The Legal Basis For Examinations Under Oath In Ontario

An Examination Under Oath is not a courtesy — it is a legal obligation, written into the Insurance Act, its regulations, and the policy itself. Insurers do not need permission to request one, and in most cases, insureds do not have the option to simply refuse. Understanding where that right comes from, and where it ends, matters just as much as knowing how to answer the questions.

This article looks at the legal framework behind the Examination Under Oath (EUO): the statutory conditions that create it, and the Ontario case law that defines its limits.

The insurer’s right to demand an EUO does not come from the policy wording alone. It is written into Ontario’s insurance regulatory scheme in three places, depending on the type of claim:

Property insurance — Section 148 of the Insurance Act, R.S.O. 1990, c. I.8, incorporates statutory conditions into every property insurance contract, including a duty to give proof of loss under oath, if required.

Automobile insurance — Statutory Condition 6(4), under Statutory Conditions — Automobile Insurance, O. Reg. 777/93, requires the insured to submit to an examination under oath and produce all relevant documents.

Accident benefits — Section 33 of the Statutory Accident Benefits Schedule, O. Reg. 34/10, gives the insurer the right to compel an EUO from a person claiming benefits, subject to certain notice requirements.

Because these conditions are deemed to be part of the insurance contract by operation of statute, refusing to comply is not simply refusing a request. It is a breach of a condition of coverage.

 

The leading authority on the scope of the EUO is the Ontario Court of Appeal’s 2007 decision in Baig v. The Guarantee Company of North America. The insured argued that once litigation had started, or was threatened, the insurer’s EUO right became redundant — the insurer could simply examine the insured for discovery within the lawsuit itself.

The Court of Appeal disagreed.

It held that Statutory Condition 6(4) does not cease to operate once the relationship between insurer and insured becomes adversarial, or once litigation is commenced. The scope of the examination extends to all matters material to the insurer’s liability, and the extent of that liability, which the insurer has an objective and reasonable basis to explore.

The Court added an important limit, however: the statutory examination is not meant to allow insurers to conduct baseless reviews, or, in the Court’s words, to “embark on fishing expeditions or take blind shots in the dark.”

That limiting principle — an objective and reasonable basis, not a fishing expedition — has shaped every EUO dispute in Ontario since.

A separate line of cases asks a narrower question: how much explanation is an insurer required to give before it can compel an EUO?

Under the SABS, an insurer must give advance notice of “the reason or reasons for the examination.” In Aviva Insurance Company of Canada v. McKeown, several accident benefits claimants argued this meant the insurer had to provide a genuine justification, not a boilerplate reference to entitlement.

The Ontario Court of Appeal disagreed. It held that “reason” does not mean “justification,” and that requiring insurers to defend their decision to conduct an EUO in advance would undermine the purpose of the provision, which the Legislature designed as a cost-control mechanism within the accident benefits regime. An insurer need only identify the general subject matter of the examination — not prove, in advance, that the examination is warranted.

For claimants, the practical effect is significant. A generic notice referencing entitlement to benefits will usually satisfy the insurer’s obligation. Refusing to attend on the basis that the reasons given are too vague is rarely a winning position on its own.

In Aviva Insurance Company of Canada v. Ebhodaghe, the insurer sought to compel an insured to attend an EUO and to produce six months of banking records, including retailer location data, after suspecting she had misrepresented her city of residence on a stolen vehicle claim. The Superior Court refused the motion. The Court held that the insurer had not established an objective and reasonable basis for suspecting fraud, and that even if it had, the scope of the requested production went well beyond what the claim required.

The decision is a direct application of the limiting principle from Baig: a statutory right to investigate is not a licence to conduct an open-ended inquiry into an insured’s personal life. Where an insurer cannot point to a genuine, evidence-based reason connecting the request to the claim, the court will not compel compliance.

The consequences of non-compliance depend on the type of claim, but none of them are favourable to the insured.

Under the SABS, an insurer is entitled to suspend payment of accident benefits for the period during which the claimant fails, without reasonable explanation, to attend a properly noticed EUO. The obligation to submit to an EUO is a condition of the policy itself — non-compliance gives the insurer grounds to resist the claim on that basis, in addition to whatever the underlying merits may be.

In practice, this means a dispute over the scope or fairness of an EUO request should rarely be resolved by simply not showing up. The stronger position, where the request genuinely overreaches, is the one taken in Ebhodaghe: put the insurer to its proof, and let a court decide whether the examination or production sought is properly connected to the claim.

Taken together, this case law tells insureds two things at once: attendance at a properly noticed EUO is close to mandatory, and the scope of that examination is not whatever the insurer decides it to be.

Knowing the difference is where legal representation earns its value. Counsel who understands the Baig standard can object, on the record, to questions or document requests that fall outside matters material to the insurer’s liability. Counsel who understands McKeown will not waste time contesting a notice merely because it uses general language. Counsel who understands Ebhodaghe knows when a production demand has crossed from investigation into fishing expedition, and when it is worth resisting.

Handled without that context, an EUO becomes a one-sided event, with the insured answering whatever is asked on the assumption that everything must be answered. 

For a practical, step-by-step guide to preparing for an EUO, see our companion article, Examination Under Oath: How To Prepare.

If your insurer has scheduled an Examination Under Oath, or is seeking documents or information you believe go beyond the scope of your claim, our insurance litigation team can advise you on your rights and represent you through the process. Contact Pinto Shekib LLP at 416-901-9984 or info@pintoshekib.ca.