In the matter of Dino v. Travelers Insurance, Adjudicator Craig Mazerolle revisits the issue of an applicant’s non-attendance at an Examination Under Oath. Significantly, he considered the relationship between ss. 33(2) and 34 of the Schedule.
The insurer sought an order imposing a suspension of benefits due to the applicant’s failure to attend a videoconference Examination Under Oath. The applicant refused to attend at the Examination Under Oath due to what he believed to be an invalid notice, and further due to its timing and purpose. The insurer argued that its beliefs amounted to a “reasonable explanation” pursuant to s. 34 of the Schedule.
The applicant argued that the insurer’s notice was invalid, as the initial email sent by the insurer notifying of its intention to schedule an EUO did not include the necessary elements enumerated under s. 33(4) of the Schedule. The applicant’s position was that the first email mentioning the EUO was the only opportunity to provide proper notice, thereby rejecting all further notices from the insurer to schedule same.
Secondly, the applicant argued that the timing and purpose of the EUO served only to improperly bolster the insurer’s defence, as it was first requested “on the eve of the hearing”.
Lastly, the applicant argued that he had provided a “reasonable explanation” for missing the EUO, being those reasons outlined above.
Adjudicator Mazerolle rejected all of these arguments. He noted his earlier decision in Drew v Travellers (2021 CanLII 30525 (ON LAT)) where he held that, save for incapacity, there is simply no basis to refuse the one time request from an insurer to attend an examination under oath. With respect to proper notice, he found that the applicant’s reasoning would run counter to the principle that further correspondence can be used to remedy an earlier, deficient notice. As such, he was satisfied that the applicant had received valid notice.
With respect to the timing of the EUO, Adjudicator Mazerolle held that there are no instructions provided in the Schedule for when an EUO may happen, and provided a comparison between the effects of non-compliance pursuant to s. 44 versus s. 34 of the Schedule. While refusal to attend a s. 44 IE would bar an application to the Tribunal, failure to attend an EUO merely triggers a freeze on benefits, but the hearing can still take place. As such, he failed to see the relationship between the timing of an EUO and its validity under the Schedule.
Most notably, Adjudicator. Mazerolle agreed with the insurer’s interpretation (or rather, “lack thereof”) of ss. 33(2) and 34. There is no statutory “time limit” under s. 33(2) for when an EUO must take place, and as such, there is no need to consider whether the applicant had a “reasonable explanation” for failing to attend.
In light of the foregoing, Adjudicator Mazerolle granted the insurer’s motion, and held that that applicant was not entitled to any payment of benefits under the Schedule until he attends at an EUO.
Adjudicator Mazerolle’s decision is consistent with the decision of Vice Chair Hunter, in Kandasamy v. Allstate Insurance, wherein a videoconference hearing was stayed until the applicant, among other things, attended at an EUO.
This decision is significant as it points to the idea the Legislature did not intend for decision-makers to draw a link between the timing of an EUO and a hearing. As the Court of Appeal made clear in McKeown v Aviva, 2017 ONCA 563 if proper notice is given, the Applicant must attend. Arguments about inadequate reasons, lack of timeliness of the request will not be successful, even if the request for the EUO is made on the eve of a hearing.
Lauren Kolarek is a member of the LAT and EUO practice groups and author of this blog. If you have a question about this decision or a similar file, please contact Lauren at 416-777-5244.