Aviva Insurance Company of Canada v. McKeown, 2016 ONSC 6017 (CanLII)
SABS insurers must provide a specific reason for an EUO request before being entitled to it.
Released September 26, 2016 | Full Decision [CanLII]
This application was brought by Aviva as a test case on the issue of whether a justification is required to compel an insured to attend an examination under oath (“EUO”) if the insurer requests one pursuant to subsection 33(2) of the Statutory Accident Benefits Schedule (“SABS”). This application named six SABS claimants as respondents, arising from five different motor vehicle accidents. At the core of the application is the requirement in s. 33(4) of the SABS that the insurer give the insured advance notice, including “a reason or reasons” for the EUO.
Generally speaking, Aviva’s correspondences/notices of examination stated that the purpose of the EUO was to evaluate the insured’s entitlement to specified benefits, listing various potential benefits. Aviva took the position that it has the right to an EUO and that the notice requirement is merely a matter of form which is satisfied by general references to the purpose and/or scope of the examinations.
Matheson J. disagreed with Aviva’s position, noting that the notice requirement was a mandatory statutory requirement and would not be satisfied by a general statement that the examination will be about entitlement to benefits. Matheson J. said that the ordinary meaning of “reason” is why the EUO was being pursued and that the requirement to give a meaningful reason is in keeping with the insurer’s obligation of good faith. Matheson J. concluded that Aviva’s notices were not compliant with s.33.
For one of the claimants, Aviva’s counsel indicated that the EUO related to s. 33 non-compliance in addition to the insured’s entitlement to SABS. Matheson J. noted that it was not clear that s. 33 non-compliance would be a reason for an EUO, as s. 33 expressly provides for the consequences of a failure to comply with requests for information. Matheson J. declared that a justification is required to compel a SABS claimant to attend an EUO under s. 33 of the SABS, specifically a reason or reasons must be disclosed under s. 33(4)3 of the SABS, and therefore the respondents were not required to attend.
This post originally appeared on Ontario Trial Lawyers Association Blog on October 21, 2016.