Under Section 33 of the Statutory Accident Benefits Schedule (SABS), an auto insurer can request that a person applying for accident benefits (ABs) attend an "examination under oath" (EUO) to determine the facts upon which ABs may be owing or outstanding. Although not required, a lawyer or licensed paralegal may attend with the insured to make sure that the representative of the auto insurer asks only relevant questions.
Because the auto insurer can deny the payment of ABs until the insured person complies with an EUO, the insured's representative has to determine if a request is appropriate, and, if not, what the consequences will be for failing to attend. Although the first reaction of a representative may be to not allow their client to attend an EUO after the commencement of proceedings, failing to do so may jeopardize their client's right to past and future ABs. There is no time limit imposed on an insurer to request an EUO-the insurer may still be entitled to do so even after a claim has been issued or an application for arbitration has been filed.
From the auto insurer's perspective, it would be best to request an EUO at the outset of a claim for SABS, when little is known about the insured's circumstances. More often, however, an auto insurer will request an EUO after benefits have been paid for some period of time and then terminated. This is typically the point at which an application for mediation has been filed with the Financial Services Commission of Ontario (FSCO) or at some stage later in the proceeding. Because of the frequency of this issue arising, both the courts and FSCO have addressed the appropriateness and timeliness of an insurer's request for an EUO.
In the FSCO decision of Balanki and Zurich, the insurer requested that the insured attend an EUO more than two years after the accident and after arbitration proceedings were commenced. In this case, the arbitrator did not allow the EUO-however, this decision was not due to the timing of the request in relation to the arbitration date or the past denial of benefits, but instead on the basis that no new information had come to light, making the examination needless. This decision reveals that an insurer may be risking the opportunity for an EUO if requested at a late stage, when the facts supporting a claim have stabilized.
To avoid being disentitled to an EUO, an insurer needs to make the request timely: ideally, at the outset of the claim and preferably while benefits are still being paid. Should an insurer fail to make the request in a timely manner, a lawyer or paralegal may be properly advising their client when they refuse their attendance.