In this significant procedural decision on the right to an Examination Under Oath (EUO), Justice Charles Hackland of the Ontario Superior Court of Justice, has ruled that an insurer must provide “reasonable advance notice of the reason or reasons for the examination” as a “condition precedent to the insured’s obligation to attend under section 33(4)3 of the schedule”.

Justice Hackland went on to say that the reasons given must be “something more than determining entitlement to benefits”. In this case, involving seven catastrophically injured claimants, the judge found that State Farm’s notice was inadequate and that the claimants were not required to attend the EUO. The judge found that the obligation to inform the insured of the specific reason for the EUO was “reflective of the good faith obligations owed by an insurer and an insured in contracts of insurance….”.

This decision overrules the recent FSCO decision by an arbitrator in Kivell v State Farm.

L Craig Brown of Thomson Rogers was counsel to the claimants’ lawyer Miryam Gorelashvili.

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