Williams and State Farm: Examination Under Oath Restricted – A Case Comment

The Financial Services Commission of Ontario (FSCO) has released an arbitration decision that limits an insurer’s ability to request an Examination Under Oath. This is a good decision for injured persons, and one that limits abuse by insurers.

If you’ve been injured and need help dealing with your insurance company, speak to a personal injury lawyer as soon as possible so that you can get the care and benefits you need and deserve.

The decision of Neil Williams and State Farm Mutual Automobile Insurance Company [FSCO A14-001463], considered whether or not an insurer was prohibited from providing a notice of an Examination Under Oath more than 10 business days after receiving an application and completed disability benefit for a specified benefit, such as an income replacement benefit, caregiver benefit, non-earner benefit, and housekeeping and home maintenance benefit.

Section 36(4) of the Statutory Accident Benefits Schedule (SABS), reads as follows:

(4)  Within 10 business days after the insurer receives the application and completed disability certificate, the insurer shall,

(a) pay the specified benefit;

(b) give the applicant a notice explaining the medical and any other reasons why the insurer does not believe the applicant is entitled to the specified benefit and, if the insurer requires an examination under section 44 relating to the specified benefit, advising the applicant of the requirement for an examination; or

(c) send a request to the applicant under subsection 33 (1) or (2).

Section 33 (1) and (2) of the SABS reads as follows:

(1)  An applicant shall, within 10 business days after receiving a request from the insurer, provide the insurer with the following:

1. Any information reasonably required to assist the insurer in determining the applicant’s entitlement to a benefit.
2. A statutory declaration as to the circumstances that gave rise to the application for a benefit.
3. The number, street and municipality where the applicant ordinarily resides.
4. Proof of the applicant’s identity.

(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.

Based on this decision, an insurer must provide notice of an Examination Under Oath for a specified benefit within 10 business days of receiving an application and completed disability certificate, and an insured is not obligated to submit to an Examination Under Oath if notice has not been provided within that time period.

Make sure that insurers do not walk over your rights. They will undoubtedly try to “get away” with an Examination Under Oath outside of the rigid timelines if they can.   Ensure that you have a competent and experienced personal injury lawyer on your side to protect your rights.