Canada: Terminated Accident Benefits And Examinations Under Oath - What Questions Are Allowed?

In Singh and State Farm Mutual Automobile Insurance Company (FSCO A12-007594), Arbitrator Bayefsky considered whether the Applicant failed to attend an Examination Under Oath (EUO) and the consequences of same.

The Applicant was involved in a motor vehicle accident in May 2010.  She received income replacement benefits until November 2011 and housekeeping benefits until January 2012.  In August 2012, the Insurer advised that they required her to attend an EUO.  While the Applicant attended the EUO, she refused to answer questions relating to income replacement benefits and housekeeping benefits on the ground that the Insurer had initially paid her these benefits and was thereby precluded from requiring her to attend an EUO.

Pursuant to Section 35(3) of the Statutory Accident Benefits Schedule, there were three actions that could be taken by an Insurer upon receiving an Application and a completed Disability Certificate.  They could pay the specified benefit, request an EUO "or" require the Insured to undergo a medical examination.  The Arbitrator found that this section did not restrict or diminish the Insurer's general and ongoing option of requiring an Insured to attend an EUO pursuant to Section 33.  Arbitrator Bayefsky found that Section 35(3) did not preclude an Insurer from requesting an EUO where it initially paid benefits in response to an Application for Benefits, particularly where the Insurer subsequently terminated benefits and requested an EUO.  The Arbitrator found that to interpret the provision otherwise would lead to an absurd result that once an Insurer had chosen to do one of the three options under Section 35(3), it could do nothing else in relation to the claim.  Accordingly, there was no reason for the Insurer not to request the EUO.  The Insured was required to attend.

This decision is of assistance to Insurers seeking to examine Claimants following the termination of benefits. In the past some Claimant Counsel have refused to permit their client to answer questions on benefits which have been terminated. This decision clarifies that such refusals are inappropriate and questions can be asked.

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