Sylvia Corthorn

Following a fatal motor vehicle accident caused by an uninsured driver, a dispute arose between two insurers over the priority of their respective policies in funding the settlement.

The motions judge held that the driver's State Farm Fire umbrella policy, which included an uninsured motorist option, had to respond before the passenger's Royal Insurance O.E.F. 44 family protection endorsement.

The Court of Appeal allowed the appeal, finding that the umbrella policy was not a motor vehicle liability policy under the Insurance Act and was explicitly excess insurance.

Therefore, the passenger's O.E.F. 44 endorsement had to be exhausted before recourse could be made to the umbrella policy.

At a pre-hearing conference, the Motor Vehicle Accident Claims Fund, supported by the applicant, moved to admit transcripts from examinations for discovery in a related tort action into evidence at the upcoming arbitration hearing in lieu of viva voce evidence.

Royal Insurance Company of Canada objected.

The pre-hearing arbitrator dismissed the motion, finding that the hearing arbitrator is in a better position to determine what documentary and viva voce evidence should be heard and to exercise the evidentiary powers under section 15 of the Statutory Powers Procedure Act.

The applicant union applied for certification.

The Board previously found that the union lacked majority support without a disputed membership card and considered ordering a representation vote.

The union requested certification under section 8 of the Labour Relations Act, arguing that the employer's unlawful discharge of a union supporter and involvement in employee statements of desire made a free representation vote unlikely.

The Board found that the employer's unlawful discharge of an employee for union activity would prevent the true wishes of employees from being freely ascertained in a vote.

The Board granted certification under section 8.