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The Ontario Superior Court of Justice recently released a decision[1] which held that accident benefits insurers must provide reasons when requesting an examination under oath, pursuant to s. 33(2) of the Statutory Accident Benefits Schedule (“SABS”).

During an examination under oath, an insured person who is claiming accident benefits (“a claimant”) is questioned by an insurance company representative, in the presence of a court reporter.

In this case, the insurer argued that a reason is not required to compel a claimant to attend an examination under oath.  However, s. 33(4) of the SABS clearly states that an insurer must give the claimant advance notice, including “a reason or reasons” for the proposed examination under oath.

The insurer’s position was that it had the right to examinations under oath, and that the requirement that an insurer provide a reason was a “mere matter of form” that was satisfied by “general references to the purpose and/or scope of the examination, such as the insurer simply indicating that the examination is requested to evaluate the insured’s entitlement to statutory accident benefits”.[2]

Justice Matheson disagreed. He found that the insurer was required to provide a reason or reasons for requesting an examination under oath, before proceeding with an examination. He further found that the insurer in this case had not satisfied that requirement, as it had not disclosed why it required an examination. It had only vaguely referred to the purpose and scope of the examination. Justice Matheson concluded that the requirement is “not satisfied by a general statement that the examination will be about entitlement to statutory accident benefits or a general reference to the purpose and/or scope of the examination”.[3]

[1] Aviva v. McKeown, 2016 ONSC 6017.

[2] Ibid at para 4.

[3] Ibid at para 79.

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