A. OVERVIEW
[1] This appeal is about the nature of the notice an insurer must give in order to exercise its statutory right to examine under oath an applicant who has claimed benefits under the Statutory Accident Benefits Schedule (“SABS”), O. Reg. 34/10, a regulation under the Insurance Act, R.S.O. 1990, c. I.8. Section 33 (2) of the SABS provides that an applicant for SABS benefits “shall submit to an examination under oath” if requested by the insurer. Section 33 (4) 3 requires an insurer to give the applicant reasonable advance notice of the “reason or reasons for the examination.”
[2] Six applicants for benefits demanded Aviva Insurance Company of Canada provide a “reason” in the sense of a “justification” for its request that they attend examinations under oath. Aviva brought an application in the Superior Court for a declaration that a justification was not required to compel a person claiming statutory accident benefits to attend at an examination under oath, and for an order compelling the six applicants to attend examinations.
[3] The application judge dismissed the application and issued a declaration that an insurer must provide a “justification” to compel an applicant for benefits to attend an examination under oath if the insurer requests one pursuant to s. 33(2) of the SABS. She denied Aviva’s request for an order that each of the six applicants for benefits attend for an examination under oath.
[4] Aviva appeals, but only in respect of three of the six respondents to the application. I would allow the appeal, set aside the application judge’s declaration, and replace it with the declaration that an insurer is not required to provide a justification for its request that the applicant attend an examination under oath. I would grant an order that each of the three respondents to the appeal attend an examination under oath.