) ) KACEY JOAQUIM ) David B. Hayward, for the Appellant ) Appellant ) ) – v. –, 2023 ONSC 5120

CITATION: Joaquim v. Intact Insurance Company, 2023 ONSC 5120 COURT FILE NO.: 683/22 DATE: 20230911 ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT D.L. Corbett, Leiper, and Muszynski JJ. BETWEEN: ) ) KACEY JOAQUIM ) David B. Hayward, for the Appellant ) Appellant) ) – and – ) ) INTACT INSURANCE COMPANY ) Marni E.

Miller, for the Respondent ) Respondent) ) HEARD at Toronto by ZOOM: May 17, ) 2023 reasons for decision Muszynski J. [1] This appeal from decisions of the Licence Appeal Tribunal (the “LAT”) addresses whether automobile insurers can requirean insured to undergo a medical examination to determine eligibility for prescription medications claims. BACKGROUND [2] Ms. Joaquim was injured in a motor vehicle collision on January 12, 2017. Shortly thereafter, she filed a claim for statutoryaccident benefits with her auto insurer, Intact Insurance Company. On September 12, 2019, Ms.

Joaquim submitted a claim to Intact forexpenses related to prescription medication. Intact requested information from Ms. Joaquim to determine if the expenses claimed werereasonable and necessary. Ms. Joaquim did not respond. Intact then advised Ms. Joaquim that she was required to undergo anexamination to determine whether the proposed expense was reasonable and necessary pursuant to

section 44 of the Statutory AccidentBenefits

Schedule – Effective September 1, 2010, O. Reg. 34/10 (the “Schedule”, a regulation made under the Insurance Act, R.S.O.1990, c. I.8). Ms. Joaquim declined to attend at the examination on the basis that the

Schedule does not permit insurers to requestexaminations to determine eligibility for prescription medication claims. Intact denied Ms. Joaquim’s claim. [3] Ms. Joaquim applied to the LAT to dispute the denial of her claim. Following a written hearing on the preliminary issue ofstanding, LAT Adjudicator Stephanie Kepman determined that Ms. Joaquim was barred from proceeding with her application because ofher refusal to attend at the examination: Joaquim v. Intact Insurance Company, (ON LAT) (“initial decision”).

Ms.Joaquim requested a reconsideration of the Adjudicator’s decision, which was also denied: Joaquim v. Intact Insurance Company, (ON LAT) (“reconsideration decision”). [4] Ms. Joaquim appeals the initial decision and the reconsideration decision barring her from proceeding to a hearing on themerits of whether her claim for prescription medication is eligible for reimbursement from Intact. [5] For the reasons that follow, I would allow the appeal and set aside the decisions of the Adjudicator refusing Ms.

Joaquimstanding to commence a proceeding at the LAT to dispute the denial of her prescription medication claim. POSITIONS OF THE PARTIES [6] Ms. Joaquim submits that the Adjudicator erred in concluding that section 44(1) of the

Schedule gives insurers theauthority to require an insured to undergo examinations to determine whether claims for prescription medications are reasonable andnecessary. In support of her position, Ms. Joaquim submits that the modern approach to statutory

interpretation requires that

section 44be read in the context of the entirety of the

Schedule and that the Adjudicator misinterpreted Ward v. State Farm Mutual AutomobileInsurance Co., [2016] O.F.S.C.D. No. 54 (Ont. Fin. Serv. Com.). [7] Intact takes the position that the Adjudicator correctly found that Ms. Joaquim’s failure to attend at an examination barredher from disputing the denial of her claim at the LAT. Intact’s chief submission is that the Arbitrator correctly held that section 44(1) of

the

Schedule provides an insurer with the overarching authority to require an examination to determine whether any statutory accident benefit is reasonable and necessary, unless it falls into an enumerated category of benefits that is specifically excluded, which prescription medication does not. JURISDICTION [ 8 ] An appeal from a decision of the LAT lies to the Divisional Court on questions of law: Licence Appeal Tribunal Act , 1999 , S.O. 1999, c. 12, Sched. G , at ss. 11(1) , 11(6) . [ 9 ] The question of law raised by this appeal is whether the LAT erred in its

interpretation of the

Schedule by concluding insurers may require an insured to attend at an examination to determine their eligibility for prescription medication claims. The applicable standard of review is correctness. ANALYSIS Relevant provisions of the

Schedule [ 10 ] The

Schedule sets out the rules involved with making and administering claims for various categories of statutory accident benefits available to individuals injured in motor vehicle collisions. [ 11 ] The processes for making claims vary depending on the type of benefit being claimed. For instance, the

Schedule provides that claims for medical or rehabilitation benefits have different documentary requirements and procedures than claims for attendant care or income replacement benefits. When there is a dispute about entitlement to any benefit, an insured can initiate a proceeding at the LAT to have the matter adjudicated unless they are specifically barred from doing so for reasons outlined in

section 55 of the

Schedule . [ 12 ] Section 44(1) of the

Schedule provides that an insurer can require that an insured be examined by a regulated health professional to assist in determining entitlement to the statutory benefit being claimed. Section 44(3) creates exceptions for benefits payable in accordance with the Minor Injury Guideline, funeral benefits, and death benefits. The exceptions set out in section 44(3) are not applicable in this case. [ 13 ] There is no dispute that failing to attend at an insurer examination under

section 44, when properly requested, can bar an application to the LAT pursuant to section 55(1). The issue to be determined on this appeal is whether Intact had the authority to make the request for an examination under

section 44 in the first place. [ 14 ] Generally, claims for medical or rehabilitation benefits are submitted in a treatment and assessment plan (OCF-18) that must be approved by the insurer before the claim is paid: s. 38(2). If the insurer does not agree “to pay for all goods, services, assessments and examinations described in the treatment and assessment plan” the insurer may require the insured to undergo an examination under

section 44 to determine their entitlement: s. 38(10). [ 15 ] Prescription medications fall under the category of medical or rehabilitation benefits. However, section 38(2)(

c) of the

Schedule creates exceptions for claims for prescription medication and for claims for goods with a cost of $250 or less per item, which do not have to be submitted as part of a treatment and assessment plan, but rather a less cumbersome expense claim form (OCF-6). Regardless of how the claim is made, entitlement to any benefit in the medical or rehabilitation category depends on whether the expense is reasonable and necessary as a result of the impairment sustained by the insured person. [ 16 ]

Section 33 of the

Schedule provides the insurer with one mechanism for determining whether a claimed expense is reasonable and necessary. Under

section 33, an insurer can request information reasonably required to assist in determining entitlement to a benefit, including requiring the insured to sign a statutory declaration as to the circumstances that gave rise to the application, or submit to an examination under oath. If the information does not support eligibility, is not adequate or, as in this case, is not forthcoming, the remedy is simple – the insurer may deny the claim. [ 17 ]

Section 38 of the

Schedule sets out the process for applying for medical or rehabilitation benefits.

Section 38 specifically permits an insurer to require the insured to undergo a medical examination when there is a dispute involving an expense described in a treatment and assessment plan . There is no such provision with respect to claims that are submitted without the requirement of a treatment and assessment plan, such as claims related to prescription medication and goods under $250. [ 18 ] Ms. Joaquim takes the position that the Arbitrator erred in failing to appreciate the distinction between medical or rehabilitation expenses the

Schedule requires be submitted via treatment and assessment plans and those submitted through expense claim forms. Ms. Joaquim submits that since section 38(10) describes a dispute over a treatment and assessment plan as the triggering event to request an examination under

section 44, such examinations are not available for claims relating to prescription drug expenses or claims involving goods under $250 per item, which are not submitted through a treatment and assessment plan. The last antecedent rule does not assist Intact; the preferred method of statutory

interpretation favours contextual analysis and reading the

Schedule as a whole [ 19 ] Intact relies on the “last antecedent rule” to support its position that the Adjudicator correctly decided that claims for any type of goods or services – even those which do not have to be submitted through a treatment and assessment plan – may be subject to the requirement of an examination under

section 44. [ 20 ] Section 38(10) states: If the insurer has not agreed to pay for all goods, services, assessments and examinations described in the treatment and assessment plan or believes that the Minor Injury Guideline applies to the insured person’s impairment, the notice under subsection (8) may notify the insured person that the insurer requires the insured person to undergo an examination under

section 44. [Emphasis added.]

[21] Intact submits that because no comma is present following the word “examinations”, the qualifying clause “described in thetreatment and assessment plan” only applies to the last antecedent, that being “assessments and examinations”. Accordingly, Intact statesthat “goods”, “services”, and “assessments and examinations described in the treatment and assessment plan” are three separate silos ofbenefits that can each attract a request for an examination under

section 44. [22] The entire phrase “goods, services, assessments and examinations described in the treatment and assessment plan” appearson four occasions in the

Schedule in the same grammatical form. In my view, the application of the last antecedent rule simply does notmake sense when these other instances are considered. For instance, section 38(8) provides:

(8) Within 10 business days after it receives the treatment and assessment plan, the insurer shall give the insured person a notice thatidentifies the goods, services, assessments and examinations described in the treatment and assessment plan that the insurer agrees topay for, any the insurer does not agree to pay for and the medical reasons and all of the other reasons why the insurer considers anygoods, services, assessments and examinations, or the proposed costs of them, not to be reasonable and necessary. [Emphasis added.] [23] While the last antecedent rule is one tool used to aid in statutory

interpretation, I prefer the approach set out in Rizzo &Rizzo Shoes Ltd. (Re), (SCC), [1998] 1 S.C.R. 27, that emphasizes that words are “to be read in their entire context andin their grammatical and ordinary sense”: at para. 21. [24] When the entirety of the

Schedule is considered, in my view, section 38(10) can only be read one way – when there is adispute about a claim for medical or rehabilitation benefits advanced through a treatment and assessment plan related to goods, services,or examinations and assessments, the insurer can require the insured to attend at an examination pursuant to

section 44. The Arbitrator erred in concluding that section 44(3) of the

Schedule provides the only limits on an insurer to request an examinationunder section 44(1) [25] According to the Arbitrator, the exceptions identified in section 44(3) of the

Schedule – claims for benefits payable inaccordance with the Minor Injury Guidelines, funeral benefits, and death benefits – are the only restrictions on an insurer’s overarchingability to request an examination under section 44(1). Intact submits that the Arbitrator correctly decided that an insured can be requiredto attend at an examination to determine whether any other benefit is reasonable and necessary. I disagree. [26] Again,

section 44 must be read in the context of the

Schedule as a whole. This is consistent with the preferred modernapproach to statutory

interpretation: Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42, [2002] 2 S.C.R. 559, at paras. 26-27. [27] The

Schedule refers to the specific instances where an insurer may request an examination under

section 44: •

Section 36 permits an insurer to request an examination in response to receiving an application and completed disability certificate(OCF-3) for income replacement benefits, non-earner benefits, caregiver benefits, or payment for housekeeping or home maintenanceservices, collectively defined as “specified benefits”; •

Section 37 permits an insurer to request an examination to determine a continuing entitlement to specified benefits; and •

Section 42 permits an insurer to request an examination in response to receiving an application for attendant care benefits in theprescribed form. [28] What purpose would be served by describing the specific processes that may trigger a request for an examination insections 36, 37, 38, and 42 if the insurer is already afforded the overarching authority under

section 44 to require an examination todetermine eligibility for any benefit – aside from those specifically excluded under section 44(3)? [29] Further, and contrary to the Arbitrator’s conclusion, section 44(3) does not provide an exhaustive list of circumstanceswhere an insurer is prohibited from requesting an examination. For example, section 42(12) of the

Schedule prevents an insurer fromrequiring an examination under

section 44 to determine continuing entitlement to attendant care benefits if more than 104 weeks havepassed since the accident. [30]

Section 44 cannot be read in isolation. This is the error committed by the Arbitrator.

Section 44 does not confer overridingauthority on insurers to request examinations to determine whether a benefit being claimed is reasonable and necessary in anycircumstance. When viewed as a whole, it is clear that the

Schedule identifies the specific instances when insurers may require aninsured to undergo an examination under

section 44 to determine their entitlement to a benefit. In the context of medical or rehabilitationbenefits, I find that a dispute about a claim described in a treatment and assessment plan is the triggering event that permits an insurer torequire the insured to attend at an examination under

section 44. As claims for prescription medications are not submitted throughtreatment and assessment plans, I find that the Arbitrator erred in finding that Intact could require Ms. Joaquim to attend at anexamination under

section 44. The Adjudicator erred in her

interpretation of Ward [31] Ward is a 2016 decision of the Financial Services Commission of Ontario that concludes that an insurer cannot require aninsured to attend at an examination under

section 44 to determine entitlement to prescription medications claims, which is the oppositeconclusion to that reached by the Adjudicator in this case. [32] Although not binding, prior administrative tribunal decisions should be viewed as persuasive and provide guidance into theinterpretation of the Schedule: P.P. v. Wawanesa Mutual Insurance Company, (ON LAT), at para. 16. [33] In the initial decision, at para. 13, the Adjudicator considered Ward but found it to be distinguishable because: the prescription drugs in question cost less than $250.00, and thereby fell within both sections 38(2)(c)(

i) and 38(2)(c)(ii) of the

Schedule , which is not the case for the prescription drugs before me. Furthermore, Ward did not specifically address if an insurer is entitled to a

section 44 assessment in matters where prescription drugs cost more than $250.00. [ 34 ] In the reconsideration decision, the Adjudicator found that she made no error of law or fact in her analysis interpreting Ward . I disagree. [ 35 ] Ward specifically concludes that since treatment and assessment plans are not required for claims for prescription drugs or goods under $250, examinations under

section 44 are unavailable for claims relating to either of these benefits. Whether the prescription drug claim in Ward was under $250 is immaterial as it was found that “either one of the two tests is required to be passed in order to qualify the drugs in question to be exempt”: Ward , at p. 10. [ 36 ] Further, the Adjudicator incorrectly found that because the prescription medication claim advanced by Ms. Joaquim was over $250, it is distinguishable from Ward . Ms. Joaquim’s claim included eight individual itemized prescription expenses, each under $250, the total of the eight prescriptions being $1,102.32.

The treatment and assessment plan exemption contained at section 38(2)(c)(ii) applies to “goods with a cost of $250 or less per item”. Ward is not distinguishable on this basis. CONCLUSION [ 37 ] The Adjudicator erred in finding that Intact had the authority to require Ms. Joaquim to attend at an examination under

section 44 to determine her entitlement to a claim for prescription medication. Accordingly, the Adjudicator erred in finding that Ms. Joaquim is barred from commencing a proceeding at the LAT disputing the denial of her prescription drug claim. [ 38 ] I would allow the appeal and set aside the decisions of the Adjudicator refusing Ms. Joaquim standing to commence a proceeding at the LAT to dispute the denial of her prescription medication claim. “Muszynski J.” I agree: “D.L. Corbett J.” I agree: “Leiper J.” Released: September 11, 2023 CITATION : Joaquim v. Intact Insurance Company , 2023 ONSC 5120 COURT FILE NO.: 683/22 DATE: 20230911

ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT BETWEEN: KACEY JOAQUIM Appellant INTACT INSURANCE COMPANY Respondent REASONS FOR DECISION Muszynski J. Released: September 11, 2023