Released Date: 01/21/2021
Tribunal File Number: 20-007200/AABS
In the matter of an Application pursuant to subsection 280(2) of the Insurance Act, R.S.O. 1990, c. I.8., in relation to statutory accident benefits
Between:
Kelly Drew
Applicant
and
Travelers Insurance Company of Canada
Respondent
MOTION DECISION
Adjudicator: Craig Mazerolle, Member
Motion Order Dated: January 21, 2021
BACKGROUND
1This proceeding, under the Statutory Accident Benefits Schedule – Effective September 1, 2010 (the "Schedule")1, arises out of a motor vehicle accident on June 13, 2018. When the respondent denied certain accidents benefits, the applicant filed an application with the Tribunal on June 23, 2020 requesting a resolution of this dispute.
2The substantive issues in this application included several medical benefits and a request for an award.
3During a case conference held on November 17, 2020, the respondent raised the following preliminary issue:
i. Is the applicant barred from proceeding with her application pursuant to s. 55 para. 1 of the Schedule because she failed to submit an Application for Accident Benefits (OCF-1) form in accordance with s. 32(5) of the Schedule?
4The parties then agreed to have this preliminary issue decided by way of a written hearing scheduled for April 19, 2021.
5Briefly, s. 32(5) of the Schedule requires an insured person to submit an OCF-1 within 30 days of receiving it from their insurer. However, an insured person can still access accident benefits if there was a "reasonable explanation" for not meeting this deadline: see s. 34.
6Several hours after this case conference, the respondent asked the applicant to attend an Examination Under Oath ("EUO") on December 18, 2020.
7The applicant did not attend the EUO, and instead informed the respondent that she found this request to be improper.
NOTICE OF MOTION
8The respondent filed a Notice of Motion (dated December 8, 2020) seeking the following relief:
i. An order compelling the applicant's attendance at an EUO on or before February 1, 2021;
ii. An order requiring an adverse inference be drawn at the written hearing if the applicant chooses not to attend an EUO prior to February 1, 2021; and,
iii. An order imposing a suspension of benefits (effective November 17, 2020) for failure to comply with s. 33(2) of the Schedule as required by s. 33(6).
9For the following reasons, I find that the Tribunal does not have the authority to order an applicant to attend an EUO, nor am I best suited to determine whether an adverse inference should be drawn for this non-compliance. However, I do find that the applicant is not entitled to any payment of benefits under the Schedule from December 18, 2020 onwards (or until such date that she attends an EUO with the respondent).
PARTIES' POSITIONS
10The respondent submitted that attendance at an EUO is mandatory, an interpretation of s. 33(2) that has been upheld by the Court of Appeal for Ontario in Aviva Insurance Company of Canada v. McKeown ("McKeown").2 That is, save for situations where an EUO has already been conducted or where an applicant is incapacitated, there is no limit to this absolute right of an insurer.
11Since neither of these limited situations exist, the applicant's attendance should be ordered by the Tribunal (or, in the alternative, her non-attendance should lead to an adverse inference at the preliminary issue written hearing). What is more, in accordance with s. 33(6) of the Schedule, no benefits should be payable so long as she is in non-compliance with this request.
12The applicant responded by arguing that this request for an EUO is improper because it is not being made in accordance with the purpose allowed under s. 33(5) of the Schedule, i.e., to "consider the insured's entitlement to benefits". Rather, it is an attempt to, in the words of the applicant, "conduct an in-person cross-examination in aid of its submissions to defeat the Insured's claim at a hearing that is taking place in writing".
13This improper purpose is evidenced by the respondent's decision to ask for the EUO after it had agreed to conduct the preliminary issue hearing in writing, as well as the respondent's submission in this motion that an EUO must be completed in time for a transcript to be filed for the upcoming written hearing. Therefore, in accordance with her interpretation of McKeown, the applicant argued that she does not have to attend this "abusive" examination.
14Finally, the applicant contended that she has already provided the respondent with an explanation for the late filing of her OCF-1, by way of a letter she sent the respondent in July 2020.
ANALYSIS
Legislation
15Section 33(2) of the Schedule defines an insurer's right to request an insured person's attendance at an EUO as follows:
(2) If requested by the insurer, an applicant shall submit to an examination under oath, but is not required,
(a) to submit to more than one examination under oath in respect of matters relating to the same accident; or
(b) to submit to an examination under oath during a period when the person is incapable of being examined under oath because of his or her physical, mental or psychological condition.
16Subsections (4) and (5) then add parameters to this attendance:
(4) The insurer shall make reasonable efforts to schedule the examination under oath for a time and location that are convenient for the applicant and shall give the applicant reasonable advance notice of the following:
The date and location of the examination.
That the applicant is entitled to be represented in the manner described in subsection (3).
The reason or reasons for the examination.
That the scope of the examination will be limited to matters that are relevant to the applicant's entitlement to benefits.
(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.
17Finally, subsection (6) outlines the following penalty for insured persons that fail to attend an EUO: "The insurer is not liable to pay a benefit in respect of any period during which the insured person fails to comply with subsection (1) or (2)."
Weighing of Non-Attendance and Order for Compliance
18To start, I will not dictate how the hearing adjudicator should weigh the applicant's non-attendance at the EUO, as the hearing adjudicator will be best positioned to determine what weight, if any, should be applied to this non-compliance.
19I then find that the Tribunal does not have the authority to order an applicant's attendance at an EUO. Similar to the Tribunal's inability to compel attendance at an insurer's examination, there must be specific statutory language before the Tribunal can make such an order. I see no such language in the Schedule, and so I decline to consider this request.
20However, I find the applicant has failed to attend an EUO that the respondent is allowed to request under the Schedule. Therefore, this non-compliance means that no benefit shall be paid to the applicant, in accordance with s. 33(6).
Non-Payment of Benefits
21The language of s. 33(2) of the Schedule is clear—an insurer is entitled to require an insured person to attend one EUO per claim. There are some procedural elements that must be met (e.g., ensuring it is held in a mutually convenient location, providing the reasons for the examination, etc.), but, so long as these items are met, there is no reason—save for incapacity—to deny such a request.
22In a letter to the applicant's representative (dated December 3, 2020), the respondent's representative laid out the following information about the proposed EUO: the date and location of the examination; the fact that the applicant is entitled to be represented at the examination; the reasons for the examination; and the fact that it will be limited to topics relevant to determining her entitlement to accident benefits. I find that this letter met the respondent's procedural duties under s. 33(4). Therefore, in meeting its obligations for scheduling an EUO, the respondent was under no further obligation "to pay a benefit" once the applicant declined to attend the EUO scheduled for December 18, 2020.
23The respondent seeks to have this limitation on the payment of benefits backdated to November 17, 2020, presumably because the respondent first alerted the applicant of its intention to schedule an EUO on this date. It is also the date when the applicant's counsel first alerted the respondent of his client's intention not to attend the examination. However, even though the applicant's position was clearly laid out on this date, it was always open to the applicant to change her mind and attend the examination. Therefore, the breach only arose when she did not attend the EUO on December 18, 2020.
24In accordance with s. 33(8)(a), this breach may be remedied if the applicant one day chooses to attend an EUO with the respondent—an attendance that will require then the respondent to "resume payment of the benefit, if a benefit was being paid".
25It should be noted that payments can also be made retroactively for the period between December 18, 2020 and any eventual attendance at an EUO. Pursuant to s. 33(8)(b) though, this retroactive payment is only required if the applicant can provide a "reasonable explanation for the delay in complying" with the EUO. Considering the submissions that she has provided to date (and as I will explain below), I do not find the applicant has a "reasonable explanation" for this non-compliance.
Applicant's Arguments
26The applicant challenged this EUO is a number of ways, but I do not find any of these arguments compelling in the face of the clear language under s. 33.
27The major concern raised by the applicant is the timing of the EUO request. For instance, in her sur-reply, the applicant highlighted how this request was made well after the respondent had denied the benefits at issue (and then even after the format of the preliminary issue hearing had been determined on consent). Therefore, beyond alleging that this timing amounts to a breach of procedural fairness, the applicant argued that this examination has no connection to determining whether she is entitled to the benefits currently in dispute. This lack of a connection means there is no topic that can be addressed at the EUO that would meet the allowable scope of questioning under s. 33(5): i.e., "matters that are relevant to the applicant's entitlement to benefits".
28First, I find that there is no requirement that an insurer's EUO request take place at a particular point in a proceeding. That is, compared to other provisions in the Schedule where certain steps must be taken in accordance with defined timetables (e.g., the 30-day requirement for filing an OCF-1 under s. 32[5], or the respondent's need to respond to a treatment plan within ten days under s. 38[8]), no such requirement is attached to an EUO. So long as the procedural requirements are met, an insurer may schedule one EUO at any time following an accident.
29Second, the applicant's interpretation of the topics allowed at an EUO is too narrow. Support for a broad definition of "entitlement to benefits" under s. 33(5) can be found through a comparison to the similar investigatory power afforded to insurers under s. 44(1). Under this provision, an insurer's ability to require an examination by a doctor, occupational therapist, etc. is limited to "not more often than is reasonably necessary" to determine entitlement to a benefit. The phrase "reasonably necessary" has been interpreted to mean that the purpose and timing of a request under s. 44 must be all weighed by an adjudicator to conclude whether an examination is needed to determine one's entitlement to a certain benefit.
30The language in s. 33 contains no such ambiguity. Take for instance the more direct language used in the opening of s. 33(2) [emphasis added]: "If requested by the insurer, the applicant shall submit to an examination under oath…". There is no need to justify an EUO's purpose or necessity. Rather, when an insurer asks for one, an insured person must comply.
31Additionally, while a specific examination must be found to be "reasonably necessary" before it is allowable under s. 44(1), an EUO can touch on any topic an insurer chooses, so long as the topics are [emphasis added] "matters that are relevant to the applicant's entitled to benefits". As opposed to the need for a clear connection between a benefit and an examination under s. 44(1), an insurer must only establish some connection between the topics at an EUO and the benefits available to an applicant under the Schedule. Clearly, the existence of such a threshold does not mean that an insurer can ask about anything it chooses, but the obligation on an insurer to demonstrate the appropriateness of a line of questioning at an EUO is limited to the lower bar of relevance.
32The difference between the more stringent "reasonably necessary" standard in s. 44(1) and the low bar of relevancy in s. 33(5) can also be understood through the distinct allowances that the Legislature provides for these investigatory tools during the adjusting of a claim. That is, while an insurer can theoretically send an insured person to a limitless number of insurer's examinations under s. 44(1) (provided that they are all "reasonably necessary"), only one EUO is allowed per claim. By considering this one-time power, it makes sense that this single event would be open to a wide-range of questions and topics, as opposed to the more limited purposes of s. 44(1) examinations that can take place many times throughout the lifespan of a claim.
33Finally, I am satisfied that the respondent has put forward relevant topics to explore at this examination. In the aforementioned letter to the applicant's representative (dated December 3, 2020), the respondent provided the following reasons for the examination: "(i) provide information as to the circumstances that give rise to your client's Application for Accident Benefits; and (ii) determine your client's entitlement to accident benefits under the [Schedule]". Though generic in nature, I once again point to the lack of the "reasonably necessary" standard under s. 33 of the Schedule. The respondent does not have to prove a necessary link between a topic at the EUO and the applicant's entitlement to benefits. Instead, a lower standard of "relevant" is needed, and I find that these reasons meet this standard.
34There is also a dispute between the parties over the interpretation of the Court of Appeal's reasoning in McKeown. Though a decision of the Court of Appeal is binding on my decision, I do not find the applicant's interpretation is helpful in this dispute. Specifically, while the applicant highlighted the following section of McKeown for the proposition that she cannot be forced to attend "a needless and abusive EUO", this reasoning is line with what I have ordered:
I might add that the vulnerability of an applicant to a needless and abusive EUO is truncated by the legislation. The only possible consequence to an applicant who fails to attend an EUO is a suspension of benefits for the period of non-compliance (s. 33 (6) of the [Schedule]). The applicant could still claim the benefits at arbitration before a FSCO arbitrator at the time these disputes arose, or now before the License Appeals [sic] Tribunal…
I should not be taken to diminish the plight of an applicant whose benefits are suspended, but consequences of noncompliance with s. 33 (2) are much less onerous than of noncompliance with s. 44 of the [Schedule], for example. Recall that under this provision, an insurer may require an insured person undergo an examination by regulated health professionals or vocational rehabilitation experts. Section 55 prevents an insured person from proceeding to arbitration if they have not complied with an insurer's request… per s. 44.3
35Put another way, the Court of Appeal calls upon adjudicators to terminate payment of benefits for failure to attend an EUO, all the while allowing the parties to proceed to a hearing over substantive entitlement. That is what I have ordered.
36I also fail to accept the respondent's suggestion in its reply submissions that the Court of Appeal has empowered me to order the applicant's attendance at an EUO. Though the Court of Appeal ultimately ordered several of the insured persons to attend EUOs, I again find no such authority for the Tribunal itself to make such an order.
ORDER
37The applicant is not entitled to any payment of benefits under the Schedule from December 18, 2020 onwards (or until such date that she attends an EUO with the respondent).
Released: January 21, 2021
__________________________
Craig Mazerolle
Adjudicator
Footnotes
- O. Reg. 34/10.
- 2017 ONCA 563.
- McKeown at paras. 67-68.