costigan, schutz and crighton JJa

5.42: Options during medical examination

Case Summary

The Appellant was injured in an automobile accident, and sought coverage under her automobile insurance policy. The Respondent insurer made some initial payments, but later denied coverage after the Appellant refused to attend any medical examination which was not video recorded. The Appellant brought suit against the insurer, arguing that discontinuation of coverage was a breach of the insurance contract.

At issue was the term of the insurance contract providing that the Appellant “afford to a duly qualified medical practitioner named by the Insurer an opportunity to examine the [Insured]”. The Trial Judge found for the Respondent, deciding that the insurance contract provided the Respondent with the right to choose the medical practitioner, and did not provide the Appellant with the right to mandate the medical practitioner’s manner of conducting the examination. Moreover, the Trial Judge held that Rule 5.42(1)(b)’s authorization of video recording was not incorporated into the insurance contract by reference, and ought not to be read into the contract.

The Court of Appeal agreed with the Trial Judge and dismissed the Appeal.

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