Stanley R. Holt v. Zurich Insurance Company, 1995 ONICDRG 65

ONTARIO INSURANCE COMMISSION

Neutral Citation: 1995 ONICDRG 65 File No. A-010371

BETWEEN:

STANLEY R. HOLT Applicant

and

ZURICH INSURANCE COMPANY Insurer

DECISION ON PRELIMINARY ISSUE

Issues:

The Applicant, Mr. Stanley Holt, was injured while driving his father's motor vehicle on March 27, 1993. He applied for weekly benefits pursuant to Ontario Regulation 672[1], from Zurich Insurance Company ("Zurich"), the Insurer of his father's motor vehicle, however, his application was denied.

Zurich took the position that while Stanley Holt had his father's permission to drive the automobile, he was not authorized by law to drive it and therefore was prohibited, by section 17(1)(d) of the Schedule from receiving weekly benefits.

The parties were unable to resolve their differences through mediation and the Applicant applied for arbitration under the Insurance Act, R.S.O. 1990, c.I.8, as amended (the "Act"). A pre-hearing conference was held on November 29, 1994, at which time the parties agreed to proceed by way of an agreed statement of facts and written submissions.

The preliminary issue before me is:

1. Is Mr. Holt eligible for weekly benefits, or is his claim barred by section 17(1)(d) of the Schedule?

2. The Applicant also claims his expenses incurred in the arbitration.

Result:

1. Mr. Holt is barred from receiving weekly benefits by reason of section 17(1)(d) of the Schedule.

2. The Applicant is entitled to his expenses of this arbitration.

Hearing:

The preliminary issue was dealt with by way of an Agreed Statement of Fact and written submissions, as well as later oral submissions. Submissions on behalf of the Applicant, Stanley Holt, were received by the Ontario Insurance Commission on February 9, 1995, and submissions by the Insurer were received on February 24, 1995. The Agreed Statement of Fact, with attached documentation, was received on March 3, 1995. Oral submissions were made on May 12, 1995.

The Facts:

The parties have filed an Agreed Statement of Fact. In light of its brevity and importance, I set it out in its entirety.

AGREED STATEMENT OF FACT

1. The insurer provides a policy of automobile insurance to Stanley H. Holt, the father of the applicant, under policy number AP0797628.

2. The applicant was the driver of a vehicle insured pursuant to the policy on March 27, 1993.

3. The applicant has applied for weekly benefits under the Statutory Accident Benefits Schedule. The application is denied by the insurer who states that the insured was not qualified to drive and therefore pursuant to paragraph 17(1)(d) of the policy is not entitled to weekly benefits.

4. Stanley R. Holt was born on March 17, 1976. He has at all material times resided with his parents at R.R. #4 Woodstock, Ontario.

5. Stanley R. Holt was charged as a result of an incident that occurred on April 3, 1992 with failing to stop for police. He and some friends were riding dirt bikes in the Oxford Centre area. Stanley possessed a beginner's permit to drive. He did not have a licensed driver with him. He therefore fled the scene when an O.P.P. officer appeared to investigate an apparent complaint of noise. The officer knew Stanley's family and attended at the home where charges were laid.

6. The matter proceeded to court on April 24, 1992.

7. A transcript of the proceedings is attached as Appendix A.

8. It was not clear to Stanley on leaving the courtroom what he would be advised of by mail.

9. Stanley appealed the conviction on May 5, 1992 citing misinformation being given by the charging officer and requesting a new trial and to change his plea to not guilty. The appeal was scheduled to be heard on June 30, 1992. It was actually heard on July 7, 1992. The appeal was dismissed.

10. Stanley's mother found his beginners licence in his pants pocket as she was about to launder them. Mrs. Holt attended at the Ministry of Transportation office in Woodstock with the licence for the purpose of surrendering it sometime in October of 1992. She recalls dealing with a "young woman, blonde with long hair". The woman checked the computer records of the ministry and could find no record of the licence suspension. Mrs. Holt was instructed by the woman to keep the beginner's licence and to return in January to see if the suspension had begun.

11. Mrs. Holt returned to the Woodstock office of the Ministry of Transportation where the same check and the same information was given, that is that it was not under suspension. Stanley was asked by the Ministry official if he wished to apply for a permanent licence. He did and applied for a licence. He attended the Ministry offices to take the required driver's test.

12. In the meantime, Stanley continued to drive with the beginner's licence. On one such occasion, he was driving with his father, a licenced driver, in the front seat. Stanley was stopped by Constable Doug Pearce of the O.P.P. Woodstock detachment. Constable Pearce was angered by the fact that Stanley was driving since he believed his licence to be suspended. Constable Pearce said he would check the computer and if it checked out that there was no record of his suspension, then no action would be taken. Otherwise, Constable Pearce would call. He did not call.

13. On March 17, 1993 a permanent driver's licence was issued to Stanley.

14. The accident occurred on March 27, 1993. No charges of driving while under suspension were laid against Stanley. The motor vehicle accident report is attached as Appendix B.

15. The notice of suspension of licence was apparently prepared on April 02, 1993. It is attached as Appendix C.

16. The Ministry records show the suspension to be effective until May 25, 1995. The record shows the v/susp date as 070792. See Appendix D.

17. The temporary driver's licence is attached as Appendix E.

18. The record of Driver Examination is attached as Appendix F.

19. The permanent licence is attached as Appendix G.

20. Stanley gave a statement to the insurer about the accident and the circumstances of the licence suspension, and obtaining the permanent licence, on April 13, 1993. The notes of the Insurer do not have any record of being aware of the licence suspension issue until advised by Stanley in this interview.

21. The insurer sought a licence report which was received by it on May 18, 1994. It is attached at Appendix H.

22. Stanley sustained multiple major injuries in the accident, including a broken left femur, broken left arm and shattered elbow, arm nerve damage and a minor brain injury, which give rise to the claim for weekly benefits. He suffers from significant depression due to the death of his friend and passenger in the vehicle at the time.

Applicant's Submissions:

Counsel on behalf of the Applicant has taken the position that:

1. Suspension of a driver's licence is an administrative act made pursuant to section 47(1)(e) of the Highway Traffic Act, R.S.O. 1990, c.H.8.

2. Notice of such a suspension must be done in accordance with section 52(1) of the Highway Traffic Act, and that in this particular case the required notice was not sent out by the Ministry until after the date of the accident.

3. The onus for relying on an exclusion in a policy of motor vehicle insurance lies upon the insurer.

4. As long as the insured acted as a reasonable and prudent man to avoid any breach of the statutory conditions of the insurance policy, he is entitled to coverage and the law governing contractual interpretation applies.

5. On the facts of this particular case, Mr. Holt made prudent and reasonable inquiries as to whether his licence was in fact suspended, and having done so, applied and received a valid driver's licence which was in effect at the time of the accident.

Insurer's Submissions:

Counsel for the Insurer made a number of submissions, including:

1. When considering questions involving the validity of a driver's licence and suspensions, one should be aware of the purpose of Part IV of the Highway Traffic Act which governs the issuing and suspending of drivers' licences. More particularly, he drew attention to section 31 of the Highway Traffic Act which states:

2. The purpose of this Part is to protect the public by ensuring that the privilege of driving on a highway is granted to, and retained by, only those persons who demonstrate that they are likely to drive safely.

3. Section 17(1)(d) of the Schedule provides that:

17.--(1) The insurer is not required to pay benefits under subsection 12(1) or 13(1) in respect of a driver of an automobile at the time of the accident,

(d) if the driver was not authorized by law to drive the automobile.

It is submitted that section 17(1)(d) of the Schedule must be read in accordance with the ordinary rules of statutory interpretation and in accordance with the objectives of the Highway Traffic Act as set out in Part IV. Thus, the Insurer argues, the licence provided to Mr. Holt on March 17, 1993 was issued when his driver's licence was suspended and accordingly was issued contrary to the provisions of the Highway Traffic Act and as such was null and void.

3. Section 17(1)(d) of the Schedule provides an absolute bar to persons receiving weekly benefits if they were not authorized by law to drive the automobile. As such, it is unnecessary to determine whether Mr. Holt took all reasonable and prudent steps, or whether he knew or ought to have known that his licence was suspended.

4. In the event that section 17(1)(d) does not provide an absolute bar, then on the facts of this particular case, Mr. Holt did not do what was reasonable and prudent in all the circumstances of this case, and he ought to have known that he was prohibited from driving in accordance with the order of the Justice of the Peace.

Analysis and Conclusion:

In order to determine whether Mr. Holt is barred from receiving weekly benefits due to section 17(1)(d) of the Schedule, it is necessary to determine whether he was authorized by law to drive the automobile in question at the time of the accident. Section 32(5) of the Highway Traffic Act provides:

The Minister may issue a driver's licence to any person who meets the requirements of this Act and the regulations authorizing the person to drive on a highway...

However, if Mr. Holt's beginner licence was suspended on March 17, 1993 when he was issued a permanent licence, he would not have met the requirements of the Highway Traffic Act, in that section 47(3) of the Act states:

A person whose permit licence or certificate is under suspension is not entitled to be issued a certificate, licence or plate portion of a permit, as the case may be.

Accordingly, if the suspension was in effect on March 17, 1993, the licence issued to Mr. Holt on that day would have been void and the exclusion referred to in section 17(1)(d) of the Schedule would apply.

In order to resolve this issue one must first examine closely the section of the Highway Traffic Act under which Mr. Holt was charged and his licence allegedly suspended. A review of the transcript of Mr. Holt's trial held on April 24, 1992, which forms Appendix A of the agreed statement of facts, reveals that he was charged and convicted under sections 216(1), (2) and (3) of the Highway Traffic Act. The applicable sections read as follows:

216(1) A police officer, in the lawful execution of his or her duties and responsibilities, may require the driver of a motor vehicle to stop and the driver of a motor vehicle, when signalled or requested to stop by a police officer who is readily identifiable as such, shall immediately come to a safe stop.

(2) Every person who contravenes subsection (1) is guilty of an offence and on conviction is liable to a fine of not less than $500 and not more than $5,000 or to imprisonment for a term of not more than six months, or to both.

(3) Where a person is convicted of an offence under subsection (2) and the court is satisfied on the evidence that the person wilfully continued to avoid police while a police officer gave pursuit, the court shall make an order suspending the driver's licence of that person for a period of three years, and the suspension shall be in addition to any other period for which the licence is suspended and consecutively thereto. [emphasis added]

It is clear from reading section 216(3), that for this particular offence under the Highway Traffic Act, the court makes the order suspending the driver's licence. It is also clear that this is mandatory rather than permissive, in light of the fact that the word "shall" is used with regard to making the order suspending the driver's licence.

A review of the transcript of Mr. Holt's trial makes it clear that Mr. Holt was advised by the court, pursuant to section 216(4) of the Highway Traffic Act, of the consequences of a conviction:

The Court:Upon the conviction of the offence with which you are now charged, your driver's licence shall be suspended forthwith for a period provided by statute. That period is three years. Do you understand that?

Mr. Holt:Yes sir.

In delivering judgment, the following discussion took place between the Court and Mr. Holt:

The Court: Do you have a driver's license now?

Mr. Holt: I have a beginner's permit.

The Court: Pardon?

Mr. Holt: I have a beginner's permit.

The Court: You'll have to leave it here with the clerk.

Mr. Holt: I haven't got it right now.

The Court: Well, you're going to have to send it in to the Ministry because your licence is now suspended for three years. [emphasis added]

It was submitted, on behalf of the Applicant, that despite the wording of section 216 of the Highway Traffic Act, Mr. Holt's licence was not suspended by the Court but rather was done by way of an administrative act pursuant to section 47(1)(e) of the Highway Traffic Act. This section states as follows:

47(1) The Registrar may suspend or cancel,

(b) a driver's licence; or

on the grounds of,

(e) conviction of the holder for an offence referred to in subsection 210(1) or (2).

Section 210(1) of the Highway Traffic Act states:

A judge, provincial judge or justice of the peace who makes a conviction for an offence under this Act or under any other Act of the Legislature or the Parliament of Canada or any regulation or order made under any of them committed by means of a motor vehicle or street car within the meaning of this Act or a motorized snow vehicle within the meaning of the Motorized Snow Vehicles Act or for an offence under a municipal by-law regulating traffic on the highways, except convictions for offences for standing or parking or the clerk of the court in which the conviction is made, shall forthwith certify the conviction to the Registrar, setting out the name, address and description of the person convicted, the number of his or her driver's licence, the number of the permit of the motor vehicle or the registration number of the motorized snow vehicle, as the case may be, with which the offence was committed, the time the offence was committed and the provision of the Act, regulation, order or by-law contravened.

I am unable to agree with the Applicant's submission that the actual licence suspension in this particular case was performed by the Registrar pursuant to section 47(1)(e). As noted above, section 216(3) is very clear and makes it mandatory that the Court order the suspension of the driver's licence. It would make no sense to give the Court no discretion at all in the matter, pursuant to section 216(3) of the Highway Traffic Act, and then to allow the Registrar the discretion as to whether or not to suspend the licence, as provided in section 47(1)(e).

My view of this is reinforced by the examination of the methods of appeal open to defendants whose licence has been suspended under each section. If, for example, a driver has his or her licence suspended pursuant to section 47(1)(e), then an appeal may be made to the Licence Suspension Appeal Board pursuant to section 50(1) of the Highway Traffic Act. On the other hand, if a driver wishes to appeal a suspension made pursuant to section 216(3), then according to section 216(6), the appeal proceeds through the normal court system. Indeed, in Mr. Holt's case, he did pursue an appeal through the normal court system and it was dismissed.

The Applicant's counsel also suggested that section 47(1)(e) must be given some effect. A careful reading of the Highway Traffic Act suggests that it may well be applicable in many situations, such as when a driver's licence is suspended for other reasons. Nonetheless, the Legislature has in fact set up a separate system to deal with suspensions that occur pursuant to section 216 of the Highway Traffic Act.

The Applicant has also argued that notice of a suspension must be given pursuant section 52 of the Highway Traffic Act, after the Registrar has exercised its discretion and suspended the driver's licence pursuant to section 47(1)(e). Without such notice, the Applicant submits, the suspension is not yet in effect.

It is undoubtedly the case that section 52 does apply to section 47(1)(e) suspensions. The Applicant has submitted cases discussing the requirement of notice in situations, for example, where a driver's licence is suspended for the non-payment of fines (see Prentice v. Co-operators General Insurance Company, 1984 CanLII 6008 (ON HCJ), [1984] I.L.R. 1-1784 (Dist. Ct.) and Cecconi v. State Farm Automobile Insurance Companies, [1991] I.L.R. 1-2775 (Ont. Ct. (Gen. Div.)).

The question then becomes whether the section 52 notice provisions apply to section 216(3) suspensions, and if so, what is the effect of notice or the lack thereof? Counsel for the Insurer, in oral submissions, conceded that section 52 does apply, but maintains that in cases of section 216 suspensions, the notice requirements are of a purely administrative nature, and that non-compliance does not invalidate the suspension.

In considering this question, I note that section 216(4) provides for a notice of suspension in cases where a section 216 suspension is being considered. That section states:

In a proceeding for a contravention of subsection (1) in which the circumstances set out in subsection (3) are alleged and before the court accepts the plea of the defendant, the clerk or registrar of the court shall orally give a notice to the person to the following effect:

"The Highway Traffic Act provides that upon conviction of the offence with which you are charged, in the circumstances indicated therein, your driver's licence shall be suspended for three years."

As I have indicated earlier in my decision, a review of the transcript of Mr. Holt's hearing clearly indicates that he was provided with this notice and was further advised at the end of the hearing that his licence was suspended.

My view that section 216 suspensions are treated differently than section 47 suspensions and the applicable notices applying thereto, is reinforced by an examination of section 211 of the Highway Traffic Act which deals with the actions of the court when a driver's licence is suspended by the judge. Section 211 states:

211(1) In this section, "judge" means a judge, provincial judge or justice of the peace.

(2) Subject to subsection (3), a person whose driver's licence is suspended by a judge or by operation of this Act shall immediately forward the driver's licence to the Registrar.

(3) Where a judge makes a conviction and the driver's licence of the person convicted is suspended by the judge or by operation of this Act, the judge shall take the driver's licence and forward it to the Registrar.

(4) Where a licence consists of a Photo Card and a Licence Card, subsection (2) and (3) do not apply to the Photo Card portion thereof.

It is clear from reading the transcript of Mr. Holt's hearing that the judge did attempt to comply with section 211 by demanding that Mr. Holt surrender his driver's licence to the court immediately. Unfortunately Mr. Holt had not brought his licence to court. Nonetheless the judge did advise Mr. Holt that his licence "is now suspended for three years".

I also point out that section 211(2) explicitly deals with what is to happen when the "licence is suspended by a judge". This reinforces my previously stated view that section 216 of the Highway Traffic Act sets up a different system for suspensions than that in force under section 47 of the Act.

In light of section 211 and the notice provisions under section 216(4) of the Highway Traffic Act, it does not make sense to suggest that a suspension does not take effect until the Registrar exercises his discretion and a notice is sent out pursuant to section 52. Clearly, the Judge, by confiscating the licence pursuant to section 211, is putting into effect the suspension order that has already been made by him. To suggest that a defendant can avoid such a suspension or delay it by not bringing the licence to court does not make sense. Accordingly, I am of the opinion that the notice provisions as set out in section 52, in cases involving section 216(3) convictions, are merely administrative in nature and do not invalidate the suspension. In arriving at this conclusion, I have had the opportunity of reviewing the decisions of Regina v. Ladouceur (1974), 26 C.R.N.S. 312 (Ont. Prov. Ct.), and Regina v. Hardy (1983), 22 M.V.R. 239 (B.C.S.C.), both of which reinforce my view that section 216 suspensions are automatic and that the section 52 notice provisions are simply administrative in nature.

In the event that I am incorrect in my assessment of section 52, the question then becomes whether the notice given by the court in this case was sufficient compliance with section 52.

Section 52 states:

Notice to a person of the suspension of his or her driver's licence is sufficiently given if delivered personally or sent by registered mail addressed to the person to whom the licence was issued at the latest current address of the person appearing on the records of the Ministry and where notice is given by registered mail it shall be deemed to have been given on the fifth day after the mailing unless the person to whom notice is given establishes that he or she did not, acting in good faith, through absence, accident, illness or other cause beyond his or her control, receive the notice.

After reviewing the transcript of Mr. Holt's trial of April 24, 1992, I find that Mr. Holt was given personal notice of his suspension. Not only was he advised prior to pleading guilty that "[u]pon the conviction of the offence with which you are now charged, your driver's licence shall be suspended forthwith for a period provided by statute. That period is three years." Mr. Holt was then asked "[d]o you understand that?" Mr. Holt then responded "Yes sir".

At the conclusion of the trial, the trial judge again made it clear to Mr. Holt that his licence was suspended by stating "Well, you're going to have to send it in to the Ministry because your license is now suspended for three years. Do you understand that? You'll be advised by mail" [emphasis added].

Accordingly, in light of the above, I find that to the extent that notice was required pursuant to section 52 of the Highway Traffic Act, it was provided in this particular case.

The Applicant's counsel has pointed out that written notice was not sent out until April 2, 1993. While this notice was subsequently received by Mr. Holt, it was of an administrative nature and advised Mr. Holt when the suspension would be lifted. While I am mindful of the fact that the notice of April 2, 1993 from the Ministry of Transportation indicates that suspension is for a period of less than three years, I am of the view that this is adequately explained by the fact that part of the suspension was not served pending the outcome of the appeal.

In light of the fact that I have found that Mr. Holt's licence was under suspension at the time that he applied for and received a permanent licence, I conclude that Mr. Holt did not meet the requirements of section 47(3) of the Highway Traffic Act and therefore was not authorized to drive on a highway pursuant to section 32(5) of the Highway Traffic Act. Despite this, however, counsel for the Applicant has submitted that in order to be excluded from receiving weekly benefits pursuant to section 17(1)(d) of the Schedule, there must be evidence that the driver knew or ought to have known that he was not authorized by law to drive the automobile at the time in question or, as the Applicant's counsel also suggested, the test should be whether the Applicant took reasonable and probable precautions to ensure that his licence was not under suspension at the time in question. In support of this proposition, the Applicant referred to a number of cases including Friesen v. The Saskatchewan Government Insurance Office, 1962 CanLII 277 (SK CA), [1962] I.L.R. 1-083 (C.A.); Lesko v. The Manitoba Public Insurance Corporation, 1981 CanLII 2842 (MB CA), [1982] I.L.R. 1-1538 (C.A.); Pilot Insurance Company v. Henshaw et al (1985), 32 A.C.W.S. (2d) 494 (Ont. Dist. Ct.); Cecconi v. State Farm Automobile Insurance Company, [1991] I.L.R. 1-2775 (Ont.Ct.(Gen.Div.)); and Prentice v. Co-operators General Insurance Company, 1984 CanLII 6008 (ON HCJ), [1984] I.L.R. 1-1784 (Dist.Ct.). In response, counsel for the Insurer has submitted that section 17(1)(d) is clear and unambiguous and accordingly is an absolute bar to the Applicant recovering weekly benefits.

I have had an opportunity to review the cases provided by both parties. I am in agreement with the submission made by counsel for the Insurer that the cases cited above are not particularly helpful to the Applicant's case as they deal with the question of whether a named insured violated the statutory condition of the automobile policy. As the Insurer's counsel has pointed out, the result is different where the driver of the vehicle is concerned. Accordingly, in the Cecconi case, the named insured was entitled to be indemnified by the insurer for the damage to his vehicle which occurred when it was being driven by his son, whose licence was under suspension. The son himself, however, was found liable to the insurer due to the fact that he had violated the statutory condition. It is worthy of note that the court found the son to have violated the statutory condition notwithstanding that he had made reasonable inquiries and that he only became aware that his licence was under suspension as a result of the subsequent police investigation.

In light of the above, I am of the view that the statutory condition, section 17(1)(d), is an absolute bar to recovery by Mr. Holt. In this regard I am in agreement with the decision of the trial judge in the matter of Prentice, when he stated:

Mr. Prentice did not know that his policy had been suspended. I am of the view that the statutory condition pleaded by the defendant is an absolute bar to recovery by the plaintiff. If the legislature intended that knowledge of a suspension by the insured was to be considered an element in the statutory condition it would have been very simple to insert the word "knowingly" in the statute. The prohibition is clear and unambiguous and it would seem to mean what it says.

While the Court of Appeal in that case found that there was sufficient evidence that the party ought to have known that his licence would be suspended and therefore did not have to deal with the finding of the trial judge that the statutory condition was an absolute bar to recovery, I find the logic of the trial judge compelling.

In any event, I am persuaded by the facts of this particular case that Mr. Holt did not take all reasonable and prudent steps to ensure that his licence was not under suspension at the time in question. Mr. Holt was advised prior to the highway traffic hearing that his licence could and would be suspended for three years and he was asked if he understood this. He responded that he did. Upon conviction, Mr. Holt was advised that his licence was now suspended for three years. Furthermore, Mr. Holt appealed the suspension and was aware that the appeal was dismissed. Accordingly, despite the later inquiries made by Mr. Holt and his family, I am persuaded that they ought to have been aware that the suspension was in force. Accordingly, I find section 17(1)(d) of the Schedule does apply and Mr. Holt is not entitled to receive weekly benefits.

Expenses

Mr. Holt seeks an award of the expenses he has incurred in this arbitration. An award for expenses may be made under section 282(11) of the Insurance Act, R.S.O. 1990, c.I.8, as amended, which provides as follows:

The arbitrator may award to the insured person such expenses incurred in respect of an arbitration proceeding as may be prescribed in the regulations to the maximum set out in the regulations.

The prescribed expenses and amounts are set out in Ontario Regulation 664, R.R.O. 1990 and in Schedule 1 of the Dispute Resolution Practice Code.

In Ralph McCormick and Economical Mutual Insurance Company, October 2, 1991, OIC File No. A-000139, Senior Arbitrator Naylor discussed appropriate criteria guiding the exercise of an arbitrator's discretion to award an applicant his or her expenses. In that decision she stated, on page 24:

The discretion to award expenses should be exercised, having regard to the intent and purpose of the legislative scheme. The arbitration process has been established under the Insurance Act, as amended, in order to facilitate applicant's access to relatively inexpensive, speedy and informal adjudication of disputes regarding no fault benefits. The discretion to award expenses should be exercised in accordance with this objective, having regard to the individual circumstances of each case.

Accordingly, it is appropriate to award an applicant his or her expenses, unless, in the circumstances of the particular case, it is determined that the application for appointment of an arbitrator was manifestly frivolous or vexatious, or that the applicant's conduct unreasonably prolonged the proceedings.

Having regard to the criteria set out in McCormick, above, I find that Mr. Holt is entitled to an award of expenses, as prescribed in Ontario Regulation 664, and Schedule 1 of the Dispute Resolution Practice Code. I remain seized in the event of a dispute as to the amount of expenses claimed.

Order:

1. Mr. Holt is not entitled to weekly benefits as a result of his injuries arising out of the automobile accident of March 27, 1993.

2. Mr. Holt is entitled to his expenses incurred in respect to the arbitration.

June 7, 1995

M. Guy Jones Arbitrator

Date

APPENDIX A

Documents Before the Arbitrator

Report of the Mediator, dated July 8, 1994.

Application for Appointment of Arbitrator, undated

Response by Insurer, dated October 6, 1994

Agreed Statement of Fact and appendices.

Submissions on behalf of the Applicant.

Submissions on behalf of the Insurer.

APPENDIX B

Cases considered:

Cecconi v. State Farm Automobile Insurance Companies, [1991] I.L.R. 1-2775 (Ont. Ct. (Gen. Div.))

Friesen v. The Saskatchewan Government Insurance Office, 1962 CanLII 277 (SK CA), [1962] I.L.R. 1-083 (C.A.)

Lesko v. The Manitoba Public Insurance Corporation, 1981 CanLII 2842 (MB CA), [1982] I.L.R. 1-1538 (C.A.)

Pilot Insurance Company v. Henshaw et al (1985), 32 A.C.W.S. (2d) 494 (Ont. Dist. Ct.)

Prentice v. Co-operators General Insurance Company, 1984 CanLII 6008 (ON HCJ), [1984] I.L.R. 1-1784 (Dist. Ct.)

Regina v. Hardy (1983), 22 M.V.R. 239 (B.C.S.C.)

Regina v. Ladouceur (1974), 26 C.R.N.S. 312 (Ont. Prov. Ct.)

Ralph McCormick and Economical Mutual Insurance Company, October 2, 1991, OIC File No. A-000139

1Prior to January 1, 1994, Ontario Regulation 672 was called the No-Fault Benefits Schedule. After that date it became the Statutory Accident Benefits Schedule - Accidents Before January 1, 1994. In this decision, the term "Schedule" will be used to refer to Regulation 672.