A test application was brought before the court on the issue of
"whether a justification is required" to compel a person
(in this case, six claimants from five accidents, all represented
by the same counsel) to attend an Examination under Oath pursuant
to s. 33(2) of the SABS. The insurer also sought to compel the
attendance of the claimants. The core of the issue was s. 33(4)
requiring that insurers give advance notice including "a
reason or reasons" for the examination.
The evidence in support of the application was a lawyer's
affidavit which simply stated that the insurer determined that it
required an EUO, without providing a reason. In five of the six
cases, (it was conceded in one that the Notice was insufficient)
boilerplate reasons (with some minor variance) including
"evaluation your potential entitlement" were used,
referencing essentially all benefits including Death and Funeral
Benefits even though they were not applicable. Counsel objected
stating that specific reasons were required. The argument at the
Application, though, was that a standard form was all that was
required and that specific reasons do not need to be given or
indeed ought to be given for tactical reasons when fraud may be at
play. In short, Aviva argued that it has a right to an EUO and the
notice requirement was merely a matter of form rather than
The court disagreed with Aviva. Matheson J. noted that EUOs were
introduced in 2003 in the White Paper, "Automobile
Insurance Affordability Plan for Ontario: Next Steps". This
was to balance providing benefits for legitimate claims while
reducing red tape, abuse and fraud. the judge felt that EUOs were
not given much prominence in the process and indeed cited the
rationale "where there is a reasonable concern about accident
A review of section 33 highlighting 33(2),(4) and (5):
33 (2) If requested by the insurer, an applicant shall submit to
an examination under oath...
33 (4) The insurer...shall give the applicant reasonable advance
notice of the following:
3. The reason or reasons for the examination.
33 (5) The insurer shall limit the scope of the examination
under oath to matters that are relevant to the applicant's
entitlement to benefits described in this Regulation.
The argument that only general references or generic reasons for
the notice are required was supported by Kivell v.
State Farm Mutual Automobile Insurance Co., 
O.F.S.C.D. No. 119 and Aviva v. Balvers, 2007
CarswellOnt 3117. However proper notice was conceded by the
claimant in the Balvers case and the issues related to
scope of examinations. In McKeown the notice was the key
The respondent relied on State Farm Mutual Automobile
Insurance Company v. Aslan 2016 ONSC 2725, a similar
test case. In that case, the court disagreed with Kivell.
Matheson J. quoted from Aslan, noting the Legislature
sought to achieve a balance between an insurer's right to
determine eligibility with the insured's rights "...a
right to be told in advance of the reasons for the
examination...". The court agreed that the notice requirements
must be something more than giving notice of the scope of the
examination. The notice requirement is a mandatory statutory
Reasons must be "meaningful". The court then referred
statements of defence in tort actions. However, the judge did not
address the fact that pleadings are almost always boiler plate in
nature since facts are generally not yet discovered, which is
analogous to the rationale in boilerplate EUO notice letters.
The court acknowledged that sufficiency of reasons could be an
issue. However, it was held that the insurer ought not to be
relieved of its statutory obligation. Similarly a claimant cannot
postpone an examination by quarrelling over the sufficiency of
reasons, so long as the insurer has a good faith reason for the
examination. Again, the court did not provide any assistance or
direction as to how this ought to be articulated.
Rather, the decision seems to be "whatever meaningful
reasons are, these are not them". Ironically, the rationale of
the judgment is essentially the same as the criticism levelled
against the insurer. Without any clear definition as to what
"meaningful" is, insurers should now expect to have to
litigate sufficiency of reasons. The decision is also problematic
since it also suggests that while precision in the notice is
required, the scope of the examination can be broad, as confirmed
by cases such as Balvers. This approach is somewhat
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