Court Considers Scope of Insurer’s Examination Under SABS

In three separate applications that were heard together, Madam Justice Elizabeth Stewart of the Superior Court ruled on the scope of an insurer’s examination under oath of a statutory accident benefits claimant. Such examinations are authorized by s. 33(1.1) of the Statutory Accident Benefits Schedule.

The main application was Aviva Insurance Company of Canada v. Balvers. (The same reasons also applied to the other two applications before Stewart J., both of which had been brought by Allstate Insurance.)

In the Balvers case, the motor vehicle accident had happened on August 18, 2005. The claimant (who had been struck while riding a bicycle) applied to Aviva for statutory accident benefits. He claimed that his injuries prevented him from working but provided no details about his employment. He claimed income replacement benefits.

Aviva asked the claimant to submit to an examination under oath. Before the examination had taken place, Balvers had commenced a tort action against the driver of the car that had struck him.

When the examination under oath was finally held, counsel for Aviva was met with a string of refusals on the part of counsel for the claimant. The refusals were in response to questions pertaining to Balvers’ address, particulars of his employment, what collateral benefits he had applied for and what medical treatment he had received. It appears that the basis of the objection was that Balvers’ counsel didn’t consider the requested information to be relevant.

In addition, counsel for the insured took the position that because a tort action had been commenced and his client would be required, in that suit, to submit to an examination for discovery, Aviva no longer had the right to conduct an examination under the Statutory Accident Benefits Schedule.

Aviva applied in Superior Court for a determination of its rights under s. 33(1.1) of the SABS. Justice Stewart rejected the insured’s argument and found for the insurer.

Her Honour noted that the only restriction on the right to a SABS examination under oath is that it must be confined to “matters that are relevant to the person’s entitlement to benefits under this Regulation”. She held that the section of the SABS obliges a claimant to be forthcoming with the insurer:

If the purpose of the swift payment of no-fault benefits under the Schedule is to be furthered, I consider that fairly full disclosure by a claimant must be made if benefits are to be assessed and received. This is particularly so in light of the fact that the insurer may conduct only one such examination, and its scope is described in fairly broad terms.

Her Honour went to find that the commencement of a tort action was irrelevant to the entitlement of the accident benefits insurer to an examination under oath, saying, “I consider that both entitlements may co-exist in harmony.”

The claimant was ordered to re-attend Aviva’s examination under oath and to answer all relevant questions put to him.

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