Auto AB claim: Where privacy meets abuse of process

An Ontario court has rejected the privacy concerns of an auto accidents benefits claimant who refused to attend a psychological examination required by his insurer, finding that the claimant’s privacy concerns amounted to an abuse of process.

Ali Baradaran Bagherian was injured in a motor vehicle accident in July 2014. He commenced an application for income replacement benefits to the Ontario Licence Appeal Tribunal (LAT) in July 2017.

Twice, in 2018 and 2019, the LAT refused to grant a motion by Aviva Canada (Bagherian’s auto insurer) to dismiss the claim. Each time, the insurer sought dismissal on the grounds that Bagherian would not attend an independent medical examination (IME) with a psychologist, which was required by the insurer.

Each time, the LAT rejected the insurer’s motion for dismissal and ordered Bagherian to cooperate with the IME process.

For example, in July 2019, LAT vice chair Terry Hunter rejected Aviva’s motion to dismiss because [Bagherian] agreed to attend an IME with a psychologist. However, the IME was not completed “because of issues of consent raised by [Bagherian] and his threats to complain to the psychologist’s regulatory body,” the Ontario Superior Court found.

Aviva’s second motion to dismiss the claim was rejected by Hunter on June 1, 2020. Hunter ordered an IME with a psychologist within 90 days and “ordered that [Bagherian] not dispute the terms of the [privacy] consent form, not threaten action against the psychologist with a regulator until after the assessment was completed, and that he cooperate. [Hunter] noted that this was the appellant’s final chance to cooperate,” the Superior Court decision found.

Finally, after consideration of audiotapes Bagherian submitted of his third encounter with a psychologist, the LAT upheld Aviva’s motion to dismiss the claim on account of abuse of process.

Bagherian appealed LAT’s ruling to the Ontario Superior Court, which found no error. Bagherian argued the LAT did not give sufficient weight to his privacy concerns, but the court held the LAT was legally justified in dismissing the claim.

“Rule 3.4(a) of the tribunal’s rules provides that the tribunal can dismiss an application without a hearing if the proceeding is frivolous, vexatious or commenced in bad faith,” the Ontario Superior Court found. “The tribunal stated in the reconsideration decision that while [Bagherian] had not commenced the proceeding in bad faith, he had repeatedly demonstrated a pattern of bad faith conduct because of his repeated failure to submit to psychologists’ examinations….

“The record before the tribunal amply supported the conclusion that [Bagherian’s] conduct was an abuse of its process. He was given multiple opportunities to complete an [IME] with a psychologist and each time, he raised issues with the consent form, threatened to report the psychologist to the College, and threatened civil action. The tribunal concluded that his conduct was frustrating the [IME] process.”

As for Bagherian’s privacy concerns, they did not trump the LAT’s authority to end the claim, the Superior Court ruled.

“While [Bagherian] asserts that he has rights under various statutes regulating privacy that led him to question the proposed consent forms, [LAT] vice chair Hunter had the authority to require that [Bagherian] cooperate by signing a consent form for the IE.”

Feature photo courtesy of iStock.com/tommaso79