SABS Claim Barred Due to Failure to Comply With Production Requests

A recent decision of the Licence Appeal Tribunal shows that, if insureds do not comply with insurers’ production requests in a timely manner, they may be barred from receiving statutory accident benefits.

In I.A. v. TTC Insurance Company Limited, 2019 ONLAT 18-004128/AABS, attendant care benefits and non-earner benefits were in dispute.

The insurer made several requests for medical records for the time period of three years preceding the accident in question. The claimant and her lawyer did not respond to these requests until after the proceeding had progressed to the case management stage. There was a delay of over three years and three months in providing the documents.

Section 33 of the Statutory Accident Benefits Schedule (“SABS”) requires an insured to provide, within 10 days of a request, any information required to assist the insurer in determining entitlement to a benefit.

The insurer is not liable to pay a benefit during the period in which the insured fails to provide the insurer with the requested information. If there is a reasonable explanation for a delay, the insurer must pay the benefit withheld.

The insured’s lawyer stated that his firm has a policy to provide medical records for only one year prior to an accident. In this regard, he referred to the Dispute Resolution Practice Code that was in effect at the time the insurer made its production requests.

However, the insured did not even provide records for one year prior to the accident or for post-accident until a late stage.

Further, the guideline of one year in the Dispute Resolution Practice Code was only a general guideline. It was not binding. The adjudicator said that it was not open to the insured to bluntly reject the production requests, without communicating any objections to the insurer.

In addition, the adjudicator stated that “…to be credible, a reasonable excuse is one that is offered as soon as possible after it arises, and not one that is proffered only after an appeal proceeding is underway”.

The fact that the insurer continued to adjust the claim, including arranging for insurer’s examinations, did not waive the insurer’s right to rely on s. 33 of the SABS to obtain relevant information.

The adjudicator indicated that three of the insurer’s production requests cited s. 33 of the SABS and mentioned potential consequences of non-compliance. He said that these requests would trigger a response from any reasonable person, especially one with legal representation.

The adjudicator also rejected the insured’s argument that the insurer should have brought a motion for productions.

As a result of the insured’s non-compliance, the adjudicator held that the insurer was not liable to pay the disputed benefits.