms of the Policy or its duty of utmost good faith to Ms. Greenidge when it discontinued coverage for further benefits pursuant to Section B.

With respect to the TMJ injuries, Justice Nielsen noted that Special Provision 6(b) of Section B provides that a "person shall not bring an action to recover the amount of a claim under this section unless the requirements of provision (4) are complied with." Special Provision 6(b) does not refer to "subclaims" or "separate claims" based on the nature of the injuries suffered, but, rather, refers to an action to recover the amount of a "claim." Justice Nielsen held that since Ms. Greenidge was in breach of Special Provision 4, she was no longer entitled to commence an action against Allstate to recover an amount in relation to any injuries she allegedly suffered as a result of the motor vehicle accident, including her TMJ.

Conclusion

We understand that the decision is likely being appealed. We will monitor the outcome of any appeal and provide an update in the future if warranted. In the meantime, based on Justice Nielsen's decision, if insureds refuse to attend a Section B medical examination on the basis that it will not be video recorded, they run the risk of having their benefits discontinued. As determined by Justice Nielsen, insurers will not likely be found to be in breach of their duty of good faith if they discontinue benefits in these circumstances.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Events from this Firm
19 Dec 2017, Webinar, Calgary, Canada

McLennan Ross previously conducted a webinar on June 6, 2017 about the passage of Bill 17, during which we reviewed the changes to the Employment Standards Code and the Labour Relations Code. During that webinar, we identified a number of issues which would depend upon the language of the Regulations, which had not yet been developed.

17 Oct 2018, Webinar, Calgary, Canada

We have been preparing for legalization day since Bill C-45 was first introduced. With October 17th just around the corner, our Corporate, Labour & Employment, and Insurance groups have the answers to your questions.

24 Oct 2018, Webinar, Calgary, Canada

A written employment agreement is an often ignored best practice for non-union employers. A written agreement can be a critical risk management tool if it properly sets out duties, rights and expectations both during the employment relationship and after it ends.

Similar Articles
Relevancy Powered by MondaqAI
 
In association with
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
 
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions