MOUSSI v TD HOME AND AUTO INSURANCE COMPANY, 2019 ABQB 242
1.2: Purpose and intention of these rules
7.1: Application to resolve particular questions or issues
The Plaintiff, a minor who had suffered injuries in an automobile accident, had filed a claim for coverage in regards to an injury to his jaw. The Defendant insurer wanted the Plaintiff to attend an independent medical examination by a dentist of the insurer’s choosing. The Plaintiff objected on the basis that a dentist was not a “qualified medical practitioner” as contemplated by the insurance policy.
The Application was brought by the Plaintiff pursuant to Rule 7.1(2) to decide on a question of law as to whether the Defendant insurer was entitled to an “independent dental examination.”
The Court began by confirming that Rule 7.1 must be interpreted in light of the purpose and intention of the Rules as stated in Rule 1.2, namely to resolve disputes in a timely and cost-effective way. Moreover, Master Birkett referred to jurisprudence confirming that the burden is on the Applicant in a Rule 7.1 Application to prove on a balance of probabilities that the issue should be determined in their favour. Furthermore, a determination of the issue by the Court invokes res judicata such that the issue cannot be reopened or re-litigated at Trial.
Master Birkett summarized the relevant case law and reiterated that there is a degree of cooperation expected between an insurer and an insured. In that vein, when an insurer requires an insured to be examined by a medical professional, and there is a good faith basis for this requirement, the insured must comply. The Plaintiff was required to submit for an examination by the dentist.View CanLII Details