An Ontario tribunal ruled that an insured who chose Quebec-level benefits after an out-of-province crash must still attend an examination under oath.
The decision in Aviva Insurance Company of Canada v B.D., 2026 CanLII 59525 (ON LAT), released June 12, 2026, settles a procedural question with real stakes for insurers handling cross-border accident claims.
B.D. was involved in an automobile accident on November 5, 2021, in Quebec, and sought benefits under section 59(2) of Ontario's Statutory Accident Benefits Schedule. That provision lets an insured injured outside Ontario elect either the benefits set out in the Schedule, or benefits "in the same amounts and subject to the same conditions" available where the accident happened - here, Quebec.
B.D. made that election. The fight was over what came next. Aviva argued that although the Quebec benefits applied, the claim still had to be adjusted under the Schedule, which meant B.D. was required to attend an examination under oath. B.D. countered that both the substantive and procedural law of Quebec governed, and because Quebec's Automobile Insurance Act has no mechanism for an examination under oath, she did not have to attend one - or any insurer's examinations.
Adjudicator Tami Cogan sided with the insurer. She found that an election under section 59(2) adopts Quebec's substantive law - the benefits themselves - but leaves the procedural law of the Schedule in place to govern how the claim is adjusted.
Drawing on the Supreme Court of Canada's decision in Tolofson v. Jensen, Cogan reasoned that substantive law follows the place of the accident, while procedure stays tied to the forum hearing the dispute. She applied a pragmatic test: legislation counts as procedural only when that classification is free of doubt, and any doubt is resolved in favour of treating it as substantive.
The dispute turned on a single word. Aviva read "conditions" as describing the benefits; B.D. read it as importing Quebec's procedures. Cogan found the conditions were substantive, pointing to the accident benefits rather than the process by which a claim is adjusted.
Both sides had leaned on J.W. v. Wawanesa Insurance. Cogan distinguished it, noting that the earlier dispute concerned the amount of a benefit, not procedure, so it did not decide the question before her.
B.D. also won a separate motion to anonymize the decision. Because the reasons disclose details about medical and mental health conditions, the tribunal published the ruling using initials only, applying the test from Sherman Estate v Donovan.
The result confirms that a section 59(2) election adopts another province's benefits but not its claims procedures. Because the Schedule continues to govern the adjustment, the examination under oath and insurer's examinations remain part of the process.
