Court File and Parties

Court File No.: CV-21-00002697 Date: 2021-11-04 Superior Court of Justice - Ontario

Re: Aviva Insurance Company of Canada, Applicant And: Celestina Ivie Ebhodaghe, Respondent

Before: J. Di Luca J.

Counsel: Grace Tran, Counsel, for the Applicant Respondent appears in person

Heard: October 27, 2021

Endorsement

[1] This is a motion by Aviva Insurance Company of Canada (“Aviva”) seeking an order compelling Ms. Ebhodaghe to attend at an examination under oath and produce certain documents pursuant to her contractual and statutory obligations under an auto insurance policy.

Summary of Facts

[2] Ms. Ebhodaghe insured her vehicle with an insurance policy provided by Aviva. The policy was effective June 14, 2020. It lapsed and then was reinstated on August 23, 2020. In the policy documents, Ms. Ebhodaghe represented her address as a residence in Ottawa, Ontario.

[3] On November 5, 2020, Aviva was notified of a theft claim on the vehicle. The theft was alleged to have occurred on November 4, 2020 at or near a residence in Toronto. Ms. Ebhodaghe filed a proof of loss form as requested and her file was reviewed by Aviva thereafter.

[4] On December 15, 2020, an employee from Aviva, Christopher Raguseo, interviewed Ms. Ebhodaghe by telephone. The call, which lasted over one and a half hours, was recorded and a transcript of the call was filed with the material on this application.

[5] It is unclear what Mr. Raguseo’s position is within Aviva. He does not describe his position during the call. As well, the affidavit material on the application provides no details. Emails appended as exhibits to the affidavit variously describe his title as “Policy Investigations”, “Underwriting” and “Underwriter.”

[6] In any event, from the contents of this call, it is clear that Mr. Raguseo personally believes or at least suspects that Ms. Ebhodaghe has been untruthful on her policy documents. One of his main areas of concern is with the address that Ms. Ebhodaghe claims to reside at in Ottawa. Over the course of the lengthy call, Mr. Raguseo asks many questions on this issue. The questions include seeking a description of the building in Ottawa, naming the people she resides with, providing a copy of the lease, providing details about how she pays rent, providing details of her commute to work, etc. It is clear from the nature of the questions that Mr. Raguseo is investigating the veracity of information Ms. Ebhodaghe provided when she obtained the policy.

[7] While Ms. Ebhodaghe maintains that she resides in Ottawa, she indicates that she visits her boyfriend in Toronto on a regular basis and that the car was stolen while she was in Toronto on one such visit. Mr. Raguseo continues asking questions about the frequency of her visits to Toronto. Ms. Ebhodaghe indicates that after a period of time where she went back and forth from Ottawa to Toronto, she eventually moved to Toronto in late November or early December 2020.

[8] At a certain point in the interview, Mr. Raguseo states “So, Celestina, what would you say if I had said that I have some information that suggests you might not live in Ottawa?” He does not reveal precisely what this information might be.

[9] As the interview continues, Mr. Raguseo then asks Ms. Ebhodaghe to provide her cell phone records, and more particularly her cell tower data records, which he explains will assist Aviva in determining Ms. Ebhodaghe’s physical location when using her phone.

[10] While Ms. Ebhodaghe does not appear to fully appreciate the nature of the request, she does react by suggesting that the request appears to be asking about her “personal life.”

[11] Mr. Raguseo indicates that he will provide her with a direction to be completed and signed which authorizes her cell phone provider to release the cell tower data to Aviva. Ms. Ebhodaghe objects to what she perceives is an unwarranted intrusion into her privacy.

[12] On December 17, 2020, Mr. Raguseo sends a follow-up email to Ms. Ebhodaghe. In this email, he indicates that he is enclosing a direction which will authorize Ms. Ebhodaghe’s cell phone provider to release cell tower data for the time period from June 14, 2020 to “present” – essentially six months of location data.

[13] Mr. Raguseo also asks for “bank statements for all banking accounts that you may have” and “bank account statements for all debit and credit cards” for the time period of June 14, 2020 to “present” – again a period of six months.

[14] The bank and cell phone provider directions sent by Mr. Raguseo to Ms. Ebhodaghe were not included in the application record. At the request of the court, counsel provided the directions relating to bank records. Counsel did not provide the cell phone provider direction. However, she indicated that Aviva was no longer seeking access to the cell tower location data. As will be reviewed momentarily, this position appears to have been based on information Ms. Ebhodaghe received from her cell phone provider.

[15] Two directions were prepared for banking records. One for a PC Financial Master Card provided by President’s Choice Financial and one for four different bank accounts and a Visa credit card provided by TD Canada Trust. It is clear that Ms. Ebhodaghe revealed all of her banking information in advance to Aviva as the directions specify the specific account numbers for all six financial products.

[16] The directions are broadly worded directing the bank to release “copies of the customer’s account profile listing, and copies of all statements for the following accounts … for the period May 15, 2020 to November 4, 2020.”

[17] On December 22, 2020, Ms. Ebhodaghe forwarded an email from her cell phone provider to Mr. Raguseo. The email reveals that Ms. Ebhodaghe requested cell tower data for her cell phone but was advised that it could not be provided.

[18] By way of email response that same date, Sami Rashid, Mr. Raguseo’s supervisor, acknowledged that cell tower records could not be provided but reiterated the request for the banking and credit card statements.

[19] On February 11, 2021, Ms. Ebhodaghe wrote to Mr. Rashid indicating that she would not be providing further information as she viewed the requests as invasions of her privacy. She described that the process had been very stressful on her and she described Aviva as “tormenting” her. She concluded the letter by indicating she had retained counsel.

[20] On February 17, 2021, Mr. Rashid responded in a letter sent by email and registered mail. In this letter, he acknowledged that Ms. Ebhodaghe had provided bank and credit card statements on December 20, 2020 and January 16, 2021. However, he noted that she had not signed and returned the provided directions thereby preventing Aviva from “validating” the bank statements. He also noted that she had not provided bank statements for all the bank accounts she had listed. He went on to explain, “[a] complete description of each transaction is essential for our policy review, which description we require includes but is not limited to complete Merchant’s Store numbers and location.”

[21] On March 5, 2021, Mr. Rashid wrote again indicating that the required directions had not been signed and that if they were not received by March 16, 2021, the claim could be denied for failure to cooperate and the policy could be cancelled.

[22] On March 9, 2021, Ms. Ebhodaghe’s counsel, Michael Blott, contacted Aviva requesting copies of previous correspondence and suggesting an interest in settling the matter. A letter was sent to Mr. Blott on May 12, 2021 by Mr. Lui, counsel on behalf of Aviva, requesting that Ms. Ebhodaghe attend for an examination under oath. On May 25, 2021, Mr. Lui sent a further letter advising that, in the absence of a response, an application to compel attendance would be brought. Mr. Blott eventually advised that he was no longer retained.

Issues on the Application

[23] Aviva seeks an order compelling Ms. Ebhodaghe to attend at an examination under oath. Aviva also seeks a related order compelling Ms. Ebhodaghe to produce “all documents relating to the matters in question.” The application and supporting affidavit are silent on what “all documents” entails. That said, in the course of submissions, counsel advised that Aviva was no longer seeking cell tower records, just the banking records. Counsel maintained the production of the banking records, including the retailer location data, would assist Aviva by demonstrating where Ms. Ebhodaghe “habitually resides.”

[24] The policy in this case is governed by the Insurance Act. Section 234(1) of the Act provides that statutory conditions set out by regulation are deemed to be part of every insurance contract. The applicable terms and conditions are set out in the Ontario Automobile Policy known as OAP1. Section 8 of the OAP1 lists certain statutory conditions found in Statutory Conditions – Automobile Insurance, O. Reg. 777/93. Condition 6(4) of these Statutory Conditions provides as follows:

Examination of insured

(4) The insured shall submit to examination under oath, and shall produce for examination at such reasonable place and time as is designated by the insurer or its representative all documents in the insured’s possession or control that relate to the matters in question, and the insured shall permit extracts and copies thereof to be made.

[25] The purpose of the section is to provide an insurer with an opportunity to obtain knowledge of facts necessary to enable it to decide upon its obligations and to protect it from false claims: see Baig v. The Guarantee Company of North America, 2007 ONCA 847 at para. 25.

[26] There is no issue that a court can grant an order compelling an insured to participate in an examination under oath at the request of their insurer, see Lauzon v. AXA Insurance (Canada), 2013 ONCA 664 at paras. 12-13.

[27] Based on these authorities, it is clear that Ms. Ebhodaghe has a statutory obligation to participate in an examination under oath at the request of the insurer. While it appears that Ms. Ebhodaghe initially refused to attend an examination under oath, she changed her mind shortly prior to argument of the motion. Indeed, during argument of the motion, she advised the court she now understands that she is required to attend. As such, I decline to make an order for her to attend. I am cognizant that in the absence of a court order, she may change her mind again. Should that happen, Aviva can come back before me and seek the appropriate order.

[28] In view of Aviva’s conduct in questioning Ms. Ebhodaghe about the location of her residence and its demand for broad access to Ms. Ebhodaghe’s cell tower data and banking records, I wish to address a clear issue that arises in relation to the scope of the examination as well as the scope of documentary production requested.

[29] I note that the scope of permissible questioning is not open ended but rather restricted to “questions that are material to the insurer's liability and the extent thereof”: see Baig, supra, at para. 25. As Juriansz J.A. explains in Baig at paras. 26-27:

The purpose of the statutory examination is to provide GCNA with the opportunity to examine the insured in regard to the matters that might properly affect its decision whether or not to pay the claim.

I recognize the force of counsel for Baig's submission that taking a broad view of the scope of the statutory examination could provide insurers with the opportunity to conduct baseless reviews of the underwriting of the insurance contract in an effort to find a basis to refuse claims. Undoubtedly, the statutory examination is not intended to permit insurers to embark on fishing expeditions or to take blind shots in the dark. However, where the insurer has an objective and reasonable basis for suspecting fraud in the initial appraisal, questions about the matter are relevant.

[30] It is clear that in making an order compelling a person to attend for examination under oath, a court can also assess the relevance of the proposed areas of questioning. In doing so, the court has the jurisdiction to compel a person to attend and answer only relevant questions and produce only relevant documents.

[31] Applying that standard to this case, I start by observing that the implicit position in the material filed is that Ms. Ebhodaghe lied about her home address when she applied for insurance. However, I note that Aviva has placed nothing before the court supporting a possible inference or finding that Ms. Ebhodaghe did, in fact, lie in her insurance application. I appreciate that Mr. Raguseo either believes or at least suspects that she did, but the basis for his belief or suspicion is not set out in the materials. While the transcript of the discussion with Ms. Ebhodaghe raises some issues, I am not prepared to find that it, standing alone, provides a reasonable and objective basis to suspect that Ms. Ebhodaghe lied or committed fraud. Furthermore, while I understand from general knowledge that insurance companies calibrate rates according to geographical locations, I have no evidence before me explaining why this is an issue on the facts of this case and why it may result in Aviva declining coverage and/or cancelling the policy. In other words, I have no basis for assessing why, assuming she did lie about her residence location, it is material to the decisions that Aviva must make in assessing the claim. As such, it is not possible on this record to conclude that Aviva has an “objective and reasonable” basis for suspecting fraud in the initial application by Ms. Ebhodaghe.

[32] Should this motion return before me, Aviva would be wise to consider the evidentiary basis upon which it seeks an order compelling Ms. Ebhodaghe to submit to an examination about the veracity of her claimed residential address. Again, I note that Baig clearly states that a statutory examination is not a fishing expedition.

[33] In terms of the request for an order compelling documentary production, I am not remotely satisfied that the scope of permissible examination would include production of cell tower data and banking data that includes the specific locations where Ms. Ebhodaghe spent her money over many months.

[34] To be blunt, these requests are abusive and unnecessarily invasive of Ms. Ebhodaghe’s privacy rights. Condition 6(4) of the Statutory Conditions authorizes an insurer to obtain information relevant to assessing its contractual obligations. It does not authorize a broad, unfettered sweep through the intimate details of a person’s movements and spending habits over many months.

[35] On this point, I take absolutely no consolation from counsel’s offer to accept redacted banking records which merely reveal the location where a purchase was made and the date. First, this offer was not made anywhere in the materials or set out in the directions which Aviva wanted Ms. Ebhodaghe to sign. Second, even with the store name and item description redacted, the information sought nonetheless amounts to a significant and unwarranted invasion of privacy.

[36] In conclusion, as Ms. Ebhodaghe has agreed to attend an examination under oath as required under the Statutory Conditions, I am not prepared make an order requiring her to do so at this time. Should her position change, the application can be returned before me for further consideration.

[37] Should the matter return before me, Aviva will need to consider whether a better evidentiary record is required. More particularly, if Aviva maintains its position that questioning Ms. Ebhodaghe about the details of her address and whereabouts is relevant to the issues it needs to decide in relation to the policy of insurance, it is free to explain why this is so.

[38] In addition, and to be perfectly clear, I find that the documentary requests relating to cell tower and banking records are neither remotely reasonable nor appropriate and I decline to order any such documentary production.

[39] The application for the order compelling attendance at the examination and for the production of banking and cell phone records is dismissed, without prejudice to Aviva returning the application before me should it require an order compelling Ms. Ebhodaghe to attend the examination. In order to preserve jurisdiction over the issue, I am prepared to adjourn the portion of the application seeking an order for attendance sine die, returnable before me on notice, if required.

[40] In terms of costs, I find that Aviva’s conduct in requesting entirely disproportionate and invasive documentary production ultimately prompted Ms. Ebhodaghe’s decision to disengage with the process. Given the nature of the requests, she can hardly be faulted.

[41] Ms. Ebhodaghe is entitled to costs. She was unrepresented on the motion but had initially retained counsel to assist her in responding to the requests. The retainer ended as Ms. Ebhodaghe was unable to afford counsel.

[42] While I do not have a bill of costs on behalf of Ms. Ebhodaghe, I note that Aviva has filed a bill of costs seeking approximately $2,800 all-inclusive on a partial indemnity basis.

[43] Costs are fixed at $750 all-inclusive payable to Ms. Ebhodaghe within 30 days.

J. Di Luca J.

Date: November 4, 2021