Aviva Insurance Company of Canada v. McKeown, 2017 ONCA 563

The Court of Appeal held that Section 33(4)3 of the Statutory Accident Benefits Schedule does not require an insurer to give a specific reason for requesting an Examination under Oath of the claimant.

Date Heard: April 26, 2017 | Full Decision [PDF]

Section 33(4) of the Statutory Accident Benefits Schedule provides:

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.

In Aviva Insurance v. McKeown, the notices at issue listed boilerplate reasons for the Examination under Oath (EUO), including “evaluation of your potential entitlement”, and referenced benefits that were not applicable (e.g. Death and Funeral Benefits). The claimant objected to the EUO, requesting specific reasons. Aviva argued that it had a right to an EUO and for tactical and practical reasons, only general reasons needed to be given.

The applications judge, Matheson J., held that a specific justification was required to compel a claimant to attend a EUO and found that the notices did not meet the requirement. Matheson J. held that providing a specific reason or justification for the EUO was in keeping with the insurer’s obligation of good faith and prevented the system from becoming more adversarial and inefficient.

The Ontario Court of Appeal disagreed, interpreting the words “reason or reasons” in their entire context and in their grammatical and ordinary sense, together with the purpose of the Insurance Act and the intention of the legislature. With this approach, the Court of Appeal concluded that s. 33(4)3 does not require an insurer to include in its notice a justification for an EUO, but that a “general statement of the purpose of the EUO that gives the applicant notice of the general type of questions that will be asked is sufficient” (paragraph 75). With respect to concerns that the EUO process could be abused by insurers, the Court noted that an applicant could refuse to attend an EUO that they believed to be needless, have their benefits suspended, and proceed to arbitration.

Read the full decision [PDF]
Gillian Mays
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Gillian attained an Honours Bachelor of Arts degree in English Literature from Queen’s University in 2011, receiving the Roscoe R. Miller Award and the Arts 1915 Price for academic excellence. She received her Juris Doctor from Western University in 2014 and was placed on the Dean’s Honour List.

Prior to joining Bogoroch & Associates LLP, Gillian articled at a full-service firm in London, and was called to the Bar in 2015. She has been published in The Advocates’ Journal and participated in the Gale Cup Moot, and is a member of the Canadian Bar Association, The Advocates’ Society, and the Ontario Trial Lawyers Association.