Xuan Zhou v. TD General Insurance Company, 2026 CanLII 74063 (ON LAT)
Coincidentally, almost two weeks before Justice Muszynski released her decision in Plante v. Dynamic Functional Solutions Inc. et al., another important decision was released by the Licence Appeal Tribunal (LAT) with respect to third-party medical assessment companies.
In Zhou, the applicant sought statutory accident benefits under the Statutory Accident Benefits Schedule (SABS) from her insurer following a collision on August 23, 2023. Prior to the two-year anniversary of the collision, in order to determine ongoing entitlement to post-104 income replacement benefits (IRBs), her insurer sought to send her to a series of insurer examinations arranged by Focus Assessments (Focus). Prior to the assessments, the applicant attempted to negotiate terms of consent for the section 44 assessments. However, the insurer/Focus refused to agree to two key terms:
(1) That correspondence, notes and draft reports prepared by the assessors would be preserved and produced if requested; and
(2) That Focus will not be involved in summarizing records, report writing excepting grammatical and typographical errors and will not attempt to influence or change the substantive opinions of the assessors.
As a result of the failure to agree on terms, the insurer held the applicant in non-compliance with section 44 and terminated IRBs. A LAT application was filed shortly thereafter, and the matter was heard in writing at a preliminary issue hearing.
The LAT Adjudicator, Vice-Chair Trina Morissette, determined that there was a reasonable explanation for the applicant’s non-attendance at the insurer’s examinations (IEs), as one of the clauses she was seeking to have included in the consent form was reasonable. Relying on the Superior Court decision inIntact Insurance v. Beaudry, 2016 ONSC 6127, Vice-Chair Morissette agreed that IE consent forms can be negotiated between the parties, and that any dispute related to the content thereof should be determined on the ground of reasonableness, on a case-by-case basis. In conducting that analysis, she determined that it was unreasonable to include a term in the consent form requiring the production of draft reports and correspondence, given that parties may seek an order for third-party productions and did not do so.
However, Vice-Chair Morissette also determined that it was in fact reasonable for the applicant to insist on a clause confirming that the IE assessor would personally review and summarize the file, complete the assessment and write their own report and to do so without any outside influence. Given that the applicant proposed a reasonable clause to the consent form, which was refused by the insurer, she found that the applicant had met the onus of satisfying her that there was a reasonable explanation for not attending the scheduled IEs. Strikingly, Vice-Chair Morissette further ordered the parties to proceed to a hearing on the substantive issues, meaning that the insurer will be forced to contest the hearing without any IE assessors to call as witnesses.
This decision is critical to protecting injured parties from the types of harms caused by third-party medical assessment companies as highlighted in Plante and other decisions like Higashi v. Chiarot, 2021 ONSC 8201. Setting terms of consent prior to IEs which specifically prohibits such behavior sends a strong message to insurers and assessment companies alike. Although it is apparently unreasonable to seek production of draft reports and correspondence in a consent form, the parties had already agreed in Zhou that such records can be preserved as a term of consent. Furthermore, in the matter of Franche v. Wawanesa, LAT File No. 21-000723/AABS, Adjudicator Craig Mazerolle has already determined that drafts and correspondence are relevant, as they shed light on the weight and reliability of the IE reports.