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Insurer entitled to request Examination Under Oath outside 10-day limit; remedy for non-attendance is benefit suspension.
The applicant was injured in a motor vehicle accident and sought statutory accident benefits.
The insurer terminated benefits and later requested an Examination Under Oath (EUO), which the applicant refused to attend, arguing the request was outside the 10-day limit in section 36(4) of the Schedule.
On a preliminary issue hearing, the Arbitrator held that the insurer is entitled to an EUO, as the 10-day limit does not restrict the ongoing right to request one under section 33.
However, following appellate authority, the Arbitrator found she lacked jurisdiction to compel attendance or adjourn the hearing sine die.
The insurer's remedy for non-attendance is the suspension of benefits.
Court reduces requested $13,000 motion costs to $4,000 on proportionality grounds.
Following a defence motion compelling the plaintiff to attend certain defence medical examinations, the court addressed costs after partial success on the underlying motion.
The defendant succeeded in obtaining an order requiring attendance at a vascular surgery examination but not an ophthalmological examination.
Applying s. 131 of the Courts of Justice Act and Rule 57.01 of the Rules of Civil Procedure, the court considered proportionality, complexity, divided success, and the reasonable expectations of the parties.
The defendant’s request for nearly $13,000 in costs was found disproportionate for a one‑hour motion.
The court fixed partial indemnity costs at $4,000 payable by the plaintiff.
Court orders vascular defence medical but refuses ophthalmology assessment.
The defendant brought a motion seeking an order compelling the plaintiff to attend further defence medical examinations with a vascular surgeon and an ophthalmologist in a motor vehicle personal injury action.
The court considered the discretionary authority under s. 105(2) of the Courts of Justice Act and Rule 33.02(2) of the Rules of Civil Procedure governing additional medical examinations.
The plaintiff had not pleaded vision loss and existing expert evidence suggested the visual impairment was unrelated to the accident, making an ophthalmological examination unnecessary and disproportionate.
However, causation of the plaintiff’s significant leg injuries remained a central issue and an orthopaedic expert had raised the possibility of vascular disease, recommending assessment by a vascular surgeon.
The court held that fairness required allowing the vascular examination but not the ophthalmological assessment.
