Colin MacDonald

Zurich appealed a Superior Court decision that held Zurich and Chubb equally responsible for paying statutory accident benefits to a claimant injured in a rental vehicle.

The claimant initially applied to Chubb, who denied the claim and failed to notify Zurich within 90 days as required by O. Reg. 283/95.

The second arbitrator found Chubb solely responsible for the benefits due to its breaches of sections 2 and 3 of the Regulation.

The appeal judge overturned this, finding the insurers should share responsibility.

The Court of Appeal allowed Zurich's appeal and reinstated the arbitrator's award, holding that the appeal judge erred in treating the insurers as having equal priority under section 268 of the Insurance Act.

The arbitrator reasonably exercised his discretion in requiring Chubb to pay the benefits permanently as a consequence of its breaches.

The appellant, Chubb Insurance Company of Canada, appealed an arbitration decision that held it solely liable for Statutory Accident Benefits (SABS) payments to an injured person, despite Zurich Insurance Company being the actual primary insurer.

The Supreme Court of Canada had previously ruled that Chubb, as the first insurer to receive a misdirected SABS application, was deemed an insurer for the claim.

The Superior Court found that the arbitrator erred by not fully analyzing the interplay between the Insurance Act and O. Reg. 283/95.

The court concluded that both Chubb and Zurich were insurers of equal priority due to the unique circumstances and must share liability 50/50, with each responsible for 2% compound interest for delays attributable to them.

The applicants sought judicial review of an interlocutory decision by the Licence Appeal Tribunal, which had dismissed their motion to disqualify the insurer's counsel and adjuster for alleged conflict of interest and privacy breaches.

The Divisional Court dismissed the application for judicial review as premature.

The court held that absent exceptional circumstances, judicial review of administrative decisions should not be brought until the tribunal proceedings are complete, and the applicants failed to establish that this was a rare case warranting early intervention.