Written By: Kate Hunter, Associate and Alexis Andrew, Student-at-Law
5 Minute Read
Overview
In Small v Northbridge General Insurance Company, 2026 ON LAT 21072, the Ontario Licence Appeal Tribunal (“LAT”) held that an insurer cannot justify an additional in-person independent examination (“IE”) simply because a new medical report has been produced by the Applicant. The insurer must demonstrate that the additional IE is reasonably necessary and why other less invasive alternatives would be insufficient.
Facts
The Applicant, Neil Small, was injured in an automobile accident on July 31, 2023, and applied for accident benefits through his insurer. The insurer denied his claim and applied to the LAT to resolve the dispute.
The insurer brought a motion seeking an Order to compel the Applicant to attend the IE. The LAT held that it was not within their jurisdiction to compel the Applicant’s attendance, and that it was too early to address the issue of non-attendance as the IE hadn’t happened yet.
The Applicant did not attend the IE. After this, the insurer brought a motion requesting the LAT to consider whether, under the SABS, the application for accident benefits should be stayed for failure to attend the requested IE.
The insurer argued that the scheduled IE, that the Applicant did not attend in March 2025, was necessary to respond to the chronic pain assessment report submitted in January 2025. Although the insurer had previously conducted an IE in May 2024 addressing the same issue, the insurer took the position that this new examination was necessary because new questions about the Applicant’s injuries arose in the January 2025 report.
The Applicant contended that the proposed IE was unnecessary and duplicative. His position was that the insurer already had a medical report that addressed both his injuries and his chronic pain assessment. He argued that another in-person examination is unreasonable and the insurer could have the existing reports reviewed instead.
Legal Framework
Pursuant to section 44 of the SABS, an insured person who applies for accident benefits may be required by their insurance company to attend an IE by one or more health professionals chosen by the insurer to determine if an insured person is or continues to be entitled to accident benefits. However, the insurance company cannot require examinations “more often than is reasonably necessary”.
In determining whether the IE was reasonably necessary, the Adjudicator applied the criteria set out in 17-005291/AABS v. Travelers (2018, ON LAT). These criteria consider several key factors:
- The timing of the insurer’s request,
- The possible prejudice to the other side,
- The number and nature of the previous insurer’s examinations,
- The nature of the examination being requested,
- Whether there are any new issues being raised in the applicant’s claim that require evaluation, and
- Whether there is a reasonable nexus between the examination requested and the applicant’s injuries.
Application of the Criteria
In applying the criteria, the Adjudicator accepted that the IE was requested to respond to the applicant’s chronic pain report and that there was a reasonable nexus between the requested IE and the Applicant’s injuries. The timing of the request was also accepted as reasonable because it followed the receipt of the applicant’s chronic pain report submitted in January 2025.
However, the Adjudicator found that the requested IE was not reasonably necessary. In reaching this conclusion, significant weight was placed on the fact that the insurer had already obtained two in person examinations assessments, including a musculoskeletal examination that was conducted by the same assessor that was proposed to do the new IE. Both prior examinations addressed the issues in dispute. Notably, the musculoskeletal assessor had already concluded in his previous examination that the Applicant did not meet the criteria for a chronic pain condition warranting further assessment.
The Adjudicator also rejected the insurer’s argument that a new in-person IE was required to respond to the chronic pain report. The insurer had not provided a sufficient explanation as to why a less intrusive paper review could not have been obtained instead. While the insurer argued that assessors generally prefer to conduct in-person exams when the pre-existing assessments are more than six months old, no evidence was provided to support that argument and there was no evidence that the paper review option had even been explored.
Accordingly, the Applicant’s failure to attend the proposed IE did not constitute non-compliance with section 44 of the SABS.
Key Takeaway
The existence of a new medical report obtained by the Applicant does not, in itself, justify an additional in-person IE. The insurer must establish that further examination is reasonably necessary and explain why less intrusive alternatives would be inadequate to address the issues in dispute.
