Tribunal File Number: 18-000533/AABS
Case Name: 18-000533 v Jevco Insurance
In the matter of an Application pursuant to subsection 280(2) of the Insurance Act, RSO 1990, c I.8., in relation to statutory accident benefits
Between:
P. F.
Applicant
And
Jevco Insurance
Respondent
DECISION
ADJUDICATOR: Brian Norris
APPEARANCES:
For the Applicant: Stanley Razenberg, Counsel
For the Respondent: Vlad Stefanescu, Counsel
HEARD: In writing on July 30, 2018
OVERVIEW
1The applicant was involved in an automobile accident on October 20, 2015 and sought benefits from the respondent pursuant to O. Reg. 34/10: Statutory Accident Benefits Schedule – Effective September 1, 2010 (the “Schedule”).
2The respondent refused to pay for certain benefits sought by the applicant. The applicant has applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of this dispute.
3Following the application and prior to the case conference, the respondent requested the applicant attend an examination under oath (EUO). The applicant did not attend the scheduled EUO.
4As a result of the case conference a preliminary issue hearing was ordered to determine whether the applicant is obliged to attend at the EUO.
ISSUE
5Is the applicant obliged to attend an examination under oath that was requested by the respondent after this application was submitted to the Tribunal?
RESULT
6The applicant has refused to attend a properly scheduled EUO and is not compliant pursuant to section 33(2). The applicant is obliged to attend the EUO and, pursuant to section 33(6), the respondent is entitled to suspend the benefit(s) until the applicant attends the EUO. The adjudication of the substantive issues in dispute will proceed in accordance with Tribunal Rules and pursuant to the Order dated May 31, 2018.
BACKGROUND
7The applicant filed an application with the Tribunal on January 17, 2018, disputing the respondent’s refusal to pay certain benefits. The respondent provided a response dated February 8, 2018.
8On February 12, 2018, the respondent wrote to counsel for the applicant and requested the applicant attend an EUO. During telephone conversations between the offices of the parties’ counsel, counsel for the applicant agreed to produce the applicant for an EUO on March 13, 2018. The arrangement was confirmed in a letter from counsel for the respondent dated February 23, 2018. Later, the applicant retained new counsel and advised the respondent of this by letter dated March 9, 2018. The March 9, 2018 correspondence also requested the respondent cancel the scheduled EUO. The respondent did not cancel the EUO and the applicant did not attend the March 13, 2018 EUO. A new EUO has not been scheduled.
CAN THE RESPONDENT REQUEST AN EUO AFTER AN APPLICATION IS FILED?
9The respondent submits that an insurer’s right to an EUO is absolute and can be made after an application has been filed. The applicant does not dispute the respondent’s position and relies on the argument the EUO notice was insufficient, invalidating the request and the applicant’s requirement to attend.
10Section 33 of the Schedule provides an insured shall submit to an EUO when requested by the insurer. The schedule provides two exceptions where an insurer may not request and EUO:
the applicant has already attended an EUO in respect of matters relating to the subject accident; and
the applicant is medically unable to attend and an EUO.
11In addition to these exceptions, there are notice requirements imposed upon the respondent, which I will outline later.
12Considering the arguments before me and the Schedule, I find that the respondent may request an EUO after an application has been filed. There are no arguments before me which contradict this finding and the commencement of an application is not one of the two exceptions available to the applicant.
WAS THE EUO NOTICE PROPER?
13Section 33 also provides certain requirements that the respondent must satisfy when scheduling an EUO. Failing which, the respondent is not permitted to suspend the benefit(s).
14First, the respondent must make reasonable efforts to schedule the EUO at the applicant’s convenience. Second, pursuant to section 33(4), the respondent must provide advance notice of the following details of the EUO:
The date and location of the EUO;
That the applicant is entitled to be represented at the EUO;
The reason(s) for the EUO; and
That the scope of the EUO will be limited to matters relevant to the insured’s entitlement to accident benefits.
15The applicant does not argue the respondent failed to schedule the EUO at the applicant’s convenience.
16The applicant’s position is the respondent failed to confirm the scope of the EUO was to be limited to matters that are relevant to the benefits claimed. The applicant submits the phrase in the EUO notice stating the scope of the EUO would be “in addition to matters relevant in (the applicant’s) entitlement to benefits” contravenes section 33(4)4.
17Additionally, the applicant submits the respondent’s notice failed to confirm the applicant is entitled to be represented by counsel at the EUO.
18The respondent submits the notices provided are sufficient and any ambiguity in the first notice dated February 12, 2018 was remedied by the second notice dated February 23, 2018.
19Considering the submissions and evidence before me, I find that together the February 12, and February 23, 20