Canadian Underwriter

Court rules Ontario auto insurer’s request for claimant data ‘unnecessarily invasive’

November 8, 2021   by Greg Meckbach

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An Ontario judge has turned down a request by Aviva Insurance Company of Canada to order a claimant to produce banking records showing the location of vendors from which that claimant had made purchases.

In November, 2020, an Aviva auto claimant told the insurer her car had been stolen in Toronto. The client’s policy indicated she lived in Ottawa.

An Aviva employee called the claimant expressing concerns about the Ottawa address listed on the policy documents.

In Ontario, territory is one major rating variable in personal auto insurance. Some clients pay more than others – all factors being equal – due to their home address.

In the case of Celestina Ebhodaghe, she visits her boyfriend regularly in Toronto, and it was during one of these visits that she says her car was stolen Nov. 4, 2020.

During a phone call in December, 2020, an Aviva employee asked Ebhodaghe for banking information. Aviva said a complete description of each transaction was essential including merchant’s store numbers and locations. Aviva also asked the claimant for her phone records – including data on specific cell towers.

Aviva said this data would assist the insurer in determining where the Ebhodaghe “habitually resides.”

But those requests “are abusive and unnecessarily invasive” of the claimant’s privacy rights, Justice Joseph Di Luca wrote for the Ontario Superior court of Justice in Aviva Insurance Company of Canada v. Ebhodaghe, released Nov. 4.

That court ruling was on a motion by Aviva seeking a court order compelling Ebhodaghe to attend an examination under oath. Aviva also sought a court order compelling the claimant to produce “all documents relating” to her auto theft claim.

During the course of submissions, Aviva’s counsel advised that the insurer was no longer seeking cell tower records. It is now only just seeking banking records.

During the arguments on the motion, Ebhodaghe indicated she understands she is required to attend an examination under oath. Because she has now agreed to attend an examination, Justice Di Luca said he is not prepared make an order requiring the claimant to attend the examination.

“Should her position change, the application can be returned before me for further consideration.”

He also declined to issue a production order for documents.

“Should the matter return before me, Aviva will need to consider whether a better evidentiary record is required,” he wrote.

If the insurer maintains its position that questioning the claimant about the details of her address and whereabouts “is relevant to the issues it needs to decide in relation to the policy of insurance, [the insurer] is free to explain why this is so,” Justice Di Luca wrote.

“Aviva has placed nothing before the court supporting a possible inference or finding that Ms. Ebhodaghe did, in fact, lie in her insurance application.”

Ebhodaghe’s initial interview with Aviva was Dec. 15, 2020. On Dec. 22, 2020, Ebhodaghe forwarded an email from her cell phone provider to an Aviva employee. That email chain indicated that Ebhodaghe requested cell tower data for her phone calls but was advised by her telecommunication carrier that the location data on those calls could not be provided.

Ebhodaghe later received an email from an Aviva supervisor acknowledging that cell tower records could not be provided but reiterated the request for the banking and credit card statements.

Aviva wanted banking and credit card statements for May 15, 2020 through Nov. 4, 2020.

Ebhodaghe later provided bank and credit card statements for Dec. 20, 2020 and Jan. 16, 2021 but Aviva told her they wanted information showing a complete description of each transaction.

In March of 2021, Aviva indicated that the claim could be denied for failure to co-operate. Ebhodaghe had a lawyer at that time who contacted Aviva requesting copies of previous correspondence and suggesting an interest in settling the matter. Aviva wrote to Ebhodaghe’s lawyer requesting she attend an examination under oath. That lawyer later advised he was no longer retained by Ebhodaghe.

Aviva then went to court asking for an order requiring Ebhodaghe to attend an examination under oath and for a production order.

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