Non-Attendance at an EUO is Non-Compliance pursuant to the Schedule

Adjudicator Mazerolle considered the issue of an applicant’s non-attendance at an Examination Under Oath and the remedies available to the insurer when this occurs in a recent decision, K.D. v. Travelers Insurance Company of Canada (20-007200/AABS).

The applicant had filed a late claim, by nearly 2 years. The insurer raised a Preliminary Issue at the Case Conference and a written hearing was scheduled to address whether the applicant was barred from proceeding with her application pursuant to Section 55 of the Schedule. The insurer then scheduled an EUO shortly after the Case Conference, but the applicant failed to attend. In turn, the insurer filed a Notice of Motion seeking,

  1. An Order compelling the applicant’s attendance at an EUO;
  2. An Order requiring that an adverse inference be drawn at the written hearing if the applicant does not attend an EUO; and
  3. An order imposing a suspension of benefits for failure to comply with Section 33(2) of the Schedule as required by Section 33(6).

The applicant argued that the timing of the EUO request was tantamount to a breach of procedural fairness where it was scheduled after the denial of the subject benefits. Adjudicator Mazerolle was not convinced, noting that unlike other provisions in the Schedule, which require that certain steps be taken within a certain number of days, there is no such requirement for an EUO request. An insurer can make an EUO request at any point in a proceeding.

However, Adjudicator Mazerolle determined that he has no authority to order an applicant’s attendance at an EUO. The Court of Appeal’s decision in Aviva v. McKeown (2017 ONCA 563) was referenced by the applicant, where the court ordered several parties to attend an EUO. Adjudicator Mazerolle clarified that while he is bound by the appeal court’s decision, the Tribunal does not share the court’s authority to compel a party to attend an EUO. Additionally, Adjudicator Mazerolle found that the hearing adjudicator, not a motion adjudicator, is best positioned to determine what weight, if any, should be applied to the applicant’s non-attendance.

However, Adjudicator Mazerolle found that the applicant’s non-attendance at an EUO was tantamount to non-compliance and suspended the applicant’s benefits from the date of the missed EUO. The language in Section 33(2) is clear that an insurer is entitled to one EUO per claim. As long as the procedural requirements are met (reasons are provided, etc.) Adjudicator Mazerolle proclaimed that there is “no reason – save for incapacity – to deny such a request.”

Hooman Zadegan is a member of the Examination Under Oath practice group. If you have a question about this decision or a similar file, please contact Hooman at 416-777-5235.