October 8, 2009 by Canadian Underwriter
Insurers are under-using s. 33 of the Statutory Accident Benefit Schedule (SABS) to obtain information from an applicant applying for accident benefits.
Joy Stothers of Dutton Brock LLP made the observation at the Canadian Defence Lawyers 2nd Annual Accident Benefits Experts Seminar held in Toronto.
Stothers’ presentation outlined recent case law around the use of s. 33 of the SABS.
S. 33 outlines the duty of an applicant for accident benefits to provide information to an insurer that will allow the insurer to determine whether or not the applicant is entitled to a benefit. The legislation can require an applicant to appear at an examination for discovery under oath.
In tracing the case law, Stothers made reference to Wahidpur and Unifund, an Ontario arbitration, in which the arbitrator said: “..insurers must explicitly and unambiguously advise, amongst other things, the specific consequences of non-compliance [with a s. 33 order to produce information/attend an examination under oath]…
“This must be done… in straightforward and clear language, directed towards an unsophisticated person.”
Stother also referenced Troubitstine and TTC, which clarifies what happens when an applicant submits a good reason for not providing the information/attending the examination might be.
The upshot of Troubitstine is that an insurer has a responsibility to inform a claim applicant that benefits will indeed be paid if the claimant provides a reasonable excuse for not complying with the s. 33 production order.
Based on the above and other case law, Stother said a s.33 notice is an effective tool for an insurer provided that the notice contains the following elements:
• The reason for requiring the information/examination under oath is clear and relevant to a benefit at issue.
• The proposed date for the examination under oath is indicated, at a place convenient for the applicant, and alternative dates are suggested and invited.
• The consequence of failure to provide information or to attend the examination under oath are indicated.
• If the applicant is not represented, the applicant’s right to representation during the examination under oath is clear.
• That benefits will be paid if the applicant has a reasonable excuse for non-compliance.
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