What is an Examination Under Oath?

In this blog, I’ll be discussing what an Examination Under Oath (EUO) is, as well as, amongst other things, whether you have to attend it, whether the insurer has to provide you with a justification for it, what are the procedural requirements that the insurer has to meet, and what are the consequences of non-attendance.

An EUO is an investigative tool. It is the formal questioning of an insured who submitted an application for accident benefits available under the Ontario Regulation 34/10: Statutory Accident Benefits Schedule (SABS 34/10) – a regulation under the Insurance Act, R.S.O. 1990, c. I.8 –, which is geared toward either (1) providing the insurer with additional information to facilitate its determination of whether you are entitled to the statutory accident benefits claimed or to their continuation, or (2) enables them to determine the priority between other insurers to adjust your claim. The right of your insurer to conduct an EUO is based in both legislation and in contract. It is the only opportunity for your insurer to obtain a sworn, detailed, unedited first-hand account of the incident and loss while committing you to a version of events of that loss. It is particularly useful when there is only an accident benefits claim, because it enables your insured to assess your credibility prior to any future mediation or arbitration. Usually, an insurer makes a request for an EUO, if upon reviewing your OCF-1: Application for Accident Benefits form, they have a legitimate suspicion of fraud or questionable circumstances, which they would like more clarity.  

If you want to learn more about the OCF-1: Application for Accident Benefits form, and how to kickstart the accident benefits application process, so you can begin to receive the accident benefits you need to start your journey toward reaching maximum medical recovery, then click this “link” to read my blog entitled “How to Get Your Accident Benefits Application Started”

If you want to know more about what to do immediately after you’re involved in a motor vehicle accident, just before you kickstart the Accident Benefits Application process, then click this “link” to read my blog entitled “What To Do After a Car Accident in Ontario?”

In this blog I’ll discuss the EUO pursuant to subsection 33(2) of the SABS 34/10, and then discuss the EUO pursuant to subsection 6(2) of the Ontario Regulations: Dispute Between Insurers – a regulation under the Insurance Act, supra. However, I’ll begin by providing some legislative history of the evolution of the EUO, in order for you to better understand the objective of an EUO.

What is the Objective of an Examination Under Oath?

The legislative objective of an EUO stems from the legislative concern of protecting consumers from rising insurance premiums, which was manifested by the passage of the Automobile Insurance Rate Stability Act, 1996, S.O. 1996, c. 21 and the Automobile Insurance Rate Stabilization Act, 2003, S.O. 2003, c. 9, and subsequent numerous amendments to them. Shortly after the Ontario government enacted the former legislation, it enacted regulations that introduced what is now subsection 33(1) of the SABS 34/10, which placed a positive obligation on you – the insured claimant – to provide to your insurer any information that they reasonably required to assist in determining your entitlement to statutory accident benefits, and, if requested, to furnish a statutory declaration. Soon after the introduction of subsection 33(1), the Ontario government attempted again to address the increase in insurance premiums with the enactment of Bill 198, or the Keeping the Promise for a Strong Economy Act, (Budget Measures), 2002, S.O. 2002, c. 22. This omnibus bill, which covered a number of diverse or unrelated topics, did introduce changes to Ontario’s automobile insurance system, which were primarily intended to realize cost savings within the auto insurance industry. One of the regulations that accompanied Bill 198 was Ontario Regulation 281/02, which introduced the EUO in section 12, and then was subsequently replaced as subsection 33(2) of the 2003 version of the SABS 34/10.

Furthermore, the Ontario government’s white paper entitled “Automobile Insurance Affordability Plan for Ontario: Next Steps” (Toronto: Ministry of Finance, July 2003), plus the debates in the Ontario legislature, and the Financial Services Commission of Ontario’s (FSCO) bulletins, collectively showed that the concern about fraud perpetrated by a small percentage of claimants and an abuse of the system were both significant factors in the aforementioned legislative changes. By way of an example, FSCO Bulletin No. A-10/03 identified the EUO as one of the measures intended to result in the “increase of accountability within the automobile insurance system and reduction of potential for abuse of the SABS process and occurrence of fraud”, which corresponded with what was said in the Ontario legislature when the aforementioned Bill 198 was being enacted.

Therefore, the three main prongs of the legislative objective in creating the EUO were to accomplish the following:

  1. Reduce insurance costs; 
  2. Address fraud; and 
  3. Increase accountability within the system.

Therefore, the Ontario legislature was concerned about the overall costs of the automobile insurance system, and as a result, it created the EUO as an additional mechanism in a major initiative to accomplish the objective of the quick and expeditious determination of statutory accident benefits claim, increasing accountability within the system, and ultimately, to control, or reduce, the overall costs of the regime.

How Many Different Kinds of Examinations Under Oath are there?

There a maximum of two EUOs that you may be obligated to attend, as follows:

  1. An EUO pertaining to your ascertaining whether you’re entitled to accident benefits; and
  2. An EUO pertaining to a private dispute between insurers over which insurer is responsible for responding to, and adjusting, your claim for accident benefits, which will revolve “around specific questions pertaining to liability (loss transfer), dependency, coverage, and other related inquiries” (33(9))

Examinations Under Oath Pursuant to Subsection 33(2) of the Ontario Regulations 34/10: Statutory Accident Benefits Schedule

Does the Insurer Have to Provide Reasons and a Justification for the Examination Under Oath?

The question of ‘whether an insurer has to provide reasons and a justification for the EUO’ was answered in the Court of Appeal for Ontario case entitled Aviva Insurance Company of Canada v. McKeown, 2017 ONCA 563 (CanLII), 2017 ONCA 563, 136 O.R. (3d) 385, where the appeal focused on the nature of the notice an insurer must give in order to exercise its statutory right to examine under oath an insured, who had claimed accident benefits under the SABS 34/10. Subsection 33(2) of the SABS 34/10 provides that you – an insured claiming accident benefits under the SABS 34/10 – “shall submit to an examination under oath” if requested by your insurer. Subsection 33(4)3 requires an insurer to give you reasonable advance notice of the “reason or reasons for the examination”, which obviously begs the question: What constitutes the provision of reasons sufficient to satisfy this requirement? This question was answered by the Court of Appeal for Ontario in this case.

In Aviva Insurance Company of Canada v. McKeown, supra, there were six insureds who demanded that Aviva Insurance Company of Canada (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 person claiming statutory accident benefits to attend at an EUO, as well as for an order compelling the six insureds to attend EUOs.

The application judge at the Superior Court level, however, dismissed Aviva’s application and then issued a declaration that an insurer must provide a “justification” to compel an insured claiming statutory accident benefits, to attend an EUO if the insurer requests one pursuant to subsection 33(2) of the SABS 34/10. The application judge then denied Aviva’s request for an order that each of the six insureds claiming for statutory accident benefits attend for an EUO.

Aviva appealed the ruling of the applicant judge to the Court of Appeal for Ontario, but only in respect of three of the six insureds to the application. The Court of Appeal for Ontario allowed the appeal, set aside the application judge’s declaration, and replaced it with the declaration that an insurer is not required to provide a justification for its request that the applicant attend an EUO. The Court of Appeal for Ontario also granted an order that each of the three insureds to the appeal attend an EUO. The text of section 33(4) reads as follows:

Section 33

(4) The insurer shall make reasonable efforts to schedule the examination under oath for a time and location that are convenient for the applicant and shall give the applicant reasonable advance notice of the following:

  1.   The date and location of the examination.
  2.   That the applicant is entitled to be represented in the manner described in subsection (3).
  3.   The reason or reasons for the examination.
  4.   That the scope of the examination will be limited to matters that are relevant to the applicant’s entitlement to benefits.

The Court of Appeal for Ontario ruled that the application judge’s interpretation of s. 33 was reviewable on a correctness standard. The Court of Appeal for Ontario ruled that while adopting the meaning “justification” for the word “reason”, the application judge erred in drawing unsupported inferences, employed extraneous considerations and failed to consider the entire legislative context of paragraph 3 of subsection 33(4) of the SABS 34/10.

The Court of Appeal for Ontario concluded that reading the words “reason or reasons” in their entire context, and in their grammatical and ordinary sense harmoniously with the scheme of the Insurance Act, supra, the object of the Insurance Act, supra, and the intention of the legislature, leads to the conclusion that paragraph 3 of subsection 33(4) does not require an insurer to include in its notice to an applicant a justification for its request that an insured claiming statutory accident benefits, attend an EUO.

Therefore, paragraph 3 of subsection 33(4) does not require an insurer to include in its notice of an EUO a justification for its decision to request an EUO for you to attend. A general statement of the purpose of the EUO that gives you notice of the general type of questions that will be asked is sufficient.

What Kind of General Statement of the Purpose of the Examination Under Oath would Suffice?

Further to the aforementioned Court of Appeal for Ontario case Aviva Insurance Company of Canada v. McKeown, supra, an example of a general statement of the purpose of the EUO that gives you notice of the general type of questions that will be asked, and is sufficient for the purpose of satisfying the requirements set out in paragraph 3 of subsection 33(4) of the SABS 34/10, is as follows:

An examination under oath is required in order to assist [name of insurance company], your insurer, in determining entitlement to specified benefits, [list benefits the insured may be entitled to: i.e.: income replacement benefits, medical and rehabilitation benefits, attendant care benefits, housekeeping and home maintenance expenses and costs of examination] arising from the loss of [date of motor vehicle accident]. The scope of the examination under oath will be limited to matters that are relevant to your entitlement to said benefits.

This notice is an example of one that satisfies the requirements of paragraph 3 of subsection 33(4) of the SABS 34/10.

There is a wide range of accident benefits that you may be entitled, which range from: income replacement benefits, non-earner and caregiver benefits, medical, rehabilitation and attendant care benefits, lost educational expenses, and expenses of visitors visiting an insured person during treatment or recovery, to housekeeping and home maintenance, damage to clothing, prescription eyewear, dentures, hearing aids, prostheses and other medical or dental devices, fees for preparing disability certificates and approving treatment plans, death and funeral benefits and certain optional benefits. Each of these different aforementioned accident benefits that are available to you under the SABS 34/10 may potentially require additional detailed information for your insurer to facilitate its determination of your entitlement to the statutory accident benefit, and the kind of specific pre-and-post accident information needed will ultimately depend on the type of benefit you’re specifically claiming. 

One of the prevailing themes of the procedures for claiming accident benefits that’s set out in various sections of the SABS 34/10, is that you – the insured – must cooperate with your insurer, so that your insurer has the information necessary to determine your entitlement to those accident benefits that you’re claiming. For example, pursuant to subsection 36(2) of the SABS 34/10, if you’re claiming an income benefit, such as income replacement, non-earner, or caregiver benefit, or payments for housekeeping and home maintenance services, then you must provide your insurer with an OCF-3: Disability Certificate, which is partially completed by one of your health practitioners, such as, but not limited to, a chiropractor, dentist, nurse practitioner, occupational therapist, optometrist, physician, physiotherapist, psychologist, speech language pathologist, et cetera.

What If I Receive a Section 33 Request for More Information, then How Much Time Do I Have to Answer the Questions?

In addition to an insurer requesting that you submit to an EUO pursuant to subsection 33(2) of the SABS 34/10, an insurer can also request additional information from you in writing pursuant to subsection 33(1) of the SABS 34/10, which reads as follows:

33(1) An applicant shall, within 10 business days after receiving a request from the insurer, provide the insurer with the following:

  1.   Any information reasonably required to assist the insurer in determining the applicant’s entitlement to a benefit.
  2.   A statutory declaration as to the circumstances that gave rise to the application for a benefit.
  3.   The number, street and municipality where the applicant ordinarily resides.
  4.   Proof of the applicant’s identity.

Therefore, if an insurer sends you an subsection 33(1) request for additional information in writing, in order to assist your insurer in determining your entitlement to accident benefits, you have to provide your insurer with that information within 10 days after receiving the formal request.

Do I Have to Attend an Examination Under Oath If I’m Physically, Mentally or Psychologically Incapable of Doing So?

There is a built-in qualification in paragraph (b) of subsection 33(2) of the SABS 34/10 that you are not required to submit to an EUO during a period where you are “incapable of being examined under oath because of” your “physical, mental or psychological condition”. So, for example, if as a direct result of your motor vehicle accident you sustained a catastrophic impairment that resulted in tetraplegia, which left you incapable of attending an EUO, then an insurer cannot take any action against you, such as suspending your accident benefits.

Can I have a Lawyer or other Representative Present at My Examination Under Oath?

Further to subsection 33(3) of the SABS 34/10, you are entitled to be represented – at your own expense – at your EUO by “such counsel or other representative” of your choice “as the law permits”. Therefore, an insurer cannot compel you to attend an EUO without any legal representative, such as a lawyer, by your side.

Does the Insurer Have to Schedule an Examination Under Oath at a Time and Place that is Convenient to Me?

Further to subsection 33(4), your insurer must make “reasonable efforts to schedule the examination under oath for a time and location that” is convenient to you, and they must give you reasonable advance notice of the following:

  1. The date and location of your EUO;
  2. That you are entitled to be represented in the manner described in the aforementioned subsection 33(3) of the SABS 34/10;
  3. The reason or reasons for your EUO, which doesn’t require a justification, but simply rather a general statement of the purpose of the EUO that gives you notice of the general type of questions that will be asked, is sufficient; and
  4. That the scope of your EUO will be limited to matters that are relevant to your entitlement to accident benefits.

The first  requirements in paragraphs 1 and 2 of subsection 33(4) are what may be described as procedural in nature.

What’s the Scope of the Examination Under Oath Pursuant to Subsection 33(2) of Ontario Regulations 34/10: Statutory Accident Benefits Schedule?

Further to subsection 33(5) of the SABS 34/10, your insurer shall limit the scope of your EUO to matters that are relevant to your entitlement to statutory accident benefits. So, for example, if you’re claiming a non-earner benefits (NEBs), where pursuant to section 12 you must “suffer a complete inability to carry on a normal life as a result of and within 104 weeks after the accident”, then pursuant to the leading case on NEBs entitled Heath v. Economical Mutual Insurance Co., [2009] O.J. 1877, 2009 ONCA 391 (Ont. C.A.), the scope of the EUO would include exploring your pre-and-post accident activities over a reasonable time frame and not simply a one-time snapshot, as well as ascertaining whether there are any collateral benefits that they can deduct from your NEBs, such as, but not limited to, Canadian Pension Plan Disability Benefits, or short-term or long-term disability benefits. 

If, for example, you were claiming income replacement benefits (IRBs) within 104 weeks of your accident, then the scope of your EUO would include determining the extent to which you’re substantially unable to perform the essential tasks of your employment, the jobs you were employed at within 52 weeks of your accident and the gross amount you earned in remuneration from these jobs, and whether you receive collateral benefits that they can deduct, such as, but not limited to, temporary disability benefits or other periodic benefits. If, however, you were claiming IRBs 104 weeks after your accident, where the test for determining entitlement changes, then the scope of your EUO would include exploring your work history and determining the extent to which you’re completely unable to engage in any employment for which you are reasonably suited by reason of education, training or experience, as well as ascertaining whether there are any collateral benefits that they can deduct from your IRBs. 

Therefore, a part of the scope of the EUO, which is used to acquire additional detailed information for your insurer to facilitate its determination of your entitlement to statutory accident benefits, will vary depending on the type of accident benefit you’re specifically claiming, and the criteria to be met in order to be eligible to receive them.

In the case entitled Aviva Insurance Company of Canada v. Balvers, 2007 CanLII 17193 (ON SC), one of the legal issues addressed was whether the provisions of subsection 33(1.1) of the SABS 34/10, required the insured claimant to submit to an EUO and answer questions within the scope of those which were asked of him by the counsel for the insurer. As the Honourable Stewart J. addressed this question, he commented on the scope and relevance of questions to be permitted at an EUO, at paragraphs 16 and 19, as follows:

[16] In my view, the scope and relevance of questions to be permitted on an examination under oath is to be determined with reference to the language and purpose of the Schedule, and not on the narrow basis of information provided by the claimant or of the benefits claimed by the claimant as of the date of the examination (see: Silverhill Realty Holdings Ltd. v. Ontario (Minister of Highways), 1966 CanLII 177 (ON SC), [1967] 1 O.R. 357 (Ont. C.A.)).

and

[19] If the purpose of the swift payment of no-fault benefits under the Schedule is to be furthered, I consider that fairly full disclosure by a claimant must be made if benefits are to be assessed and received. This is particularly so in light of the fact that the insurer may conduct only one such examination, and its scope is described in fairly broad terms (see: Balanki v. Zurich Insurance CO., FSCO A04-002286, April 11, 2005, 2005 Carswell Ont. 2670 (F.S.C.O. Arb.). 

Therefore, the scope of relevant questions isn’t solely determined on the narrow basis of the specific statutory accident benefits you’re claiming and the specific criteria that must be met for you to be entitled to them, but it is rather determined on the broader basis of reference to the language and purpose of the SABS 34/10. This makes sense, especially in light of the fact that your insurer is only allowed to conduct one such EUO – one kick at the can – for the purpose of gathering additional detailed information to facilitate its determination of your entitlement to statutory accident benefits. So, if an insurer was restricted to asking questions solely in relation to the specific accident benefits you’re claiming at the moment, then if after the EUO you claimed another statutory accident benefit, they would be unable to gather additional information from another EUO.

In the case Echelon General Insurance Company v. Henry, 2011 ONSC 3673 (CanLII), where the insurer applied to the court for relief, seeking a declaration that the claimant failed to attend an EUO pursuant to subsection 33(1.1) of the SABS 34/10, and an order requiring the claimant to re-attend an EUO, at paragraph 9 the Honourable Corrick J. echoed the Honourable Stewart J. in Aviva Insurance Company of Canada v. Balvers, supra, concerning the following: “The scope and relevance of questions to be permitted on an examination under oath is to be determined with reference to the language and purpose of the Schedule”.  The Honourable Corrick J. commented on the language of section 33 of the SABS 34/10 being broad at paragraphs 6, 7, and 8, as follows:

[6] The language of s. 33 is quite broad. Section 33(1.1) does not limit the insurer to examining a person who is receiving benefits under oath. It permits an insurer to examine a person who applies for benefits, whether that person is receiving benefits or not…

[7] Similarly, section 33(1.4) permits an insurer to examine on matters that are relevant to the person’s entitlement to benefits. It does not limit the examination to whether a person is entitled to benefits, but is broader than that.

[8] Given that an insured person is entitled to receive statutory accident benefits from only one insurer, it is relevant to Ms. Henry’s entitlement to benefits from Echelon whether she has applied for and received benefits from State Farm in respect of the same accident. This is relevant, in my view, irrespective of any alleged wilful misrepresentation in the application for benefits.

Therefore, the language of section 33 of the SABS 34/10, is broad and imposes no limit on the scope of the examination under oath, as long as it pertains to matters relevant to your entitlement to statutory accident benefits. In Echelon General Insurance Company v. Henry, supra, this even included the right of the insurer to ask questions to determine the claimant’s entitlement to past benefits: Aviva Insurance Company of Canada v. Balvers, supra.

If I Don’t Attend the Examination Under Oath, does the Insurer Still Have to Pay My Benefit?

If you don’t attend, or submit to, an EUO pursuant to subsection 33(2) of the SABS 34/0, or you fail to respond to a written request for additional information pursuant to section 33(1) within 10 days, and you don’t have a legitimate reason not to attend, such as a reason pursuant to paragraph (b) of subsection 33(2) of the SABS 34/10, then pursuant to subsection 33(6), your insurer is “not liable to pay a benefit in respect of any period during which” you fail to comply. However, subsection 33(6) doesn’t apply in respect to non-compliance with attending an EUO, if your insurer fails to comply with the following:

  1. Subection 33(4) – Your insurer fails to make reasonable efforts to schedule the EUO for a time and location that is convenient for you, and fails to give you reasonable advance notice of the following:
    1. The date and location of you EUO;
    2. That you are entitled to be represented – at your own expense – at your EUO, by such counsel or other representative of your choice as the law permits;
    3. The reason or reasons for your EUO, which doesn’t require a justification, but simply rather a general statement of the purpose of the EUO that gives you notice of the general type of questions that will be asked, is sufficient; and
    4. That the scope of your EUO will be limited to matters that are relevant to your entitlement to statutory accident benefits.

Lastly, further to subsection 33(8), if you subsequently comply with the request to either submit to the EUO [subsection 33(2)] or satisfy the written request for additional information [subsection 33(1)], then your insurer shall resume payment of the accident benefit that was being paid. If you had a reasonable explanation for the delay in complying with the request, such as the reason pursuant to paragraph (b) of subsection 33(2) of the SABS 34/10 (incapable due to physical, mental and/or psychological impairments), then your insurer shall pay all of the amounts that were withheld during your period of non-compliance.

If I Don’t Attend the Examination Under Oath, then Can I Still Proceed to Arbitration?

If the payment of your accident benefits are suspended as a consequence of non-compliance with subsection 33(2), or failing to attend your EUO, then you can still claim the benefits at arbitration before the Licence Appeals Tribunal, which was confirmed by the Court of Appeal for Ontario in Aviva Insurance Company of Canada v. McKeown, supra. This was also confirmed in the following FSCO decisions: Salah v. State Farm Mutual Automobile Insurance Co., 2005 CarswellOnt 8338 (F.S.C.O. Arb.) and Balanki v. Zurich Insurance Co., 2005 CarswellOnt 2670 (F.S.C.O. Arb.).

What Can I Do if the Insurer Doesn’t Act in Good Faith and its Examination Under Oath Doesn’t Comply with the Requirements Under the Insurance Act?

If an insurer doesn’t comply with the aforementioned requirements of s. 33 of the SABS 34/10, as well as the Insurance Act, supra, then you can allege that your insurer lacks good faith in processing your statutory accident benefits claim in a manner that is prescribed by the legislature. Remember that your insurer has a duty to act in good faith, which applies throughout its processing of your application for statutory accident benefits. Furthermore, your insurer’s practices are subject to the general supervision by the Chief Executive Office of the Financial Services Regulatory Authority of Ontario (FSRAO): Financial Services Regulatory Authority of Ontario Act, 2016, S.O. 2016, c. 37, Sched. 8, s. 6. Among the Chief Executive Officer’s broad powers in respect to the administration and enforcement of the Insurance Act, supra, is the power to investigate and sanction any conduct or behaviour of your insurer deemed to constitute an “unfair or deceptive act and practice” in accordance with section 440 of the Insurance Act, supra., which reads as follows:

PART XVIII

UNFAIR OR DECEPTIVE ACTS OR PRACTICES

Chief Executive Officer may investigate

440 (1) The Chief Executive Officer may examine and investigate the affairs of every person engaged in the business of insurance in Ontario in order to determine whether such person has been, or is, engaged in any unfair or deceptive act or practice.  R.S.O. 1990, c. I.8, s. 440; 2018, c. 8, Sched. 13, s. 22.

Unfair or deceptive acts and practices committed by your insurer are proscribed by section 439 of the Insurance Act, supra, which reads as follows:

Unfair or deceptive acts, etc., prohibited

439 No person shall engage in any unfair or deceptive act or practice.  R.S.O. 1990, c. I.8, s. 439.

As a matter of fact, the Ontario Regulation 7/00: Unfair or Deceptive Acts or Practices, under the Insurance Act, supra, sets out a list of those proscribed unfair or deceptive acts or practices, where, amongst other things, it specifically includes paragraph 13 of section, which reads as follows: “Any examination or purported examination under oath that does not comply with the requirements under the Act or the regulations.  O. Reg. 7/00, s. 1; O. Reg. 278/03, s. 1; O. Reg. 128/19, s. 2.

Therefore, proceeding with an allegation of unfair or deceptive act or practice against your insurer and bringing it to the attention of the Chief Executive Officer of FSRAO to investigate, is – at the moment – the legislated route to address non-compliant EUOs.

How Many Times Do I Have to Go to an Examination Under Oath?

How Many Times Do I Have to Go to an Examination Under Oath?

Again, further to subsection 33(2) of the SABS 34/10, if requested by your insurer, you have to submit to an EUO, however, further to paragraph (a) of subsection 33(2), you don’t have “to submit to more than one examination under oath in respect of matters relating to the same accident”. However, the built-in qualification into paragraph (a) of subsection 33(2) of the SABS 34/10 that you are not required to submit to more than one EUO, is only applicable to one EUA in respect of the same purpose. You have to also be aware of subsection 33(9) of the SABS 34/10, which reads as follows:

Section 33

(9) Clause (2)(a) shall not be interpreted as prohibiting an additional examination of the applicant under oath, under Ontario Regulation 283/95 (Disputes Between Insurers) made under the Act, at the insurer’s request that is conducted for the purpose of determining who is liable under section 268 of the Act to pay statutory accident benefits in respect of the accident.

Therefore, if you submitted to one EUO for the purpose of determining your entitlement to statutory accident benefits pursuant to subsection 33(2) of the SABS 34/10, then you cannot be submitted to a second EUO for the same purpose and pursuant to the same section. However, this doesn’t preclude your insurer from requesting you to submit to an EUO for a different purpose. Since your insurer can also request you to submit to an EUO pursuant to subsection 6(2) of the Ontario Regulation 283/95 (Disputes Between Insurers) for the purpose of determining which insurer is liable under section 268 of the Insurance Act, supra, to pay your statutory accident benefits in respect of your motor vehicle accident, they can submit you to a second EUO for this second purpose. However, once you’ve submitted to an EUO for this second purpose pursuant to subsection 6(2), then you’re not required to submit to a second subsection 6(2) EUO.

Examinations Under Oath Pursuant to Subsection 6(2) of the Ontario Regulations 283/95: Disputes Between Insurers

What is an Examination Under Oath Pursuant to Subsection 6(2) of O. Reg. 283/95: Disputes Between Insurers?

In addition to subsection 33(2) of the SABS 34/10, which provides that you – an insured claiming accident benefits – “shall submit to an examination under oath” if requested by your insurer, pursuant to subsection 6(2) of the Ontario Regulation 283/95: Disputes Between Insurers (O. Reg. 283/95), under the Insurance Act, supra, you “shall submit to one examination under oath for the purpose of determining who is required to pay benefits under section 268 of the Act”. Unlike the EUO under subsection 33(2) of the SABS 34/10, which is geared toward providing your insurer with additional detailed information to facilitate its determination of your entitlement to statutory accident benefits, the EUO under subsection 6(2) of the O. Reg. 283/95 is geared toward providing your insurer with all of the relevant detailed information needed to facilitate its determination of which insurer is required to pay you accidents benefits under section 268 of the Insurance Act, supra.

This situation occurs where you may have access to statutory accident benefits from more than one insurer, and the automobile insurance companies have to determine which one has a higher priority to adjust your claim for statutory accident benefits. The first insurer who you submit an OCF-1: Application for Accident Benefits form to, must commence adjusting your claim, and cannot stop doing so, even while the priority dispute is being resolved. Further to subsection 6(2) of the O. Reg. 283/95, only the first insurer who you submitted the OCF-1: Application for Accident Benefits form to, is allowed to require you to submit to an EUO for the purpose of determining who is required to pay benefits under section 268 of the Insurance Act, supra.

What is the Scope of the Examination Under Oath Pursuant to Subsection 6(2) of Ontario Regulation 283/95: Disputes Between Insurers?

Further to subsection 6(5) of the O. Reg. 283/95, the scope of the EUO is “limited to matters that are relevant to determining who is required to pay benefits under section 268 of the Act”.

Further to the aforementioned case entitled Aviva Insurance Company of Canada v. Balvers, supra, “The scope and relevance of questions to be permitted on an examination under oath is to be determined with reference to the language and purpose of the Schedule”. However, the kind of questions that you can expect at an EUO pursuant to subsection 6(2) of the O. Reg. 283/95 will revolve around, but are not limited to, the following:

  • The history of your family or relationship status;
  • Your present and prior places of residence, as well who you lived with and their respective dates of birth; 
  • Your employment and education history; 
  • The history of you past insurance claims; and 
  • Any recent criminal convictions.

This is not an exhaustive list.

Can I have a Lawyer or other Representative Present at My Examination Under Oath Pursuant to Subsection 6(2) of Ontario Regulation 283/95: Disputes Between Insurers?

Further to subsection 6(5) of the SABS 34/10, you are entitled to be represented – at your own expense – at your EUO by “such counsel or other representative” of your choice “as the law permits”. Therefore, an insurer cannot compel you to attend an EUO without any legal representative, such as a lawyer, by your side.

Does the Insurer Have to Schedule an Examination Under Oath at a Time and Place that is Convenient to Me?

Further to subsection 6(6), your insurer must make “reasonable efforts to schedule the examination under oath for a time and location that” is convenient to you, and they must give you reasonable advance notice of the following:

  1. The date and location of your EUO;
  2. That you are entitled to be represented in the manner described in subsection 6(5) of the SABS 34/10;
  3. The reason for your EUO, which doesn’t require a justification, but simply rather a general statement of the purpose of the EUO that gives you notice of the general type of questions that will be asked, is sufficient; and
  4. That the scope of your EUO will be limited to matters that are relevant to your insurer determining which insurer is required to pay you statutory accident benefits under section 268 of the Insurance Act, supra.

The first  requirements paragraphs 1 and 2 of subsection 6(6) are what may be described as procedural in nature.

What Happens if the Insurers Cannot Agree As to Who Is Required to Pay Me My Accident Benefits?

Pursuant to subsection 7.(1) of the O. Reg 283/95, if the insurers cannot agree as to who is required to pay your statutory accident benefits, then “the dispute shall be resolved through an arbitration under the Arbitration Act, 1991”, which is “initiated by the insurer paying benefits under … or any other insurer against whom the obligation to pay benefits is claimed”.

How Much Time Does An Insurer Have to Initiate the Arbitration If the Insurers Cannot Agree As to Who Is Required to Pay Me My Accident Benefits?

Further to subsection 7(3) of the O. Reg. 283/95, the insurer must initiate the arbitration “no later than one year after the day the insurer paying benefits first gives notice” pursuant to subsection 6(3). However, in accordance with subsection 7(4) of the O. Reg. 283/95, “the arbitration may be initiated by the Fund at any time before or after the expiry of the time limit … if the Fund is paying benefits in respect of an accident that occurred on or after September 1, 2010”. The Fund is the Motor Vehicle Accident Claims Fund, continued under subsection 2(1) of the Motor Vehicle Accident Claims Act, R.S.O. 1990, c. M.41.

Also, you – as the insured person – can also initiate the arbitration, unless pursuant to subsection 7(5) “the insurer paying benefits is the Fund”.

Lastly, further to subsection 7(6) of the O. Reg. 283/95, if the dispute relates to a motor vehicle accident that occurred on or after September 1, 2010, then the failure of your insurer – other than the Fund – to comply with section 2.1, concerning promptly providing an application and any other appropriate forms to you, or section 3.1, concerning the requirements for giving a notice to the Fund, may result in a special award made by the arbitrator.

Conclusion

Therefore, in conclusion, your insurer could subject you to submit to two EUOs. One EUO is pursuant to subsection 33(2) of the SABS 34/10, which is designed to provide your insurer with additional detailed information to facilitate its determination of your entitlement to statutory accident benefits under section 268 of the Insurance Act, supra. The other EUO is pursuant to subsection 6(2) of the O. Reg. 283/95, which is designed to provide additional information to your insurer to facilitate the determination of which insurer is required to pay you statutory accident benefits under section 268 of the Insurance Act, supra. If the insurers cannot agree as to who is required to pay your statutory accident benefits, then the dispute will be resolved through an arbitration, however, the first insurer who you submitted an OCF-1: Application for Accident Benefits form to, must continue adjusting your claim, and cannot stop doing so, even while the priority dispute is being resolved.

Your insurer is only allowed to subject you to submit to the two aforementioned EUOs only once each. If an insurer doesn’t comply with the aforementioned requirements of s. 33 of the SABS 34/10, as well as the Insurance Act, supra, then you can proceed with an allegation of unfair or deceptive act or practice against your insurer, and bring it to the attention of the Chief Executive Officer of FSRAO to investigate, which at the moment, is the legislated route to address non-compliant EUOs.

I hope you found this information valuable. Rudder Law Group’s website is your one-stop source for answers to all of your legal questions concerning catastrophic impairment law and personal injury law.