Amanda M. Lennox

The court dismissed Zenith’s appeal of an arbitrator’s decision finding it the priority insurer for accident benefits under Ontario’s Insurance Act.

The decision clarifies that an insurer licensed in Ontario is subject to Ontario’s priority rules for accidents occurring in Ontario, even if the policy was issued elsewhere, due to reciprocal legislative provisions.

The court distinguished Travelers v. CAA and similar cases, emphasizing that territorial overreach does not occur where the accident is in Ontario and the insurer is licensed in Ontario.

The court also addressed the interplay between Ontario and Alberta insurance legislation and the effect of reciprocal undertakings and licensing conditions.

This appeal concerns the interpretation of Ontario's Statutory Accident Benefits Schedules regarding attendant care benefits (ACBs) for a catastrophically injured individual.

The key issues were whether an applicant for ACBs must demonstrate "urgency, impossibility, or impracticability" to claim retroactive benefits under s. 42(5) of the 2010 Schedule, and whether the definition of "incurred" from s. 3(7)(e) of the 2010 Schedule applies to claims arising from accidents predating its enactment (specifically, the 1996 Schedule).

The Court of Appeal found that s. 42(5) relates to the timing of payment, not eligibility, and does not impose a "urgency" test for retroactive claims.

It further held that the definition of "incurred" in the 2010 Schedule does not apply to claims governed by the 1996 Schedule, based on a careful reading of the transitional provisions.

The appeal was allowed, entitling the applicant to retroactive ACBs without substantiation under the 2010 Schedule's "incurred" definition.

The appellant insurer appealed an arbitrator's decision in two priority disputes regarding liability for statutory accident benefits (SABs).

In both cases, the appellant had issued motor vehicle liability policies that were later reduced to comprehensive coverage without the use of the prescribed OPCF 16 form, and subsequently renewed.

The arbitrator held that the failure to use the prescribed form meant the policies continued as motor vehicle liability policies with SABs coverage.

The Superior Court of Justice dismissed the appeals, affirming that an insurer can only eliminate SABs coverage by cancelling the existing policy and issuing a new non-liability policy, or by using the mandatory OPCF 16 form.