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New FSCO Decision Limits Timelines for Examination Under Oath for Specified Benefits

NOTE: This arbitration decision was overturned on appeal.  A petition for Judicial Review was filed, but later abandoned. The Financial Services Commission of Ontario (FSCO) has released an arbitration decision that limits an insurer's ability to request an Examination Under Oath in certain cases. In the decision Neil Williams and State Farm Mutual Automobile Insurance Company [FSCO A14-001463], Arbitrator Maggy Murray 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. A specified benefit is an income replacement benefit, caregiver benefit, non-earner benefit, or housekeeping and home maintenance benefit. Section 36(4) of the Statutory Accident Benefits Schedule (SABS), reads as follows (emphasis added):

(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 (and a plain reading of the legislation), 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.

This decision can be read in its entirety by clicking on the link below. Neil Williams and State Farm - Examination Under Oath, Specified Benefit

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