Neutral Citation: 1996 ONICDRG 109

OIC A-013683

ONTARIO INSURANCE COMMISSION

BETWEEN:

ALI REZA ADABI-GHOMI

Applicant

and

ALLSTATE INSURANCE COMPANY OF CANADA

Insurer

AND BETWEEN:

ALI REZA ADABI-GHOMI

Applicant

and

WELLINGTON INSURANCE COMPANY

Insurer

DECISION ON PRELIMINARY ISSUE

Issues:

The Applicant, Ali Reza Adabi-Ghomi, was injured in a motor vehicle accident on November 15, 1990. He applied for statutory accident benefits from Allstate Insurance Company of Canada ("Allstate") payable under Ontario Regulation 672.¹ Allstate insures the Applicant's personal vehicle. Allstate contends that Wellington Insurance Company ("Wellington") is responsible for any benefits to which the Applicant is entitled. Wellington insures the taxi-cab the Applicant was driving at the time of the accident. The parties were unable to resolve their dispute through mediation and the Applicant applied for arbitration under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

The only issue in this hearing is:

Which Insurer - Allstate or Wellington - is responsible for paying any statutory accident benefits to which the Applicant is entitled?

Allstate has paid the Applicant certain benefits pending resolution of this dispute. Wellington denies responsibility for the Applicant's claims, but has agreed to indemnify Allstate if I find that Wellington is the Insurer against which the Applicant must have recourse.

The only outstanding entitlement issue is whether the Applicant is entitled to be reimbursed under section 6 of the Schedule for case management services provided by a law clerk employed by the law firm representing the Applicant. In addition, Wellington contends that the Applicant did not file his claim against it within the two year time-limit set out in sections 22 and 25 of the Schedule. These issues will be determined, as necessary, in subsequent hearings.

Hearing:

The hearing was held in North York, Ontario, on January 8, 1996, before me, Nancy Makepeace, arbitrator.

Result:

Allstate is the Insurer responsible for paying any statutory accident benefits to which the Applicant is entitled.

Present at the Hearing:

Applicant's

G. Joseph Falconeri

Representative:

Barrister and Solicitor

Allstate's

James Flaherty

Representatives:

Barrister and Solicitor

Todd McCarthy

Barrister and Solicitor

Allstate's

Mark Potts

Officer:

Wellington's

Mark Sones

Representative:

Barrister and Solicitor

Wellington's

Feroza Bobert

Officer:

There were no witnesses. An Agreed Statement of Facts was filed (Exhibit 1) and Wellington filed two document briefs (Exhibits 2 and 3). The Insurers each filed briefs of authorities. The Applicant was not present at the hearing and took no position on the preliminary issue.

Other documents before the arbitrator are set out in Appendix A to this decision. Cases considered are set out in Appendix B.

The proceedings were recorded by Cheryl Aylward of Quest Reporting.

Evidence and Findings:

The parties agreed to the following facts.

1. The Applicant was injured in an automobile accident on November 15, 1990.

2. At the time of the accident, the Applicant was driving a taxi in the course of his employment as a taxi driver.

3. The taxi was owned by Syed-Mehdi Tabatabii and insured by Wellington under a standard automobile insurance policy (owner's form) with an attached S.E.F. No. 6A (permission to carry passengers for compensation) endorsement.

4. At the time of the accident, the Applicant owned a personal automobile insured by Allstate under a standard automobile insurance policy (owner's form).

5. The Applicant was the named insured on the Allstate policy. The Applicant's name did not appear on the Wellington policy.

In addition to these agreed facts, I accept the following facts, which were not disputed:

6. Wellington charged Mr. Tabatabii a premium of $8,690 for the year beginning May 3, 1990.²

7. In setting the premium, Wellington considered the following factors: the use of the vehicle as a taxi cab; Mr. Tabatabii's claims record on previous taxi policies; the value of the vehicle; Mr. Tabatabii's driving record; the coverages purchased; and the prior claims and traffic convictions of any listed drivers (there were none, in this case).³ Mr. Tabatabii's application for automobile insurance identified no drivers other than himself.⁴

8. Though I was not told what Allstate charged Mr. Adabi-Ghomi on his personal car, I take judicial notice of the fact that personal vehicle premiums are lower than taxi premiums, all other factors being equal.

Positions of the parties:

On behalf of Allstate, Mr. Flaherty submitted that the Applicant was not an "insured person" under Allstate's policy, considering sections 2.2.3(c) (definition of "insured person"), 5.2.2 (iv)(f) (definition of "the automobile") and 5.12(c) (taxi-cab exclusion) of the Ontario Automobile Policy Form 1 ("the policy"). Allstate submitted that these provisions recognize the greater risks involved in driving a taxi-cab as opposed to a personal vehicle. Allstate submitted that since "recovery is unavailable" from Allstate, the Applicant has recourse against Wellington under section 268(2)1.ii of the Act. Allstate relied on my decision in Sittler and Canadian General Insurance Company and Pilot Insurance Company⁵ and Mr. Justice Morin's decision, Warwick et al v. Gore Mutual and State Farm.⁶

On behalf of Wellington, Mr. Sones submitted that the taxi-cab exclusion in section 5.12(c) of the Allstate policy does not apply because the Applicant was not driving "the automobile" (his personal vehicle) at the time of the accident. Wellington submitted that the taxi-cab is not "any other automobile" under section 5.2.2(iv)(f) because that provision is part of the definition of "the automobile" and applies only where coverage is sought under section 2.2.3(a) (the insured person was an occupant of "the automobile"). Wellington submitted that the Applicant, as a named insured injured while the occupant of any other automobile, has recourse against Allstate under section 2.2.3(c) of the policy. Wellington also relied on section 250 of the Act, the decision of Mr. Justice Roberts in AXA Home Insurance Company v. Western Assurance Company,⁷ and a number of arbitration decisions.⁸

Is the Applicant an "insured person" with respect to the Allstate policy?

Section 2.2.3 of the policy provides that "insured person," in respect of a particular motor vehicle liability policy, means:

(a) in respect of accidents in Ontario, an occupant of the automobile,

(c) the named insured, his or her spouse and any dependant of either of them while the occupant of any other automobile, [emphasis added]

Section 2.2.3(a) clearly does not apply in respect of the Allstate policy because the Applicant was not an occupant of his personal car at the time of the accident. However, because he is a named insured on that policy, the Applicant is an "insured person" under section 2.2.3(c) in respect of the Allstate policy if he was an occupant of "any other automobile" at the time of the accident.

The phrase "any other automobile" is defined in section 5.2.2 of the policy. Section 5.2.2 says that for the purpose of accident benefits, '"the automobile,' except where otherwise stated, means" the described automobile, a newly acquired automobile, a temporary substitute automobile, all as defined, and:

(iv) any OTHER AUTOMOBILE: other than the described automobile, which is of a gross vehicle weight of 4,500 kilograms or less, while personally driven by the insured or by his or her spouse if residing in the same dwelling premises as the insured, provided that

(f) the other automobile is not used for carrying passengers for compensation or hire or for commercial delivery at the time of the loss; [emphasis in original]

At first blush, section 5.2.2(iv)(f) seems to mean that the taxi-cab driven by the Applicant does not come within the definition of "any other automobile," in section 2.2.3(c) of Allstate's policy. It would follow, then, that the Applicant is not an insured person under the Allstate policy with respect to this accident. This interpretation is supported by section 5.12(c) of the policy, which is as follows:

The Insurer shall not be liable while,

(c) the automobile is used as a taxicab, ...or for carrying passengers for compensation or hire....

According to Allstate, these two provisions — sections 5.2.2(iv)(f) and 5.12(c) — were intended to ensure that the insurers of personal vehicles are not responsible for claims involving the use of a taxi-cab. This seems a sensible object, since insurers of taxi-cabs charge higher premiums than insurers of personal vehicles in recognition of the greater risks involved.

However, I have concluded that sections 5.2.2.(iv) and 5.12(c) do not apply where the applicant seeks coverage under section 2.2.3(c) of the policy.

I do not accept that section 5.2.2(iv) defines "any other automobile" for the purposes of section 2.2.3(c) of the policy. Section 5.2.2 opens with the words: "'the automobile', except where otherwise stated, means: ... " In contrast, section 5.2.2(iv) does not include any operative words: it does not say, "'any other automobile,' except where otherwise stated, means ..." In my view, this suggests that the definition of "any other automobile" set out in section 5.2.2(iv) applies only where "any other automobile" is a subset of the group, "the automobile." Furthermore, the definition of "insured automobile" set out in section 2 of the Schedule imports by reference the policy's definitions of "the described automobile" (section 5.2.2(i)), "a newly acquired automobile" (section 5.2.2(ii)) and "a temporary substitute automobile" (section 5.2.2(iii)), but it does not refer to the definition of "any other automobile" in section 5.2.2(iv) of the policy:

"insured automobile," in respect of a particular motor vehicle liability policy, means the described automobile and includes a newly-acquired or temporary substitute automobile, all as defined by the policy; [emphasis added]

In the absence of a definition set out in the Act, the Schedule or the policy, I find that the phrase "any other automobile" in section 2(c) of the Schedule and section 2.2.3(c) of the policy, must be given its ordinary unrestricted definition.⁹

A second difficulty with Allstate's reading of these provisions was identified by Arbitrator Asfaw Seife in Movahedi:¹⁰ the definition of "any other automobile" found in section 5.2.2(iv) applies only "while [the automobile is] personally driven by the insured or by his or her spouse." This restriction is not found in section 2.2.3(c) of the policy, or in section 2(c) of the Schedule, both of which cover the insured (the policy) or named insured (the Schedule), her spouse, or her dependant, "while the occupant of any other automobile." This is a significant difference. Allstate's interpretation would mean that if the Applicant and his family were "injured in an accident while passengers in a friend's personal automobile on the way to a family picnic, ... they would not qualify as insured persons under [Allstate's] policy for accident benefits because they were not personally driving this automobile."¹¹ This result is clearly inconsistent with the priority rules set out in sections 268(2), 268(4), 268(5) and 268(5.1) of the Act, which provide that persons involved in a motor vehicle accident have first recourse against their own insurer.

Accordingly, I find that the definition of "any other automobile" set out in section 5.2.2(iv) of the policy has no application to section 2.2.3(c) of the policy, where the phrase must be given its ordinary meaning.

It follows that the taxi-cab exclusion in section 5.12(c) does not apply in this case, because the Applicant was not using his personal vehicle at the time of the accident. I also rely on section 250(1)(c) of the Act, which provides:

250(1)The insurer may provide under a contract evidenced by a motor vehicle liability policy, in one or more of the following cases, that, except as provided in the Statutory Accident Benefits Schedule, it shall not be liable while,

(c) the automobile is used as a taxicab …, [emphasis added]

In my view, this provision clearly states the Legislature's goal of ensuring that the taxi-cab exclusion in section 5.12(c) of the policy does not apply for the purposes of accident benefits. The policy provisions relied upon by Allstate do not refer to section 250 or its provisions.

Allstate relied on the decision of Mr. Justice Morin in Warwick.¹² At page 14 of that decision, Morin J. made the following remarks, with which I agree:

In my view it would be inappropriate to determine the issue on this motion by reference only to the provisions of the Act. While generally it may be said that the plaintiff is an "insured" of State Farm as defined by Section 224 (1) of the Act, to go directly from Section 224 to Section 268 (2) l.i. and conclude that State Farm is liable to pay accident benefits to the plaintiff would be to turn a blind eye not only to a Regulation that was promulgated for the express and exclusive purpose of dealing with accident benefits but also to the specific wording of the policy issued by the insurer.

In my view it would be inappropriate in circumstances such as these to deprive the parties of access to the Regulation and to the actual policy of insurance that has been prescribed by law. In my view in determining matters of conflict between two or more insurers it is incumbent upon the court to consider not only the provisions of the Act but rather the entire scheme of automobile insurance legislation.

The issue in Warwick was whether the adult daughter of the named insured was an "insured person" by virtue of section 224(1) of the Act. She was not a dependant of the named insured but was listed as an occasional driver on his policy. She was not an occupant of the insured automobile under the definition set out in section 2(a) of the Schedule. Morin J. concluded that she was not an "insured person" under section 2(c). The Warwick decision is not inconsistent with my own. In fact, although section 224 was not argued in the case before me, the effect of my decision is to interpret it narrowly, as did Morin J.

In any event, section 227(5) of the Act states:

The Commissioner may approve the form of standard policies containing insuring agreements and provisions in conformity with this Part for use by insurers in general. [emphasis added]

To similar effect is section 268(1) of the Act, which says:

Every contract evidenced by a motor vehicle liability policy, including every such contract in force when the Statutory Accident Benefits Schedule is made or amended, shall be deemed to provide for the statutory accident benefits set out in the Schedule and any amendments to the Schedule, subject to the terms, conditions, provisions, exclusions and limits set out in that Schedule.

The effect of these provisions, which were not at issue in Warwick, is that in case of conflict between the Act and the Schedule, on the one hand, and the policy on the other, the former must prevail.

For these reasons, I find that the Applicant is an "insured person" under the Allstate policy in respect of this accident, and "has recourse against" Allstate within the meaning of section 268(2)1.i. of the Act.

Is the Applicant a "named insured" with respect to the Wellington policy?

Given that the Applicant is both an insured person and a named insured under the Allstate policy, I must decide whether he is also a named insured in respect of the Wellington policy. If he is a named insured under both policies, section 268(5.1) of the Act entitles him to claim benefits from either Wellington or Allstate, whichever he chooses.¹³

The parties agreed that the Applicant's name did not appear on the Wellington policy, and Allstate did not claim that he was Wellington's named insured. I find that the Applicant was not a named insured under the Wellington policy.

However, Allstate submitted that the Applicant was "as if a named insured" under the Wellington policy and is therefore entitled to choose whether to claim benefits from Allstate or Wellington. Allstate relied on my decision, Dorothy Sittler, in which, on similar facts, I held that a cab driver is "as if a named insured" in respect of the fleet policy, by virtue of section 3(1) of the Schedule. Section 3(1) is as follows:

If the insured automobile is made available for the regular use of an individual, whether or not a resident of Ontario, by a corporation, unincorporated association, partnership, sole proprietorship or other entity or is rented to an individual who is a resident of Ontario, this Schedule applies to the individual and his or her spouse and their dependants as if the individual were a named insured. [emphasis added]

Mrs. Sittler initially applied for benefits from the insurer of the taxicab she was driving at the time of the accident. The Applicant in this case claimed and received benefits from Allstate, which insures his personal vehicle. Neither Mrs. Sittler nor the Applicant took a position as to which insurer should be responsible for accident benefits, and no one argued in either case that an insured person's initial choice of insurer is determinative.¹⁴ However, it is worth noting that if section 268 (5.1) applies in this case, it does not mandate that Wellington is responsible for the Applicant's claim. It merely gives the Applicant a choice, which the Applicant, at least initially, has exercised in favour of Allstate.

The Sittler decision has been considered in several arbitration decisions and at least one court decision.¹⁵ None of these decisions has agreed with the conclusion I reached in that case. Having now had the benefit of my colleagues' decisions on this issue, I conclude that section 3(1) of the Schedule does not make the Applicant a "named insured" or "as if a named insured" in respect of the Wellington contract for the purposes of section 268(2) of the Act.

In Sittler, I focussed on the language of section 3(1) of the Schedule, sections 224 and 270 of the Act, and the doctrine of reasonable expectations. The parties made no submissions about the policy provisions, and I did not deal with them in my reasons. Considering the policy provisions together with the relevant provisions of the Schedule and the Act, I am persuaded that the drafters intended a person in the Applicant's circumstances to claim against the insurer of his personal vehicle rather than the insurer of his taxi-cab.

As well as considering the policy provisions, I have also considered the comments of Arbitrators Lawrence Blackman and Eban Bayefsky concerning sections 224(1) and 270. In Crosbie,¹⁶Arbitrator Blackman accepted a narrower reading of these provisions than I had adopted in Sittler:

I find that the purpose of [section 224(1)] and section 270, is to provide equality of entitlement and equality in the right to recovery by insured persons, whether named as policyholders under the policy (and therefore a party to the contract with the Insurer) or not named (and therefore not being a party) ... Those sections allow an individual who is not a party to the insurance contract to take action and to recover from insurers as if such individuals were parties to the contract of insurance.

Arbitrator Eban Bayefsky added the following comments in his Boateng decision:

... sections 224(1) and 270 were designed specifically to circumvent the rules governing privity of contract, thereby enabling unnamed insureds to seek redress from insurers as if parties to a contract. In my view, the legislation was not designed to integrate the treatment of insureds for the purposes of both the Schedule and the priority rules of the Act.

To similar effect is the Commissioner's Bulletin, "Rental Vehicles and the Priority Rules,"¹⁷which was issued shortly after the release of Sittler. The Bulletin includes the following explanation of these provisions:

A named insured is typically the person named in the certificate of insurance as the person with whom the contract of insurance has been made. However, the S.A.B.S. [the Statutory Accident Benefit Schedule - Accidents on or after January 1, 1994] extends the definition for purposes of the regulation to include:

• a person who rents an automobile and the person lives in and is ordinarily present in Ontario; and

• a person for whom an automobile is made available for regular use and the person lives in and is ordinarily present in Ontario (i.e. a company car).

This provision ensures that all these individuals, their spouses and their dependants will be entitled to statutory accident benefits in the event of an accident where they otherwise may not be entitled. They are deemed named insureds for the purposes of the S.A.B.S. However, that does not make these individuals named insureds for the purposes of the application of the priority rules set out in the Insurance Act.

Although the Bulletin says nothing about cab drivers, its reasoning would appear to be equally applicable to them. I am not bound by the Bulletin, but I take note that it tends to support the reasoning of my colleagues. In addition to these reasons, I place some significance on the particular need for certainty in the area of insurer priority.¹⁸

Therefore, I find that section 3(1) of the Schedule does not have the effect of extending the definition of "insured person" or "named insured" for the purpose of section 268 of the Act. Accordingly, the Applicant is a named insured under the Allstate policy, and not under the Wellington policy. Pursuant to section 268(5), the Applicant must claim benefits from Allstate.

Order:

The application against Wellington is dismissed. The hearing will resume with respect to the remaining issues raised in the application against Allstate.

June 28, 1996

Nancy Makepeace

Arbitrator

Date

APPENDIX A

Exhibits:

Exhibit 1:

Undated handwritten document entitled "Agreed Statement of Facts"

Exhibit 2:

Wellington document brief (Tabs 1-5)

Exhibit 3:

Wellington document brief (Tabs 1 -26)

Other documents before the Arbitrator, but not marked as exhibits::

Report of Mediator, dated January 31, 1995

Application for Arbitration, dated March 8, 1995

Response to Application for Arbitration, dated March 27, 1995

Pre-hearing letter, dated August 21, 1995

APPENDIX B

Authorities referred to:

Addai-Agyekum and Coachman Insurance Company and Citadel General Insurance Company(October 13, 1995), OIC A-009690 and A-009691;

Aujla and Progressive Casualty Insurance Company of Canada and Old Republic Insurance Company (March 20, 1996), OIC A-951628 and A-951629;

Boateng and Coachman Insurance Company and Progressive Casualty Insurance Company of Canada (January 3, 1996), OIC A-009571;

Brown and Simcoe & Erie General Insurance Company and State Farm Mutual Automobile Insurance Company (October 10, 1995), OIC A-013989;

Crosbie and Co-operators General Insurance Company and Pilot Insurance Company (October 16, 1995), OIC A-009908 and A-012239;

Movahedi and State Farm Mutual Automobile Insurance Company and Royal Insurance Company of Canada (June 13, 1995), OIC A-006901 and A-008245;

Portch and Markel Insurance Company of Canada and Royal Insurance Company of Canada (March 20, 1995), OIC A-007701 and A-008360;

Ready and Progressive Casualty Insurance Company and Zurich Insurance Company (April 7, 1994), OIC A-005403 and A-004768 (under appeal);

Sittler and Canadian General Insurance Company and Pilot Insurance Company (December 3, 1993), OICA-000951 and A-004495;

Axa Home Insurance Company v. Western Assurance Company, 1994 CanLII 19785 (ON CTPD), [1994] I.LR. 1-3033 (Ont. Ct. Gen. Div.);

Gore Mutual Insurance Company and the Co-operators General Insurance Company (June 9, 1996), Court File No. 93-CQ-046330CM (Gibson J. - Ont. Ct. Gen. Div.);

Warwick et al v. Gore Mutual Insurance Company and State Farm Mutual Automobile Insurance Company (December 12, 1995), Court File No. 5546/92 (R.J. Morin J. - Ont. Ct. Gen. Div.).

268. (4) If, under subparagraph i or iii of paragraph 1 or subparagraph i or iii of paragraph 2 of subsection (2), a person has recourse against more than one insurer for the payment of no-fault benefits, the person, in his or her absolute discretion, may decide the insurer from which he or she will claim the benefits.

(5) Despite subsection (4), if a person is a named insured under a contract evidenced by a motor vehicle liability policy or the person is the spouse or a dependant, as defined in the Statutory Accident Benefits Schedule- Accidents on or Before January 1, 1994, of a named insured, the person shall claim no-fault benefits against the insurer under that policy and, if there is more than one such policy, the person, in his or her discretion, may decide the insurer from which he or she will claim the benefits.

(5.1) Subject to subsection (5.2), if there is more than one insurer against which a person may claim benefits under subsection (5), the person, in his or her discretion, may decide the insurer from which he or she will claim the benefits.

A new provision (5.2) was added by Bill 164, for accidents occurring on or after January 1, 1994:

(5.2) If there is more than one insurer against which a person may claim benefits under subsection (5) and the person was, at the time of the incident, an occupant of an automobile in respect of which the person is the named insured or the spouse or a dependant of the named insured, the person shall claim statutory accident benefits against the insurer of the automobile in which the person was an occupant.

A-004768, there was an issue whether Progressive (which insured the applicant's personal vehicle) could avoid responsibility for paying statutory accident benefits because it had denied liability before the Applicant completed an application for benefits, directing him to claim against Zurich (which insured the cab the Applicant was driving at the time of the accident). I found that the Applicant chose to claim from Progressive. Regulation 283/95, which took effect on May 27, 1995 and does not apply in this case, requires the first insurer that receives a completed application for benefits to pay benefits pending resolution of any dispute about insurer priority.

Footnotes

1. 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.
2. 2Exhibit 2, Tab 4
3. 3Memorandum from Janice Lim, lead underwriter, Facility Unit, to Feroza Bobert, dated September 6, 1995, Exhibit 2, Tab 5.
4. 4Exhibit 2, Tab 1, Application for Automobile Insurance, signed May 2, 1990 by Mr. Tabatabii, at item #14.
5. 5Sittler and Canadian General Insurance Company and Pilot Insurance Company (December 3, 1993 -appeal pending), OIC A-000951 and OIC A-004495.
6. 6Warwick et al v. Gore Mutual Insurance Company and State Farm Mutual Automobile Insurance Company, December 12, 1995, Court File No. 5546/92 (G.R. Morin J. - Ont. Ct. Gen. Div.).
7. 7AXXA Home Insurance Company v. Western Assurance Company (1994), 1994 CanLII 19785 (ON CTPD), 21 C.C.L.I. (2d) 120 (Ont. Ct. Gen. Div.).
8. 8Portch and Market Insurance Company of Canada (March 20, 1995 - appeal pending), OIC A-007701 and OIC A-008360; Movahedi and State Farm Mutual Automobile Insurance Company and Royal Insurance Company (June 13, 1995 - appeal pending), OIC A-006901 and OIC A-008245; Addai-Agyekum and Coachman Insurance Company and Citadel Insurance Company (October 13, 1995 - appeal pending), OIC A-009690 and OIC A-009691; Brown and State Farm Mutual Automobile Insurance Company and Simcoe and Erie General Insurance Company (October 10, 1995 - appeal pending), OIC A-012171 and OIC A-013989; Boateng and Coachman Insurance Company and Progressive Casualty Insurance Company of Canada (January 3, 1996), OIC A-009580 and OIC A-009571.
9. 9Arbitrator Blackman came to a similar conclusion with respect to similar provisions in the Statutory Accident Benefits Schedule — Accidents on or after January 1, 1994 in Aujla and Progressive Casualty Insurance Company of Canada and Old Republic Insurance Company (March 20, 1996), OIC A-951628 and OIC A-951629.
10. 10And by Arbitrator Palmer in Brown and State Farm Mutual Automobile Insurance Company and Erie General Insurance Company and Addai-Agyekum and Coachman Insurance Company and Citadel Insurance Company.
11. 11Movahedi at pg. 9
12. 12See footnote 6
13. 13The choice of insurer provisions of section 268 are as follows:
14. 14Nothing in the Act or Regulations requires an insurer to accept responsibility for paying statutory accident benefits just because it was the first insurer to which an insured person made a claim. In Timothy J.P. Ready and Progressive Casualty Insurance Company and Zurich Insurance Company (April 7, 1994), OIC A-005403 and OIC
15. 15As well as the decisions referred to in footnotes 7 and 8, refer to Harjit Aujla and Progressive Casualty Insurance Company of Canada and Old Republic Insurance Company( March 20, 1996), OIC A-951628 and OIC A-951629 which was released after the hearing. See also Crosbie and Co-Operators General Insurance Company and Pilot Insurance Company (October 16, 1995), OIC A-009908 and OIC-012239.
16. 16See previous footnote
17. 17Bulletin No. 3/94, dated March 2, 1994
18. 18I do not reach this conclusion without misgiving. The interpretation I have adopted makes the personal vehicle insurer responsible for benefits arising out of an accident that occurred while its insured was driving a cab, but the insurer of the taxi-cab, which received the appropriately higher premium, avoids liability. Other arbitrators have also expressed discomfort with this result.