The Court of Appeal has determined that an Insurer is not required to provide a justification for its request that a claimant attend an examination under oath under section 33 of the SABS.
In Aviva Insurance Company of Canada v. McKeown et. al., Aviva requested that six claimants attend EUOs. The claimants denied Aviva’s request and demanded that Aviva provide a “reason” in the sense of a “justification” for its request that they attend EUOs. Aviva brought an application in the Superior Court for a declaration that a justification was not required to compel a claimant to attend an EUO.
The application judge dismissed the application and found that an Insurer must provide a “justification” to compel a claimant to attend an EUO. Aviva appealed.
Ultimately, the Ontario Court of Appeal found that a “justification” is not necessary. Justice Juriansz found that the object of the Act and the intention of the legislature leads to the conclusion that section 33(4)3 does not require an Insurer to include in its notice to a claimant a justification for its request to attend an EUO. Justice Juriansz endorsed that the legislative objectives in creating the EUO were to reduce insurance costs, address fraud and increase accountability within the system, and rejected the application judge’s reasoning that the use of EUOs might result in an increase in the overall costs of the system. Furthermore, requiring Insurers to provide justification for EUOs was noted to be not in keeping with the non-adversarial process intended by the legislature.
Reviewing section 33(4)3 in the context of the scheme of the Act and the regulations, the Court also noted the following in favour of a “no justification” approach to EUOs:
- Requiring an Insurer to provide a “justification” in its request for an EUO is not in keeping with the cooperative approach to information sharing throughout the SABS;
- Other provisions (including section 44, which allows Insurers to require a claimant be examined by a health professional) require requests by insurers to be “reasonably necessary, which is in contrast to section 33;
- The requirement to provide notice of the “reason or reasons for the examination” is included in section 33(4) and is not included as one of the qualifications in section 33(2);
- There is no redundancy between the requirement for reasons under section 33(4)3 and the scope of examination under section 33(4)4;
- Reading an additional requirement to provide notice of justification is not necessary to promote fairness in the scheme which already addresses potential abuse of EUOs by Insurers; and
- FSCO has not interpreted the provision to require notice of a “justification” for an EUO.