Effective
Examination under Oath
under the New Section 33 of the SABS
By
Lee Akazaki
On
July 2, 2003, section 33 of the Statutory Accident Benefits
Schedule under Bill 59 was amended by O.Reg. 281/03 under the
Insurance Act. The new additions to section 33 provide for examination
of the A.B. claimant under oath. Although there has been some
tinkering with the DAC system, section 33 appears to be the
only reform which truly and directly addresses the issue of
accident benefit fraud. Adjusters dealing in damage and theft
claims are familiar with a similar provision permitting examinations
under oath, contained in the Statutory Conditions of the Ontario
Standard Automobile Policy. Such examinations have proven to
be an invaluable method of combatting fraud in total loss claims.
A.B. adjusters will now have the same right to examine SABS
claimants whom they suspect may be advancing fraudulent or exaggerated
claims.
In
our legal system, cross-examination is the principal method
of testing the credibility of any assertion of fact. But lawyers
do not hold a monopoly on the art of cross-examination. Anyone
involved in a profession which trades in information employs
cross-examination techniques as part of his or her work. Often
without realizing it, parents cross-examine young children to
get a point across. The amazing feature of a legal entitlement
to cross-examine is that it allows the insurer’s representative
to defy the suspected fraud or malingerer to fill in for themselves
the factual or logical gaps in their stories. The examination
under oath empowers the adjuster by allowing cross-questioning
in circumstances where lying can carry sanctions for perjury.
If it is always seen as instrument of determining the truth,
it is invariably useful. If it is misused, either as a means
of embarrassing or intimidating the examinee, it is often ineffective
and can make dispute resolution harder to achieve. The following
three points are by no means meant to be a primer on cross-examination.
However, I do find it useful to abide by them so that some questions
come by second nature.
Know Your
Legal Boundaries
There is nothing more disruptive to a cross-examination than
a debate with the claimant’s representative or lawyer
over what you can or cannot ask. Prior to the examination, disputes
as to the venue of the examination can drive up costs and cause
delay. Even if you get comfortable enough to push the boundaries,
you still have to know what the boundaries are. It is essential
to read the rules allowing the examination. The new subsections
to section 33 read:
“(1.1)
If requested by the insurer, a person who applies for a benefit
under this Regulation as a result of an accident shall submit
to an examination under oath, but is not required to,
(a) submit to
more than one examination under oath in respect of matters
relating to the same accident; or
(b) 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.
“(1.2)
A person is entitled to be represented at his or her own expense
at the examination under oath by such counsel or other representative
of his or her choice as the law otherwise permits.
“(1.3)
The insurer shall make reasonable efforts to schedule the
examination under oath for a time and location that are convenient
for the person and shall give the person reasonable advance
notice of the following:
1. The date
and location of the examination.
2. That the
person is entitled to be represented in the manner described
in subsection (1.2).
3. The reason
or reasons for the examination.
4. That the
scope of the examination will be limited to matters that
are relevant to the person’s entitlement to benefits.
“(1.4)
The insurer shall limit the scope of the examination under
oath to matters that are relevant to the person’s entitlement
to benefits under this Regulation. (Emphasis added)
In Ontario, only
official examiners are licensed to administer oaths and to give
official transcripts of examinations. Arrangements can be made
by booking an appointment with an official examiner’s
office.
Care must be taken to avoid unfairness to the examinee which
may result in the information being inadmissible, should the
dispute lead to litigation or arbitration. For example, section
20 of the Evidence Act stipulates that witnesses may be cross-examined
on prior written statements only after the relevant part of
the document is put to the witness. Section 21 also provides
that if a witness, on cross-examination on a prior oral statement,
does not admit to having made the statement, independent proof
may be given that the witness had in fact made it. However,
before such proof is given, the circumstances of the prior statement
must be mentioned to the witness, and he or she must be asked
whether he made such a statement. In practice, this means you
may want to leave it open for the insurer to use the transcript
to undermine the claimant’s credibility at the arbitration
or trial, by calling a witness to prove the claimant made a
prior statement inconsistent with the answer given at the section
33 examination. In order to do this, a full account of the prior
statement must be disclosed to the claimant during the examination
under oath.
Both of these statutory constraints reflect good examination
technique and common sense. Failure to observe them will jeopardize
the later admissibility of the statement at trial or arbitration,
or the weight that may be given to the apparent contradiction.
Moreover, failing to allow the examinee to confront the prior
statement, made in writing or to another, invariably opens an
escape route and renders the examination ineffective.
One Fact
at a Time
Concentrating on one fact at a time is the most effective method
of blocking escape. Try to imagine a room with many doors, but
only one which leads to the next room you want the examinee
to enter. The only way to get the examinee through that door
is to frame the question simply and precisely and to control
what the question means. If the question involves more than
one discrete thought or is ambiguous, you leave it open to the
examinee to start defining the terms. If you make this mistake,
apologize to the examinee and rephrase the question in a simpler
form. Use this to rein in the examinee. Tell the examinee that
it was your mistake in phrasing the question. Humility and an
open-minded approach will allow you to pursue the same question
several times. Keep simplifying the question until the examinee
is required to answer the question you want answered. Only then
should you move on, and open the door into the next room. The
next room has the same setup, of course, and you have to keep
blocking off escape routes. The simpler the fact you want to
establish, the more difficult for the examinee to evade your
question. Each successive passage from one room to the next
leads closer to the core issue you want addressed, but on your
terms.
Set up
Goals
Two big mistakes that you see even some experienced trial lawyers
make are, on the one hand, to live in dread of tipping one’s
hand or, on the other, to leap straight into the main issue
with the expectation that the witness will confess all. It is
often good for the examinee to know exactly where you are going:
that is precisely the way to make a liar sweat. Just make sure
to slow them down if they say “I know where you’re
going with this.” Don’t lose control of the examinee
by taking him up on the invitation to “cut to the chase.”
You know you have got his attention, especially if he starts
to read your notes from across the table. Once you have the
moment of recognition, the examinee will actually be more easily
led to where you want him. But you have to get there on your
own terms. What happens once you get there is determined in
large part by how you got there in the first place. Remember,
the examiner wants to maintain control, and the examinee wants
escape.
Control of an examinee under oath has to be maintained by encouraging
the examinee to answer the affirmative to as many truthful answers
as you require to encircle the examinee with “little”
facts and admissions which close off areas of ambiguity. The
smaller the facts, the less the examinee is likely to escape,
or to make a speech. On every issue, cut off escape routes along
the perimeter with answers to simple, undisputed facts and move
by increments to the core facts which are in dispute. If the
examinee is brought to the main issue on your terms, it does
not matter whether or not they knew your strategy from the outset.
Actively hiding your plan from the examinee is difficult if
you have a good, logical plan. A “clever” or deceptive
plan will come across as such, and distracts the examiner from
the main task of securing answers to the questions.
Examination under
oath can be effective if your ultimate goal is to have specific
questions answered. Treat each one of these questions as a specific
goal, and employ the technique of controlling the questions
from scratch to each one of them. You will find that proceeding
by careful increments toward defined questions may involve more
preparation and patience, but takes much less time than an examination
bogged down in arguments over fairness and procedure. In the
context of an insurer’s examination under s. 33 of SABS,
the right to hold the examination does not remove the duty to
act in good faith. Where fraud or malingering is suspected,
the reason for the suspicion is that you may have unsatisfactory
or unresolved questions. Consequently, goal-oriented cross-examination
is entirely consistent with keeping an open mind. Your use of
basic control techniques does not mean you need to or can get
the examinee to give you the answers you want. Rather, these
techniques are essential to getting the examinee to answer the
questions you want him or her to answer.
2003
© R. Lee Akazaki received his B.A. and LL.B. from the University
of Toronto, and practices law with Gilbertson Davis Emerson
LLP, Barristers and Solicitors. He is certified by the Law Society
of Upper Canada as a Specialist in Civil Litigation. |
