Neutral Citation: 1996 ONICDRG 191

OIC A95-000120

ONTARIO INSURANCE COMMISSION

BETWEEN:

CAPILDEO BISSOON

Applicant

and

PILOT INSURANCE COMPANY

Insurer

DECISION

Issues:

The Applicant, Capildeo Bissoon, was injured in a motor vehicle accident on January 29, 1993 (the "accident"). He applied for statutory accident benefits from Pilot Insurance Company ("Pilot"), payable under Ontario Regulation 672.¹ Payment of statutory accident benefits was denied by Pilot. The parties were unable to resolve their disputes through mediation and Mr. Bissoon applied for arbitration under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

The issues in this hearing are:

1. May Mr. Bissoon commence a mediation proceeding under section 280 of the Insurance Act, R.S.O. 1990, c.I.8, as amended, if the requirements of paragraph 22(1)(b) of the Schedule have not been satisfied?

2. Was Mr. Bissoon an insured person at the time of the accident under the Pilot policy of automobile insurance effective August 14, 1992, for the purposes of entitlement to statutory accident benefits?

Result:

1. Mr. Bissoon may not commence a mediation proceeding under section 280 of the Insurance Act, R.S.O. 1990, c.I.8, as amended, as the requirements of paragraph 22(1)(b) of the Schedule have not been satisfied.

2. Mr. Bissoon was an insured person at the time of the accident under the Pilot policy of automobile insurance effective August 14, 1992, for the purposes of entitlement to statutory accident benefits.

Hearing:

The hearing was held at the offices of the Ontario Insurance Commission in North York, Ontario, on April 2, 1996 and June 25, 1996, before me, Lawrence Blackman, arbitrator.

Present at the Hearing:

Applicant:

Capildeo Bissoon

Mr. Bissoon's

Robert A. Robinson

Representative:

Barrister and Solicitor

Pilot's

Donald C. De Lorenzo

Representative:

Barrister and Solicitor

Also present at the hearing was Mr. S. Scott Knight, senior loss control specialist, accident benefits, with HB Group Insurance Management Ltd.

Witnesses:

1. Mr. Capildeo Bissoon

2. Mr. Wayne Hawtin

Exhibits:

Exhibit 1

Document Brief, filed by Messrs. Daniel, Wilson.

Exhibit 2

Document Brief, filed by Messrs. Aronovitch, Robinson.

Exhibit 3

Copy of letter from Pilot Insurance Company to Messrs. Diamond & Diamond, dated April 13, 1993, together with enclosures.

Exhibit 4

Copy of letter from Capildeo J. Bissoon to Pilot Insurance Company, dated June 25, 1993, and enclosures.

Exhibit 5

Original letter from Pilot Insurance Company to Capiledeo [sic] Bissoon, dated July 13, 1993.

Exhibit 6

Original letter from MCR Insurance Brokers Ltd. to Capiledeo [sic] Bissoon, dated 05/29/92.

Exhibit 7

Original letter from MCR Insurance Brokers Ltd. to Capiledeo [sic] Bissoon, dated 07/17/92.

Exhibit 8

Copy of O.E.F. Agreement for Suspension of Coverage Endorsement.

Exhibit 9

Copy of Visa receipt, dated 07/12/93.

Exhibit 10

Copy of letter from Capildeo Bissoon to Mr. David S. Diamond, dated May 1, 1993.

Exhibit 11

Copy of Application for Expenses of Capildeo Bissoon, dated October 7, 1994.

Exhibit 12

Certified copy of Automobile Insurance (Ontario), Renewal (Copy), Policy Number 1244245, issued 15-03-95.

Exhibit 13

Certified copy of Automobile Insurance (Ontario), Revision Endorsement (Copy), Policy Number 1244245, issued 15-03-95.

Evidence:

Mr. Bissoon's four-door 1979 Cadillac Deville was initially fully insured for the policy period August 14, 1992 to August 14, 1993 as the "described automobile" under a motor vehicle insurance policy issued by Pilot through MCR Insurance Brokers Ltd. ("MCR").

Mr. Bissoon testified that in early 1993 he made plans to travel to Trinidad for an indeterminate stay. It was his intention to drive his insured vehicle to his sister's home in New York, leave his car there, and on January 31, 1993, at 1:30 p.m., fly to Trinidad out of New York City.

Mr. Bissoon testified that accordingly, in the late afternoon of Thursday, January 28, 1993, he spoke by telephone to Mr. Wayne Hawtin of MCR, advising him of his intentions. He asked Mr. Hawtin to delete his "road coverage" effective midday Sunday, January 31, 1993, which was shortly before his flight was scheduled for departure. Mr. Bissoon stated that Mr. Hawtin told him that coverage was usually deleted 12:00 a.m., and not midday.

Mr. Bissoon had previously made similar arrangements with MCR, with whom he had dealt for a number of years. On those occasions, MCR had sent Mr. Bissoon written confirmation of his requests together with a copy of its memo to the insurer deleting or reinstating coverage.

Mr. Hawtin has been a vice-president of MCR since 1986 or 1987. He has been a licensed broker since 1981 or 1982. Mr. Hawtin testified that at all material times, he was an agent of Pilot pursuant to a broker's agreement. Mr. Hawtin agreed that he was able to bind Pilot regarding coverage without ever getting its approval.

Mr. Hawtin confirmed that Mr. Bissoon telephoned him on January 28, 1993. He stated that although he has received some 7,500 telephone calls subsequent to that date, he had an independent "crystal clear" recollection of that particular conversation. He stated that Mr. Bissoon advised him that he was going away and asked that all coverage except comprehensive be deleted from his policy that day. Mr. Hawtin testified that he writes while talking on the phone. Mr. Hawtin's notation of the conversation states "delete all but comp from 1979 Cad. Deville." The effective date and time are shown as simply "Jan 28/93." Mr. Hawtin agreed that a difference of a few days of coverage would make little difference in the premium charged, and would make no difference to Pilot or MCR.

Mr. Hawtin testified that memos were sent the next day by ordinary mail to Mr. Bissoon, and by courier to Pilot, confirming the changes that Mr. Hawtin says were requested by the Applicant. The latter memo states:

EFFECTIVE JANUARY 28, 1993 PLEASE DELETE ALL ROAD COVERAGES EXCEPT COMPREHENSIVE FROM THE 1979 CADILLAC DEVILLE.

PLEASE FORWARD AMENDED POLICY.

Pilot issued a revised automobile insurance policy effective January 28, 1993 to Mr. Bissoon, showing that an O.E.F. 16 endorsement had been added to Mr. Bissoon's policy in accordance with Mr. Hawtin's memo. That endorsement meant, in part, that Mr. Bissoon was not entitled to claim accident benefits with respect to "the use or operation" of the "described vehicle," being Mr. Bissoon's 1979 Cadillac Deville.

On January 29, 1993 at 2:08 p.m., Mr. Bissoon was injured in a motor vehicle accident in the City of North York, on his way to a business appointment. Mr. Bissoon had just stepped out of the driver's seat of his parked car onto the travelled portion of Yonge Street. He opened the back door of the car, where his briefcase was situated. Mr. Bissoon was in the process of putting on his coat, with the back door on the driver's side still open, when he and the open door were struck by a motor vehicle insured by HB Group Insurance Management Ltd. ("HB Group").

Mr. Bissoon's next recollection was awaking in the Sunnybrook Hospital trauma unit. On February 1, 1993, Mr. Bissoon phoned Mr. Hawtin from his hospital bed, advising him of the accident and asking that his full coverage be reinstated. Mr. Bissoon had not yet received either the MCR memo or Pilot's revised policy endorsement. Mr. Bissoon testified that Mr. Hawtin did not mention any coverage problems during this conversation.

Mr. Hawtin however testified that he told Mr. Bissoon at that time that all coverage except comprehensive had been deleted as of January 28, 1993, in accordance with Mr. Bissoon's purported instructions. He further testified that Mr. Bissoon asked that the effective date of the change be altered to a point in time after the accident. Mr. Hawtin said that he would not agree to this proposal as it would jeopardize his livelihood.

Mr. Hawtin agreed on cross-examination that Mr. Bissoon's alleged suggestion that the effective date of his change in coverage be altered was "pretty egregious." However, although Mr. Hawtin stated that he would have had his pad out during this discussion, he made no note of this conversation. Pilot did not submit any written evidence documenting this conversation. Mr. Hawtin did not dispute the suggestion made in cross-examination that he did not advise Pilot of any coverage problems in his ensuing post-accident report to them.

A number of days later, Mr. Bissoon received a telephone call at the hospital from someone at Pilot. He testified that there was no indication to him at that time that he was not covered for this accident. He subsequently had two further conversations, one with Mr. Hawtin and one with a representative of Pilot. He stated that coverage was not discussed during either of these conversations.

Mr. Bissoon testified that in February his usual premium for full coverage was deducted.

By letter dated February 9, 1993, Pilot advised Mr. Bissoon that they had notice of the January 29, 1993 accident, and enclosed an "Accident Benefits Claim Form Package" to be completed and returned in the self-addressed envelope provided.

Prior to the documents being returned, Pilot wrote Mr. Bissoon at his home address, by letter dated March 5, 1993, advising that:

It is our understanding that effective January 28th, 1993 you requested to delete all coverages fromthe [sic] automobile policy except for comprehensive coverage on your 1979 Cadillac Deville.

In view of the foregoing, you have no coverage under the above noted policy number for the accident of January 29th, 1993.

Sometime thereafter, Mr. Bissoon, while still in hospital, was advised of Pilot's position. Mr. Bissoon's evidence was that he immediately spoke to Mr. Hawtin by telephone, and that "Mr. Hawtin seemed to imply that he may have made a mistake during our telephone discussion of January 28, 1993."² Mr. Hawtin, however, testified that although Mr. Bissoon called MCR several more times, he had no specific recollection of speaking to Mr. Bissoon again. Pilot did not produce anything in writing documenting any of Mr. Bissoon's calls.

Mr. Bissoon further testified that he spoke twice by telephone with Mr. Dean Waddell of MCR, who advised that "even if Mr. Hawtin did make a mistake with the dates . . . he could not informed [sic] Pilot Insurance at this time of his 'mistake' because of the ramifications with respect to my accident as well as the financial claims that would ensue."³ Mr. Waddell was not called to give evidence at the hearing, nor were any of his notes produced.

By letter dated April 13, 1993 to Mr. Bissoon's then counsel, Pilot maintained its March 5, 1993 position, and stated that "the claim forms were submitted on the basis of good faith as we were not aware on this date that the coverages had been deleted from the subject vehicle."

Although Mr. Bissoon noted in a May 1, 1993 letter to his counsel "the undue financial and emotion [sic] hardships" that Pilot's position was causing, no such evidence was received under oath. The Applicant subsequently submitted an Application for Accident Benefits to the HB Group, the insurer of the vehicle which struck him. Mr. Bissoon was paid in excess of $78,000.00 in accident benefits by that insurer. No evidence was presented that Mr. Bissoon's ultimate entitlement to statutory accident benefits had in any way been compromised as a result of Pilot's position.

On July 16, 1993, Mr. Bissoon signed a subrogation agreement assigning his statutory accident benefits rights arising out of the accident to Coseco Insurance. Mr. Bissoon undertook in the agreement to "co-operate with Coseco Insurance except in a pecuniary way, in a furtherance of any action or proceeding or in the prosecution of any appeal against Pilot Insurance and/or their Insurance broker/agent." The precise relationship between Coseco Insurance and the HB Group was not made clear at the arbitration hearing.

By letter dated June 25, 1993, Mr. Bissoon submitted property damage documentation to Pilot. Pilot reiterated its prior position by letter dated July 13, 1993. There was no further correspondence between the Applicant and Pilot until the Applicant's Application for Appointment of a Mediator was forwarded by facsimile transmission to Pilot on March 2, 1995.

It was agreed by the parties that Pilot had not, as of this hearing, ever received an Application for Accident Benefits from Mr. Bissoon.

Law and Findings:

1. Restriction on Proceedings

Pilot argues that because Mr. Bissoon has never provided it with "a completed application for statutory accident benefits respecting the accident and the resulting loss" as required by paragraph 22(1)(b) of the Schedule, he is barred from proceeding to arbitration by section 25. Sections 22 and 25 of the Schedule state:

22.(1) the insured person or the person otherwise entitled to make a claim shall,

(a) give initial notice of a claim to the insurer, in writing, within thirty days from the date of the accident or as soon as practicable thereafter; and

(b) furnish to the insurer within ninety days of the giving of the notice under clause (a) a completed application for statutory accident benefits respecting the accident and the resulting loss.

(2) A failure to comply with a time limit set out in subsection (1) does not invalidate a claim if the claimant has a reasonable excuse and so long as there is compliance within two years of the accident.

25. No person may commence a mediation proceeding under section 280 of the Insurance Act in respect of benefits under this Schedule unless the requirements of section 22 have been satisfied and the insured person has made himself or herself reasonably available for any examination required under section 23.

The Applicant submits that the decision of Ready and Progressive Casualty Insurance Company, Ready and Zurich Insurance Company⁴ stands for the proposition that the remedial character of the statutory accident benefits legislation would be frustrated if an applicant's claim was barred in circumstances where an insurer denied a claim prior to an applicant having an opportunity to complete the application forms.

The facts in the Ready decision are distinct from this case. In Ready, the arbitration decision was rendered less than two years after the accident. Therefore, the relief provisions of section 22 of the Schedule were still available. As well, the issue in that case was a priority dispute pursuant to section 268 of the Act, and the subsidiary question of whether an insured's failure to complete an application form frustrated the applicant's election. I find that Ready does not stand for the proposition that the provisions of paragraph 22(1)(b) are waived where an insurer denies coverage carte blanche.

In the alternative, Mr. Bissoon relied upon the law of estoppel, as enunciated by Arbitrator Manji in Luke Offeh and Allstate Insurance Company of Canada⁵ as follows:

...where one person ('the representor') has made a representation to another person ('the representee') in words, or by acts and conduct, or (being under a duty to the representee to speak or act) by silence or inaction, with the intention (actual or presumptive), and with the result, of inducing the representee on the faith of such representation to alter his position to his detriment, the representor, in any litigation which may afterwards take place between him and the representee, is estopped, as against the representee, from making, or attempting to establish by evidence, any averment substantially at variance with his former representation, if the representee at the proper time, and in the proper manner, objects thereto. [emphasis added] [Spencer Bower on the Law Re{ati'ng to Estoppel by Representation, 3rd ed. by Turner (London, Butterworths, 1977), p. 9 quoted in Pannenbecker v. Dominion of Canada General Ins. Co. (1977), 1977 CanLII 667 (AB SCTD), 76 D.L.R. (3d) 132 at pp. 139-40 (Alta. S.C.T.D.), rev. on other grounds 1978 CanLII 1952 (AB SCAD), 93 D.L.R. (3d) 450 (SC. App. Div.).]

[emphasis added]

The Supreme Court of Canada held in Maracle v. Travellers Indemnity Company of Canada⁶ that:

The principles of promissory estoppel require that the promissor, by words or conduct, intend to affect legal relations.

I do not find that the general denial of coverage by Pilot in the circumstance of this case can be interpreted "as a promise, express, or implied"⁷ by Pilot not to rely on the requirements of section 22(1)(b) of the Schedule. Nor did I receive any evidence that Pilot's position caused Mr. Bissoon to believe that Pilot was foregoing any rights that it had under the Schedule.

Furthermore, there was no evidence presented as to any ultimate detriment suffered by Mr. Bissoon in pursuing his claim for statutory accident benefits against the insurer of the vehicle which struck him. I received no evidence that the Applicant had different or enhanced benefits available to him under the Pilot policy. Although he may have experienced some delay in obtaining his benefits, I heard no evidence of any prejudice to Mr. Bissoon, in terms of his final entitlement. There may have been detriment to the insurer of the other automobile, but that is not relevant to the issue of estoppel in the present case.

The Applicant has never furnished to Pilot the required application for statutory accident benefits. More than two years have now elapsed since the date of the accident. Accordingly, I have no discretion under section 22(2) of the Schedule to extend the time limits of paragraph 22(1)(b). I have no legislative discretion under the section 129 relief from forfeiture provision of the Act, as use of that section is specifically restricted to the court.

Therefore, pursuant to section 25 of the Schedule, Mr. Bissoon may not commence a mediation proceeding under section 280 of the Act. I agree with Senior Arbitrator Rotter, as stated in Edward J. Opatowski and Wawanesa Mutual Insurance,⁸ that the consequence is that since Mr. Bissoon "may not commence a mediation proceeding, it follows that he may not refer this matter to arbitration," pursuant to section 281 of the Act. Therefore, Mr. Bissoon is barred from proceeding with his claim for statutory accident benefits.

2. Coverage

Having found that Mr. Bissoon is barred from proceeding with his claim for statutory accident benefits, it is not necessary for me to determine whether he was insured under the Pilot August 14, 1992 automobile insurance, at the time of the accident policy.

However, as the issue was raised by the parties, and in order to be complete, I will deal with this further issue.

(a) Jurisdiction

It is the submission of Pilot that the O.E.F. 16 endorsement was in effect at the time the accident took place. Pilot submits that pursuant to this endorsement, Mr. Bissoon was not entitled to claim accident benefits under the Pilot policy of insurance, as the accident involved the use or operation of his 1979 Cadillac Deville.

The Applicant argues that the endorsement had been prematurely added to his policy, and he was therefore entitled to claim accident benefits from Pilot. Pilot submits that an arbitrator does not have jurisdiction to consider this issue. It submits that an arbitrator has jurisdiction only to interpret a contract of automobile insurance, not to determine the existence of a policy or the status of a person. Pilot relies inter alia on subsection 279(1) of the Insurance Act, R.S.O. 1990, c. I.8, as amended (the "Act") which states:

279.--(1) Disputes in respect of any insured person's entitlement to statutory accident benefits or in respect of the amount of statutory accident benefits to which an insured person is entitled shall be resolved in accordance with sections 280 to 283 and the Statutory Accident Benefits Schedule. R.S.O. 1990, c. I.8, s. 279 (1); 1993, c. 10, s. 1.

I do not agree that an arbitrator does not have jurisdiction to determine "the nature and terms of the policy in existence at the time of the accident." Subsection 20(2) of the Act states that:

(2) A person referred to in subsection (1) [which includes arbitrators] has exclusive jurisdiction to exercise the powers conferred upon him or her under this Act and to determine all questions of fact or law that arise in any proceeding before him or her and, unless an appeal is provided under this Act, his or her decision thereon is final and conclusive for all purposes. [emphasis added]

I agree with Senior Arbitrator Naylor (as she then was), in Decicco and State Farm Mutual Automobile Insurance Company⁹, that:

the scope of the issues before the arbitrator should not be defined in a narrow and technical way. The authority of the arbitrator extends to anything that reasonably and consequentially flows from the issues that are before her.

In my view, in this case, the question of entitlement extends reasonably and consequentially to the question of status, that is, whether the Applicant was an insured person under the Pilot policy at the time of the accident. Questions of status, such as whether a person was a "dependant" at the time of an accident, or whether there has been a settlement of an insured's entitlement, have been routinely dealt with by arbitrators.

I further find that the issue of coverage in this case "is a reasonable, sensible and necessary adjunct to the arbitrator's authority," to quote the words of Director's Delegate Naylor in Anand Boodhai and Allstate Insurance Company of Canada.¹⁰

I therefore find that I indeed have jurisdiction to determine Mr. Bissoon's status as of the date of the motor vehicle accident, and the specific questions of whether the accident involved the use or operation of the described motor vehicle, and whether on January 29, 1993, the O.E.F. 16 endorsement superseded Mr. Bissoon's August 14, 1992 policy.¹¹

(b) "Use or operation of an automobile"

The Applicant maintains that even if the Insurer is correct and the O.E.F. 16 endorsement was in effect at the time of the accident, he is still covered under the Pilot policy as the endorsement would apply only if the accident involved "the use or operation" of his 1979 Cadillac Deville. The Applicant states that the accident did not involve "the use or operation" of his vehicle.

The Applicant relies upon Arbitrator Renahan's decision in Timothy J. Hanlon and Guarantee Company of Canada.¹² That case involved two motor vehicles jockeying for position on the highway. The two vehicles eventually came to a complete stop on a side road. Both drivers exited their respective vehicles. An argument ensued. One of the drivers assaulted the other with his cellular phone.

In determining that the "use or operation of an automobile" did not cause, directly or indirectly, the injuries sustained as by the blow, and hence this incident was not an "accident" under the Schedule, Arbitrator Renahan adopted the following two-part test set out in Amos v. Insurance Corp. Of British Columbia.¹³

1. Did the accident result from the ordinary and well-knownactivities to which automobiles are put?

2. Is there some nexus or causal relationship (not necessarily a direct or proximate causal relationship) between the appellant's injuries and the ownership, use or operation of his vehicle, or is the connection between the injuries and the ownership, use or operation of the vehicle merely incidental or fortuitous?

Mr. Bissoon's counsel submitted that a moment after the accident occurred, the Applicant would have been an ordinary pedestrian, and hence the use of the car was merely fortuitous. In my view however, the key time element however is the exact moment of the accident. At that precise point, Mr. Bissoon was still in the course of exiting his vehicle, that is, he was still in the process of utilizing his car. Exiting an automobile is an "ordinary and well-known" activity to which automobiles are put.

I further find that there was a nexus between the Applicant's injuries and his utilization of the car. This relationship was not severed by new and independent acts as in Hanlon, where the drivers had completely exited their vehicles, and had begun shouting at one another. The connection in this case cannot be deemed, in my opinion, to be merely incidental or fortuitous.

Therefore, applying the two-part test in Amos,¹⁴ I find that Mr. Bissoon's accident was "with respect to the use or operation of the Described Automobile." Accordingly, he would be excluded from claiming statutory accident benefits under the O.E.F. 16 endorsement.

(c) Coverage

This leads us to the question as to which policy was in effect on the day of the accident. This in turn requires a determination as to what Mr. Bissoon's instructions were to Mr. Hawtin on January 28, 1993. This determination turns on a question of credibility.

I found Mr. Bissoon to be a credible witness. His credibility was only attacked on a collateral matter involving his father's airline ticket, and the Insurer's evidence was at best inconclusive. Mr. Bissoon's evidence as to his instructions to Mr. Hawtin was logical and consistent with an uncontradicted intention to drive to New York City on January 29, 1993, and leave New York City by plane on January 31, 1993, at 1:30 p.m. for an indeterminate period. I find that Mr. Bissoon intended to make use of his car in Toronto, prior to driving to New York City. It would make no sense for Mr. Bissoon to risk driving without insurance for a few days in order to obtain a minimal, if any, saving on his premium. Mr. Hawtin agreed that a difference of a few days of coverage would have made no difference to either MCR or Pilot.

Conversely, I found Mr. Hawtin not credible, based both on my observations of his presentation and on the lack of logic in his evidence. He stated that he had a crystal clear independent memory of one of thousands of telephone calls he has received, a call which at the time it was made had no special significance to him. He stated that he advised Mr. Bissoon on February 1, 1993 that he was not covered for this accident, yet he subsequently forwarded Mr. Bissoon's claim to Pilot without any comment as to coverage. He stated that Mr. Bissoon proposed in effect that they together defraud Pilot, and yet this experienced broker, who testified that he was an agent of Pilot, and who keeps a notepad by the phone, produced not a scrap of paper to substantiate that conversation, or indicate that Pilot was ever so advised.

Neither Mr. Waddell nor any of his notes of conversations with Mr. Bissoon were presented. I make the adverse inference that this evidence would not have been helpful to the Insurer.

I prefer Mr. Bissoon's evidence to that of Mr. Hawtin. I therefore find that Mr. Bissoon requested that the limited coverage take effect on January 31, 1993.

In this case I find that Mr. Hawtin was at all material times an agent for his principal, Pilot. He had actual authority from Pilot to bind the company. The decision of Gilvesy v. Steve Mayorscak Insurance Agency Ltd. et al.¹⁵ is authority for the proposition that in "the absence of fraud or deceit on the part of the agent information communicated to the agent within the course of his employment is deemed to have been communicated to the principal."

Brown and Menezes cite Gilvesy in part as authority for the following proposition:¹⁶

The question of whether or not the principal is to be liable is not one of evidence to be decided on the balance of probabilities. Rather, it is one of policy: who, as between two innocent parties, should bear the consequences of a failure to communicate information or of negligence or fraud. When both the third party and the principal are innocent, the burden falls on the principal. This is based on the assumption that the principal is obtaining a benefit from the existence of the agency relationship and must therefore accept certain associated risks.

The authors continue:¹⁷

Where the agent has the authority to finalize the contract, transmitting information in the form of a completed application to the insurer is a mere formality. If there has been no misrepresentation to the agent but there are misstatements in the application that are not part of an attempt at collusive fraud, the insurer is bound to the risk, having through its agent received truthful information and made a contract.

I find that on January 28, 1993, Mr. Bissoon finalized a change to his automobile insurance policy effective January 31, 1993. The transmission of this information by Mr. Hawtin to Pilot was a mere formality. I find that there were misstatements in this transmission as to the effective date of the change. In Gilvesy, the court held that "the insurance company cannot by issuing a policy unilaterally alter the terms of the contract." I likewise find in this case that the Insurer, Pilot, cannot, by unilaterally issuing a revised endorsement, effect a change in coverage earlier than that requested by its insured.

Accordingly, I find that Mr. Bissoon's policy of insurance effective August 14, 1992 was not superseded by the O.E.F. endorsement issued January 28, 1993. Hence, I find that Mr. Bissoon had statutory accident benefits coverage with Pilot at time of the accident.

Expenses:

The question of expenses of this arbitration hearing was not addressed at the preliminary hearing. I may be spoken to in this regard, should the parties so wish.

Order:

1. Mr. Bissoon may not commence a mediation proceeding under section 280 of the Insurance Act, R.S.O. 1990, c.I.8, as amended, as the requirements of paragraph 22(1)(b) of the Schedule have not been satisfied.

2. Mr. Bissoon was an insured person at the time of the accident under the Pilot policy of automobile insurance effective August 14, 1992, for the purposes of entitlement to statutory accident benefits.

November 6, 1996

Lawrence Blackman

Arbitrator

Date

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 10, page 2.
3. 3Ibid.
4. 4(April 7, 1994), OIC A-005403 and OIC A-004768 (under appeal).
5. 5(October 25, 1994), OIC A-006494.
6. 61991 CanLII 58 (SCC), [1991] I.L.R. 1-2728.
7. 7Ibid, at page 1287.
8. 8(September 22, 1992), OIC A-000381.
9. 9(December 18, 1991), OIC A-000277, at page 6, appeal dismissed (February 21, 1992), OIC P-000277.
10. 10(September 18, 1996), OIC P-004002, at page 7.
11. 11I find that the comments of Director Sachs in the appeal decision of Ramjeet and State Farm Mutual Automobile Insurance Company (February 28, 1995), OIC P-004685 that "if a claimant is not an insured person, then no claim may be launched and entitlement is not an issue," does not stand for the proposition that an arbitrator has no jurisdiction to determine a question of status. Rather, the Director is merely making the self-evident point that the issue of entitlement presupposes that the claimant, in either a court or an arbitration proceeding, has status as an insured person
12. 12(October 30, 1995), OIC A-011977 (under appeal).
13. 13(1995), C.C.L.I. (2d) 1, (S.C.C.).
14. 14The Ontario Court of Appeal held in the recent unreported decision of Derek Alchimowicz v. Continental Insurance Company ofCanada (September 3, 1996), Court File No. C23058 that Amos (which had considered the meaning of section 79 of the British Columbia no-fault automobile insurance regulation) did not apply to the Schedule's more restrictive definition of the word "accident." It should be noted however that the wording in the O.E.F. endorsement, although slightly different from the words considered in Amos, is closer than the Schedule wording. The endorsement uses the words "with respect to the use or operation of the Described Automobile" while the British Columbia legislation uses the words "arises out of the ownership, use or operation of a vehicle" [emphasis added]. If there is a distinction between the words highlighted, I find the wording of the Ontario endorsement broader (and hence should be more interpreted in a more liberal manner) as the latter legislation requires a causal connection, which the former may not.
15. 15(1978) 1978 CanLII 1549 (ON HCJ), 21 O.R. (2d) 836, (Ontario County Court).
16. 16Brown and Menezes, Insurance Law in Canada, 2nd ed. (Scarborough: Thomson Professional Publishing Canada, 1991), at page 53.
17. 17Ibid, at pages 54 to 55.