Compelling Attendance at an Examination Under Oath Requires Proper Notice


State Farm Mutual Automobile Insurance Company v Aslan et al., 2016 ONSC 2725

In this case, State Farm sought an order to compel each respondent to attend an examination under oath (examination) pursuant to section 33 of the Statutory Accident Benefits Schedule – O. Reg 34/10 (Schedule). At issue was whether State Farm had provided the respondents with proper notice of the examinations pursuant to section 33(4) and more specifically, whether the requisite “reason or reasons for the examination” were provided.

The seven respondents were each injured in separate motor vehicle accidents occurring in Ontario between 2011 and 2013. In March of 2015, State Farm began an investigation of the claims made by the respondents for attendant care benefits.  As is permitted by section 33 of the Schedule, State Farm decided to conduct an examination of each of the respondents in order to answer questions relevant to these benefits. However, the respondents’ counsel advised State Farm that they would not attend the examinations because State Farm did not provide them with the “reason or reasons for the examination” as required by section 33(4)3 of the Schedule. Regarding the reason or reasons for the examination, State Farm said the following in its letter to each respondent: “We are requesting the examination for the purpose of determining whether State Farm is liable to pay benefits.”

The Court held that State Farm never provided the respondents with proper advance notice of the “reason or reasons for the examination” and as a result, the respondents are not required to attend for examination unless they receive such notice. Hackland J. found that the advance notice of reasons to be given to the insured under section 33(4) of the Schedule are not satisfied by simply stating that the examination will relate to the insured’s entitlement to accidents benefits. The reasons must be something more specific than determining entitlement to benefits.

According to the Court, section 33(4)3 of the Schedule requires State Farm to advise the respondents that the reason for the examination is to review the claims submitted for attendant care. This would allow the insured and his or her counsel to come better prepared to the examination. It may also permit the insured and his or her counsel or physician to better assess whether the examination would attract a capacity issue under section 33(2)(b) of the Schedule.

State Farm’s application for an order to compel the respondents to attend an examination was dismissed. If State Farm serves proper notice that includes the reason or reasons for the proposed examination in the future, the respondents will have to attend unless they are incapable due to their physical, mental or psychological condition pursuant to section 33(2)(b) of the Schedule.

What the Insurer Should Know

The insurer must enunciate a reason for an examination under oath for accident benefits.  The reason must be more specific than simply for the purposes of determining entitlement to the benefit.

Mitch Kitagawa Kentt Coburn