ONCA: Justification Is NOT Required For EUO Request

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...