Dino v. Travelers Insurance
Released: 05/05/2021
In the matter of an Application for Dispute Resolution pursuant to subsection 280(2) of the Insurance Act, RSO 1990, c I.8., in relation to statutory accident benefits.
Between:
Bertalan Dino Applicant
and
Travelers Insurance Respondent
MOTION DECISION
Order made by: Craig Mazerolle, Adjudicator
Date of Order: May 5, 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 October 30, 2017.
2A hearing is scheduled for October 25 to 29, 2021. The issues in dispute include a catastrophic impairment determination, as well as requests for an attendant care benefit, a non-earner benefit, and an award.
3The respondent filed a Notice of Motion (dated March 22, 2021) seeking the following relief:
i. An order imposing a suspension of benefits (effective March 19, 2021) due to the applicant’s failure to attend a videoconference Examination Under Oath (“EUO”) scheduled for March 19, 2021.
4For the following reasons, I will grant the respondent’s motion. That is, I find that the applicant is not entitled to any payment of benefits under the Schedule from March 19, 2021 onwards (or until such date that he attends an EUO).
RELEVANT SECTIONS OF THE SCHEDULE
5Section 33(2) of the Schedule defines an insurer’s ability 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.
6Subsections (4) and (5) add the following 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.
7Subsection (6) then 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).”
8Finally, s. 34 is a remedial provision that can be used to cure certain non-compliance with the “Part” of the Schedule2 that includes s. 33(2): “A person’s failure to comply with a time limit set out in this Part does not disentitle the person to a benefit if the person has a reasonable explanation.”
ANALYSIS
9Similar to my finding in Drew v. Travelers Insurance Company of Canada (“Drew”),3 it is evident that the Schedule grants insurers the power to require an insured person to attend one EUO. Or, as I concluded at paragraph 21:
The 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.
10Both parties cited this decision in their submissions, and the applicant largely agrees that an insured person must attend an EUO when arranged in accordance with the Schedule. However, the applicant not only took issue with the way this particular EUO was arranged, but he contended that there must be a temporal limit for when this provision can be used by an insurer. I do not agree.
Parties’ Positions
11The respondent submitted that an insurer has the statutory right to require an insured person to attend an EUO, 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”).4 In essence, so long as proper notice is served, an insured person must attend the EUO. In this case, the applicant received proper notice on February 17, 2021, so there was no justifiable reason to not attend the videoconference EUO scheduled for March 19, 2021.
12Further, even if he tried to explain his non-attendance, the respondent submitted that it is not open to the applicant to argue whether he had a “reasonable explanation”. Section 34 allows individuals to avoid the penalties for not adhering to the “time limit” under certain provisions in the Schedule if they have a “reasonable explanation”. However, s. 33(2) does not create any “time limit”, so the respondent concluded that s. 34 cannot apply to missed EUOs.
13Claiming the EUO was improper due to both its timing and purpose, the applicant opposed this motion. First, the applicant claimed that the first time the respondent mentioned its intention to set up an EUO was in an e-mail sent on February 9, 2021. According to the applicant, the respondent had an obligation to provide all of the necessary information for a valid notice during this initial message, and it cannot rely on later correspondence to constitute valid notice.
14Second, the applicant alleged that the timing of this request (i.e., shortly after the February 9, 2021 case conference) should render the EUO invalid, because the respondent’s decision to wait until the eve of the hearing demonstrates that this questioning is not meant to assist the adjusting process. Rather, the respondent wants to improperly bolster its defense, even though the only valid reason to require attendance at an EUO is to help determine one’s entitlement to accident benefits.5
15Finally, the applicant reiterated these concerns about timing and purpose to state that, when seen together, he had a “reasonable explanation” to skip the EUO, because an insured person cannot be expected to attend an unreasonable EUO.
16In reply, the respondent stated that there is no support for the applicant’s position that it only had one opportunity to inform the applicant of its reasons for the EUO. That is, the respondent asserted that the February 9, 2021 e-mail was merely a courtesy meant to try and find a mutually available time slot. An insurer has an obligation under s. 33(4) to set the EUO at “a time and location that are convenient for the applicant”, so it would be absurd to limit the respondent’s ability to meet this statutory duty.
Proper Notice
17First, the applicant contended that it never received proper notice for the EUO, because the initial e-mail on February 9, 2021 did not include the necessary elements enumerated under s. 33(4) of the Schedule. This argument is mainly premised on the idea that the first e-mail to mention the EUO was the only opportunity that the respondent had to provide proper notice. According to the applicant, notice—by its very nature—is the first time that one alerts another to the possibility of something happening. Therefore, since this e-mail did not contain any reasons for why the EUO was being sought, it did not meet the standard under s. 33(4).
18I disagree. Beyond the fact that I was not pointed to any provision in the Schedule that would support this interpretation, this reasoning runs counter to the well-accepted principle that further correspondence can be used to remedy an earlier, deficient notice. For example, in Smith v. Co-operators General Insurance Co., the Supreme Court of Canada considered the cumulative effect of two denial letters to determine whether there was a valid denial.6
19I also accept the respondent’s argument that it would be absurd to interpret the Schedule in a manner that limits the parties’ ability to find a mutually available date for an EUO. Not only are insurers obligated to do just that, but such an interpretation would run counter to the Schedule’s consumer protection mandate by requiring an insurer to first set up an EUO that works for itself before then reaching out to the insured.
20With this reasoning in mind, I am then satisfied that the correspondence sent to the applicant on February 17, 2021 is a proper notice in accordance with s. 33(4). In addition to providing the applicant with the date and location (as well as indicating that he can attend with counsel), the respondent provided the following information about this proposed EUO’s purpose and scope [numbering removed]:
You are required to attend this examination under oath in order to provide us with information as to the circumstances that give rise to your Application for Accident Benefits and your entitlement to benefits, including your claim for Medical, Rehabilitation, and Income Replacement Benefits, as well as your application for Catastrophic Impairment.
The scope of the examination will be limited to matters that are relevant to your entitlement to the accident benefits you have applied for.
21Although sparse, this explanation provides the information necessary under ss. 33(4)3 and 4. That is, this first paragraph states the reasons why the applicant is required to attend, as the respondent wants to review “the circumstances that give rise to” both the filing of his application and the specific issues in dispute. Then, there is a reference to the allowable scope of questioning in the second paragraph. In fact, this notice indicates that there will be a more constrained scope of questioning than what is allowed under the Schedule, i.e., s. 33(4)4 references “the applicant’s entitlement to benefits” writ large, while this notice indicated that the EUO will be limited to benefits “applied for”.
22I would also add that the applicant’s counsel indicated in an e-mail (dated February 15, 2021) that March 19, 2021 should be kept open as a possible date for the EUO, as he wanted an opportunity to consider whether his client should attend. As such, I am not only satisfied that the applicant received valid notice, but the EUO was scheduled at a mutually available date.
Timing of the EUO
23Since I am satisfied that the respondent met its obligations under s. 33—thereby requiring the applicant to attend the EUO—I will now turn to the applicant’s argument that the timing of this request nonetheless rendered the EUO invalid.
24Simply put, the applicant argued that there must be some consideration of the point in time when an EUO is sought, because insurers cannot ask for an EUO unless there is a connection between the questions and the adjusting process. As such, the respondent’s decision to first ask for the EUO on the eve of the hearing reveals that this questioning is not a bona fide attempt to assist with adjusting. Rather, it is a means to bolster its defense.
25According to the applicant, support for this position can be found in the timeline leading up to the EUO request, i.e., despite filing an OCF-19 in 2019 (followed by a series of examinations in mid-2020), this EUO request did not arise until shortly after the February 2021 case conference.
26Finally, the applicant cited the following reasoning from Drew as support for the need to establish a connection between a proposed EUO and the adjusting process [emphasis added]:
The 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.7
According to the applicant, this reference to EUOs and insurer’s examinations (“IE”) as “investigatory tools” meant to assist in the “adjusting of a claim” is a strong indication that there must be a link between an EUO and the adjusting process before it can be a valid use of s. 33(2).
27I do not accept these arguments for several reasons.
28First, I again have not been pointed to any statutory provisions that require an EUO to take place at a certain point in the adjusting and/or hearing process. Aside from only allowing one EUO per claim (and stating that it cannot take place when an applicant is incapacitated), there are no other instructions provided in the Schedule for when an EUO may happen. What is more, this lack of instructions can be contrasted with other provisions where the Legislature laid out clear timelines (e.g., s. 33[1] of the Schedule requires an insured person to respond to a request for documentation within ten business days).
29Second, the divergence between the penalties for violating s. 33(2) versus s. 44(1) also provides helpful guidance. That is, s. 55(1) of the Schedule states that the failure to attend an IE set under s. 44(1) disallows an applicant from pursuing an application at the Tribunal. In contrast, failing to attend an EUO will trigger a freeze on benefits, but the hearing about these benefits can still take place.
30That is, while compliance with s. 44(1) is directly linked to one’s ability to participate in a hearing, there is no such connection between an EUO and the hearing process. This contrast, in my opinion, suggests that the Legislature did not intend for decision-makers to draw a link between the timing of an EUO and a hearing—a link that must be drawn for missed IEs.
31Further, even when one considers the hypothetical situation of an EUO being asked for mere days before a hearing, I again fail to see the relationship between the timing of such an EUO and its validity under the Schedule. It is true that the hearing adjudicator might question whether it is wise to admit the transcript from this EUO into the record, as there may be non-compliance with a disclosure deadline or concerns about the fairness of late-served evidence. However, regardless of how an adjudicator might rule on admissibility, these considerations are not determinations about the validity of the EUO itself. Put another way, the effects that the evidence gleaned from an EUO might have on the fairness of the hearing are unrelated to whether the EUO itself is valid.
32Finally, the applicant’s reading of paragraph 32 from Drew (cited above) misses a key aspect of this passage. That is, though it is true that an EUO’s purpose must be linked to the adjusting process, this link will be satisfied when an insurer ensures that the questioning meets “the low bar of relevancy in s. 33(5)”. In the present case, the applicant’s main argument about the lack of relevancy between the EUO and his entitlement to accident benefits is mainly premised on timing. As I have demonstrated above, I do not share these concerns. Instead, I am satisfied that the questioning proposed in the February 17, 2021 notice falls under the purview of this section.
33I would also add that, if any actual questions end up stepping outside the bounds of s. 33(5), the applicant has the opportunity to challenge them during the EUO.
Reasonable Explanation
34The parties contested whether the applicant’s reasons for missing the EUO counts as a “reasonable explanation”, since—according to the respondent’s interpretation—his explanation amounts to ignorance of the law. According to K.H. v. Northbridge General Insurance Company, ignorance of the law alone cannot ground such an explanation.8 The applicant disagreed, and rather asked the Tribunal to consider the well-established principle that insured persons are considered vulnerable parties when faced by the demands of their insurers.
35I do not find it necessary to make a ruling on this point, as I accept the respondent’s interpretation of the interaction (or, rather, lack thereof) between ss. 33(2) and 34. The plain language of s. 34 makes clear that a “time limit” must be created by virtue of the section that has been violated, and there is no “time limit” under s. 33(2). Instead, the only requirement for when a particular action has to take place (in this case, attend an EUO on a certain date) is not prescribed by the Schedule, but rather the insurer sets this date. Without a statutory “time limit”, there is no application of s. 34. As such, I will not consider whether the applicant has a “reasonable explanation”.
ORDER
36The respondent’s motion is granted. The applicant is not entitled to any payment of benefits under the Schedule from March 19, 2021 onwards (or until such date that he attends an EUO).
Released: May 5, 2021
Craig Mazerolle Adjudicator
Footnotes
- O. Reg. 34/10.
- O. Reg. 34/10, Part VIII – Procedures for Claiming Benefits.
- 2021 CanLII 30525 (ON LAT).
- 2017 ONCA 563.
- Aviva Insurance Company of Canada v. Balvers, 2007 CanLII 17193 (ON SC), at para. 17.
- 2002 SCC 30, [2002] 2 S.C.R. 129, at para. 20.
- Drew, at para. 32.
- 2019 CanLII 101613 (ON LAT), at para. 9.