Is an insurer's right to request or conduct an
Examination Under Oath limited to the 10 day time period described
in Section 36(4) and Section 33 (1) of the SABS?
FSCO was required to revisit the issue in a preliminary decision
of Choeun ats Allstate issued by Arbitrator Janette Mills
on March 14, 2016. In her decision the Arbitrator reaffirmed the
principle that no such time limit can be imposed on an
insurer's request for an Examination Under Oath.
The decision serves as a useful reminder of the broad rights
afforded to insurers in conducting the fact-finding exercise of an
Examination Under Oath.
The applicant had been involved in an accident on September 6,
2013. The insurer terminated Income Replacement Benefits on or
about January 31, 2014 based on IME reports. On April 17, 2015 the
insurer requested an Examination Under Oath due to confusion
surrounding when items were submitted to the Insurer. An
arbitration was set to commence on January 25, 2016.
The applicant's counsel took the position that the insurer
was "statute-barred" from completing an Examination Under
Oath. According to this theory the insurer was required to request
the Examination Under Oath within the"10 business days"
referred to in Section 33 and Section 36(4).
This reading of the law was rejected.
By way of background, Section 33(1) requires an insured to
provide an insurer with requested information to determine
eligibility for accident benefits within "10 business
days" of a request. Section 36(4) provides that an insurer has
"10 business days" after receipt of an application to
request information under Section 33.
While noting that the 10 day time limit in section 36(4) has
been the subject of debate, the arbitrator noted that pursuant to
previous decisions, the time limit applied to the "limited
circumstances" at the beginning of the adjustment of a
specified benefit, and "does not preclude an insurer from
paying the claim and then later requesting an Examination Under
Arbitrator Mills explained that section 36(4) "does not
restrict or diminish the insurer's general and ongoing option
of requiring an insured to attend an Examination Under Oath
pursuant to Section 33." A request for an Examination under
Oath "is pertinent to the insured's continuing entitlement
to benefits and not just the initial entitlement to
This reaffirmation of an insurer's right to conduct an
Examination Under Oath will be welcomed by those who meet similar
obstacles in their attempts to conduct this fact-finding
If carried to its logical conclusion, the applicant's
position would have resulted in an absurd outcome from an
insurer's perspective. Acceptance of the applicant's view
would have implied a time limit of 10 days after receipt of an
application for benefits to request an Examination Under Oath, a
deadline that is arguably impractical and unfair to insurers.
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