Jurisdictional Limits Clarified: The LAT Cannot Compel EUO Attendance
Full Decision
In Fang Fei Ning v. Security National Insurance Company (LAT File No. 25-012036/AABS), the Licence Appeal Tribunal (LAT) has clarified an increasingly litigated issue: whether it has jurisdiction to compel attendance at an Examination Under Oath (EUO) under s. 33 of the Statutory Accident Benefits Schedule (SABS).
Background Context
Following a case conference — and with a multi-day catastrophic impairment (CAT) hearing scheduled — the insurer requested that the applicant attend an EUO, prior to the deadline for the exchange of documents. No prior EUO had been conducted. The applicant agreed to attend, but only after her counsel’s return from maternity leave in June 2026. That was not acceptable to the insurer. The insurer then moved for:
- An order compelling attendance prior to the document exchange deadline;
- Alternatively, a stay of the proceeding pending completion of the EUO; and
- Costs.
The LAT denied the motion in its entirety.
EUO requests are increasingly being advanced at advanced stages of a claim — often after the case conference has framed the issues and on the eve of the scheduled hearing — and frequently in matters where policy limits have been exhausted and no further benefits are payable pending adjudication.
Jurisdiction
The LAT accepted two foundational propositions:
- Section 33 of the SABS grants insurers a statutory right to request an EUO;
- An insured person has a corresponding obligation to attend.
However, while undisputably s. 33(2) creates an obligation, s. 33(6) expressly provides the consequence for non-compliance: the insurer is not liable to pay benefits during any period of failure to comply.
The adjudicator held that this statutory consequence is the enforcement mechanism chosen by the legislature. Neither the SABS, the Insurance Act nor the Statutory Powers Procedure Act confers jurisdiction on the LAT to issue a mandatory order compelling attendance.
The existence of a statutory duty does not create remedial jurisdiction of the LAT.
Distinguishing McKeown
The insurer relied on Aviva Insurance Company of Canada v. McKeown, in which the court granted an order compelling attendance at an EUO.
The LAT accepted that McKeown confirms the insurer’s statutory right to request an EUO and to suspend benefits for non-attendance. However, it distinguished the case on jurisdictional grounds: McKeown was a Superior Court application. It did not address, nor determine, the scope of the LAT’s remedial authority.
The decision reinforces a basic administrative law principle: tribunals possess only those powers expressly or necessarily implied by statute.
No Stay to Facilitate Investigative Processes
The alternative request for a stay was also denied.
The LAT held that a stay would suspend the applicant’s access to adjudication pending completion of an investigative step that already carries a statutory remedy. Where the statute provides its own enforcement mechanism (suspension of benefits), a stay is neither necessary nor proportionate.
The reasoning underscores an important conceptual distinction:
“An EUO is a claims-handling tool, not part of the Tribunal’s adjudicative procedure”
Key Takeaways
- Statutory right preserved: Insurers retain their statutory right to request an EUO under s. 33
- Non-attendance engages s. 33(6) — suspension of benefits during the period of non-compliance
- The LAT lacks jurisdiction to compel attendance at an EUO
- The LAT will not stay proceedings merely to facilitate completion of an insurer investigation where the SABS prescribes its own consequence
