Accessing accident benefits in a different country when prevented from returning – What is the insurer’s obligation to accommodate a client out of the country in regard to Insurer Examinations?
We have responded to a number of recent inquiries as to whether an individual can access accident benefits in a different country when they are prevented from returning, and whether the insurer has an obligation to accommodate a client that is out of the country with regard to insurer examinations.
In response, it appears that individuals are able to access accident benefits for treatments in jurisdictions outside of Canada. There are several factors to be considered in making the determination of whether a claim for that treatment may be allowed, with the most important factor being the special needs of the plaintiff. If it is determined that the plaintiff is acting reasonably by requesting treatment outside Canada, the insurer has an obligation to allow access to their benefits.
As to whether the insurer has an obligation to accommodate a client that is out of the country with regard to insurer examinations, there are some legislative provisions that may provide assistance. The insurance company must pay for the insurer examination per section 44 of the Statutory Accident Benefits Schedule (SABS). Failing to do so in this instance would result in unfair fees for the individual and potentially delay their claim, contrary to section 439 of the Insurance Act (IA).
Can an individual access accident benefits for treatment in a different country if they are prevented from returning?
Kemp v Wittenberg states that treatment abroad may be granted with consideration of the following factors at para 252: (i) the complexity of the treatment required; (ii) the availability of the necessary expertise in the area in which the plaintiff resides; (iii) special characteristics or needs of the plaintiff; (iv) the relative difference in cost in receiving the treatment locally rather than in a distant location; and (v) the cost of treatment at a place outside of the plaintiff’s home area relative to the seriousness of the injury suffered.
In Pedherney v Jensen the insurance company relied on the factors in Kemp and argued that treatment outside of Canada should not have been granted because there was treatment available within the claimant’s province (Alberta). The decision maker stated that plaintiffs must act reasonably in the context of treatment (i.e., to the standard of a reasonable person) and because the plaintiff acted reasonably the treatment was enforceable regardless of whether the treatment was available within Alberta.
The third Kemp factor (special characteristics or needs of the plaintiff) is the most important in this situation because the issue surrounds the plaintiff’s need to stay outside of Canada. In this case, the plaintiff has an objectively reasonable need to be outside of Canada with their family. Additionally, Insurance companies do not have any legislative ability to restrict an individual’s mobility rights and it would therefore be unreasonable for an insurance company to require the plaintiff to stay in Canada. For these reasons, the plaintiff should be allowed to access accident benefits outside of Canada.
Is an insurer obligated to accommodate a client that is out of country in regard to IEs?
Section 44(1) of SABS states that insurer examinations may be required. Section 44(5) of SABS states that when these examinations are required, the insurer shall arrange for the examination at its expense. Therefore, if the insurer decides to request an insurer examination, they must pay for the transportation costs themselves. While we were unable to find case law that touched on a claimant who no longer resides in Canada, SABS does not bar insurance companies from paying for claimants’ flights into Canada.
Another relevant provision is section 439 of the IA. This section states that “no person shall engage in any unfair or deceptive act or practice.” The Financial Services Regulatory Authority of Ontario has an external Unfair or Deceptive Acts or Practices Rule (Rule) that addresses section 439 and applies to insurance adjusters. Relevant sections are as follows:
2(1) For the purposes of the definition of “unfair or deceptive act or practice” in section 438 of the Act, conduct, including inaction or omission, which results in, or could reasonably be expected to result in the outcomes, events or circumstances set out in s. 3 through s. 10 of this Rule is prescribed as an unfair or deceptive act or practice
5(1) Unreasonable or unfair resolution or delay in the adjudication, adjustment or settlement of any claim, including but not limited to,
- treating a claimant in an arbitrary, capricious or malicious manner,
- (ii) not acting in good faith,
- (iii) seeking a result which is inequitable or inconsistent with a claimant’s rights under the contract,
- (iv) imposing unreasonable or unfair costs or expenses on the (1) claims handling or dispute resolution processes, (2) goods or (3) services,
- (v) communicating in an untimely manner or misrepresenting the rights of a claimant or obligations of an insurer under the contract, or
- (vi) any adjuster or insurer not following fair, simple and accessible claims handling procedures or not providing a claimant timely, clear, comprehensive and accurate information about the status of its claim, the process for settling its claim or reasons for a decision made respecting its claim.
In one specific case, (our client) had to return to his country through no fault of his own and is unable to return to Canada. Due to the fact that the insurer is required to arrange for an insurer examination at their own expense, it is contrary to the legislation to require (our client) to pay to attend the insurer examination. Thus, refusing to allow remote insurer examinations or to require in person insurer examinations where expenses are not paid by the insurance company will impose unfair costs and expenses on (our client) and may also delay the claim should the insurance company refuse to make claims decisions due to a lack of assessment material, which is contrary to section 5 of the Rule.
If you have more questions about accessing accident benefits in a different country, or if you have a situation in which you are unsure how to proceed, please get in touch with our team of legal professionals at Reybroek Law.
