Mark K. Donaldson

This case involves a three-way insurance company priority dispute concerning accident benefits for a minor, Alyssia Lafontaine-Greenwood, who was 17 at the time of her single-vehicle accident.

The dispute, initially decided by an Arbitrator, centered on whether Gore Mutual (father's insurer), Dominion (mother's insurer), or Certas (driver's insurer) had primary responsibility.

The Arbitrator found Alyssia equally dependent on both parents, making Gore and Dominion jointly responsible.

Gore and Dominion appealed this decision.

The court upheld the Arbitrator's finding, applying the "palpable and overriding error" standard of review for mixed fact and law, and affirmed that non-obligatory contributions from a third party (grandmother) should not be factored into the dependency equation.

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.

This appeal concerned an arbitrator's decision regarding priority for statutory accident benefits following a motor vehicle accident.

The dispute was between State Farm Mutual Insurance Company and Her Majesty the Queen in Right of Ontario (representing the Motor Vehicle Accident Claims Fund) over whether two claimants, Latchman Sanichar and Asha Basdeo, were 'principally dependent' on State Farm's insured, Prakash Doodram, for financial support.

The court reviewed the arbitrator's decision on a reasonableness standard.

The appeal was granted in part: the arbitrator's finding that Asha was not principally dependent on Prakash was deemed unreasonable and set aside, making State Farm the priority insurer for Asha.

However, the arbitrator's finding that Latchman was not principally dependent on Prakash was affirmed as reasonable, meaning State Farm was not the priority insurer for Latchman.

The appeal on costs was also granted, with no costs awarded due to divided success.

Two consolidated appeals concerning the standard of review applicable to insurance arbitral decisions resolving priority disputes under the Statutory Accident Benefits Schedule (SABS).

The first appeal involved a claimant listed as an excluded driver on his parents' policy who was injured as a passenger in another vehicle.

The second involved a claimant similarly listed as an excluded driver who was injured while driving an uninsured motorcycle.

The central issue was whether excluded drivers could qualify as "insured persons" under the SABS definition and thus trigger priority coverage under their parents' policies.

The Court of Appeal held that the appropriate standard of review for such arbitral decisions is reasonableness, not correctness, and that arbitrators' interpretations of the SABS and insurance policies within their specialized expertise warrant deference.

The applicant, Zurich Insurance Company Ltd., appealed an arbitration decision that found a collision occurred between vehicles insured by Zurich and The Personal Insurance Company, and ordered Zurich to indemnify The Personal for accident benefits paid.

The arbitrator had found, on a balance of probabilities, that contact occurred, despite an expert report suggesting otherwise, relying on witness statements and identifying deficiencies in the expert report.

The Superior Court reviewed the arbitrator's decision on a standard of reasonableness, finding it was a factual determination.

The court dismissed the appeal, concluding the arbitrator's decision was reasonable and fell within a range of acceptable outcomes.

The insurer applied for a declaration that the respondent pedestrian was not an insured under his mother’s automobile policy because he was not a “dependant” at the time of a catastrophic accident.

The court assessed dependency under the Statutory Accident Benefits Schedule using a functional analysis considering financial support, duration of dependency, needs, and the ability to be self‑supporting.

The evidence showed the respondent remained primarily financially supported by his mother despite attempts to establish independence.

The court further held the insurer was estopped from denying coverage after paying statutory accident benefits for five years while the respondent relied on that assumption and lost the opportunity to pursue benefits against another insurer.

The application to terminate benefits was dismissed.

Intact Insurance appealed an arbitrator's decision dismissing its priority dispute against Federated Insurance regarding accident benefits for a claimant injured in a motor vehicle accident.

The arbitrator found that Intact failed to provide notice of the dispute to Federated within the 90-day period required by s. 3(1) of O. Reg. 283/95, and did not meet the test for relief under s. 3(2).

The Superior Court of Justice upheld the arbitrator's decision, finding no error in the determination that Intact had received a completed application by June 7, 2010, had sufficient time to identify Federated, and failed to conduct reasonable investigations within the 90-day period.

The appeal was dismissed.