Published in: Insurance Law Newsletter - 12.Sep.17 September 12, 2017

Case Summary: Ontario Court of Appeal rules insurer not required to provide justification for their decision to request an examination under oath

A general statement of the purpose of an examination under oath is sufficient notice under s. 33(2) of the Statutory Accident Benefits Schedule under Ontario’s Insurance Act.

Automobile insurance; Statutory Accident Benefits Schedule; Appeals; Policies and insurance contracts; Rights and duties of insurer; Statutory provisions

Aviva Insurance Co. of Canada v. McKeown[2017] O.J. No. 3482, 2017 ONCA 563, Ontario Court of Appeal, July 4, 2017, R.G. Juriansz, S.E. Pepall and B. Miller JJ.A.

The insurer appealed the application judge’s decision dismissing the insurer’s application seeking a declaration that a justification was not required to compel a person claiming statutory accident benefits to attend an examination under oath under s.33(2) of the Statutory Accident Benefits Schedule O. Reg. 34/10 (“SABS”), a regulation under the Insurance Act, R.S.O. 1990, c. I8.

S.33(2) of the SABS provides that an applicant for SABS benefits “shall submit to an examination under oath” if requested by the insurer. S.33(4) requires an insurer to give the applicant reasonable advance notice of the “reason or reasons for the examination.”  Six applicants for benefits demanded that the insurer provide a “reason” in the sense of a “justification” for its request that they attend examinations under oath.  The insurer refused and brought its application.

The Court of Appeal allowed the appeal and set aside the application judge’s declaration replacing it with a declaration that an insurer is not required to provide a justification for its request that an applicant attend an examination under oath. A general statement of the purpose of the examination under oath that gives the applicant notice of the general type of questions that will be asked was held to be sufficient.

This case was digested by Cameron B. Elder and edited by Steven W. Abramson of Harper Grey LLP. If you would like to discuss this case further, please feel free to contact them directly at or or review their biographies at