Jason R. Frost

This appeal addressed whether Harmonized Sales Tax (HST) on attendant care benefits was included within the statutory maximums under the Statutory Accident Benefits Schedule (SABS) for accidents occurring before June 3, 2019.

The appellant (insured) argued that HST should be payable in addition to the maximums, while the respondent (insurer) contended it was part of the maximums.

The Court of Appeal upheld the Divisional Court's decision, finding that the relevant SABS provisions were unambiguous and that HST constituted a "reasonable and necessary expense" included within the $6,000 monthly and $1,000,000 total maximums for attendant care benefits.

The court emphasized that the same words in a statute must be given the same meaning throughout.

This appeal addresses a priority dispute between insurers regarding Statutory Accident Benefits (SABS) where the claimant had basic mandatory SABS coverage from one insurer (Chubb) and both basic mandatory and optional enhanced SABS coverage from another (Continental).

The Superior Court Appeal Judge (SCAJ) had found the claimant was not a "deemed named insured" under Continental's policy, making Chubb the priority insurer for basic SABS, but still held Continental liable for all SABS under an OPCF 47 endorsement, ordering Chubb to reimburse Continental for basic SABS.

The Court of Appeal upheld the SCAJ's finding that the claimant was not a "deemed named insured" under Continental's policy, clarifying that "regular use" requires actual use, not just theoretical access.

However, the Court of Appeal reversed the SCAJ's decision on reimbursement, holding that the OPCF 47 endorsement displaces the statutory priority rules (s. 268 of the Insurance Act) for the optional benefits insurer, meaning Continental, as the OPCF 47 insurer, is solely responsible for both basic mandatory and optional enhanced SABS without a right to reimbursement from Chubb.

Peter Ekstein was catastrophically injured as a pedestrian.

He had a personal auto policy with Chubb and was the owner/CEO of a company with an auto policy (including optional enhanced benefits and OPCF-47 endorsement) with Continental Casualty Company (CNA).

Chubb began paying statutory accident benefits (SABS) but served a priority notice on CNA.

An arbitrator found CNA to be the priority insurer, deeming Ekstein a "named insured" under the CNA policy due to "regular use" provisions.

CNA appealed.

The Superior Court found the arbitrator erred in deeming Ekstein a "named insured" under the CNA policy, as he never actually used company vehicles.

However, due to the OPCF-47 endorsement, CNA was still obligated to pay both mandatory and optional SABS benefits to Ekstein.

The court clarified that the OPCF-47 endorsement does not alter priority rules between insurers, entitling CNA to reimbursement from Chubb for the mandatory SABS benefits and associated administration costs.

The applicant and respondent insurers were engaged in a priority dispute regarding statutory accident benefits.

Following the death of the original arbitrator, the parties could not agree on a substitute.

The applicant brought an application under the Arbitration Act, 1991 to appoint a new arbitrator.

The court appointed the applicant's proposed choice, the Honourable Douglas Cunningham, finding that the dispute involved novel legal arguments and issues of deflection, making an arbitrator with extensive judicial experience preferable to one with specialized insurance adjusting experience.

The appellant, Unifund Assurance Company, sought judicial review of an arbitration award that found its vehicle to be the "striking vehicle" under the "transmission of force" doctrine, making it responsible for a pedestrian's accident benefits.

The Superior Court reviewed the arbitrator's application of the legal principle of transmission of force, particularly in the context of two moving vehicles.

The court found that the arbitrator erred by not applying the reasoning from Trahan v Royal Insurance Co. of Canada, concluding that the ACE vehicle, despite being deflected, maintained its own independent force and propulsion.

Consequently, the court set aside the arbitration decision, finding ACE INA Insurance Company to be in highest priority and responsible for the claimant's statutory accident benefits, and ordered ACE to reimburse The Personal Insurance Group.