Barry Sullivan

The respondent pedestrian was struck and injured by a backhoe in a construction zone.

She claimed statutory accident benefits under her personal automobile insurance policy with the appellant.

The appellant denied coverage, arguing the backhoe was not an 'automobile' under the Insurance Act or the Statutory Accident Benefits Schedule.

The arbitrator found the backhoe was an automobile.

On appeal, the Director's Delegate upheld the decision, finding that the broad definition of 'automobile' in section 1 of the Insurance Act, which includes self-propelled vehicles, applied and was not ousted by section 224(1).

Lambton Mutual appealed an arbitration order finding it responsible for paying statutory accident benefits to an injured passenger.

Lambton Mutual argued its policy was void ab initio because the named insured misrepresented her ownership of the vehicle, meaning she had no insurable interest.

The Director's Delegate dismissed the appeal, holding that while misrepresentation of ownership may invalidate coverages based on ownership, it does not render the entire policy void ab initio.

An innocent third party occupant remains entitled to claim accident benefits under the policy.

The applicant was injured in a motor vehicle accident while a passenger in a vehicle insured by Lambton Mutual.

The applicant had no personal motor vehicle insurance.

Lambton Mutual argued its policy was void ab initio due to material misrepresentations by the named insured regarding ownership and principal driver status, and claimed General Accident (the insurer of the other vehicle) should pay the statutory accident benefits.

The arbitrator found that while there was material misrepresentation, the defence of void ab initio is not available against an innocent third party claiming statutory accident benefits, pursuant to section 233(2) of the Insurance Act.

Lambton Mutual was held liable to pay the benefits.