Hilda Shaw v. Allstate Insurance Company of Canada and Belair Insurance Company Inc., 1997 ONICDRG 123

Ontario Insurance Commission

Neutral Citation: 1997 ONICDRG 123 File No.: OIC A95-000557

Between:

Hilda Shaw, Applicant and Allstate Insurance Company of Canada, Insurer

And Between:

Hilda Shaw, Applicant and Belair Insurance Company Inc., Insurer

Decision

Issues:

Hilda Shaw was injured in a motor vehicle accident on December 31, 1994. She applied for and received statutory accident benefits from Allstate Insurance Company of Canada ("Allstate"), payable under the Schedule¹ Allstate submits that at the time of the accident, Ms. Shaw was the spouse of Mr. Leslie Digby, and that therefore his automobile insurer, Belair Insurance Company Inc. ("Belair") is responsible for payment of any statutory accident benefits to which Ms. Shaw may be entitled. Both Ms. Shaw and Mr. Digby deny that they have ever been spouses. The parties were unable to resolve their dispute through mediation, and Ms. Shaw applied for arbitration under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

The issues in this hearing are:

1. Were Ms. Shaw and Mr. Digby spouses at the time of the motor vehicle accident?

2. Is Ms. Shaw entitled to her expenses incurred in respect of this arbitration proceeding?

Result:

1. Ms. Shaw and Mr. Digby were not spouses at the time of the motor vehicle accident.

2. Ms. Shaw is entitled to her expenses incurred in respect of this arbitration proceeding.

Hearing:

The hearing was held at the offices of the Ontario Insurance Commission in North York, on January 21 and 22, 1997, before me, Lawrence Blackman, Arbitrator.

Present at the Hearing:

Applicant: Hilda Shaw

Ms. Shaw's Representatives: Antonin I. Pribetic, Barrister and Solicitor Allen Mihic, Law Clerk

Allstate's Representative: Todd J. McCarthy, Barrister and Solicitor

Allstate's Officer: Mark Potts

Belair's Representatives: William P. Dermody, Barrister and Solicitor Catherine E. Buntain, Barrister and Solicitor

Belair's Officers: Michael Sobie Joy James

Witnesses:

Ms. Hilda Shaw Mr. Leslie Digby Ms. Peggy Lee Ms. Evelyn Barrett Mr. Barry Robertson Ms. Colleen Watkins Ms. Juliet Catherine Beard Ms. Cely Potes Mr. Paul Robertson

Exhibits:

Exhibit 1 Three volume joint brief.

Exhibit 2 Copy of "Speed letter," dated January 4, 1995, from Juliet Beard to Ms. Shaw.

Exhibit 3 Copy of handwritten note, dated January 5, 1994 [sic].

The proceedings were transcribed by Suzanne Lafontaine of Lafontaine Court Reporting.

Introduction:

On December 31, 1994, Ms. Shaw was struck by a motor vehicle while crossing an intersection. Her injuries as a result of this accident included fractures of her pelvis and left ankle.

Under section 268 of the Act, Ms. Shaw is considered for insurance coverage purposes to have been a "non-occupant" at the time of the accident. As such, her first recourse for statutory accident benefits is against the insurer of an automobile in respect of which she is an "insured." If Ms. Shaw was not an "insured" at the time of the accident, then she must claim against the insurer of the automobile which struck her, namely Allstate.

Ms. Shaw does not drive and was not personally named in any motor vehicle insurance policy at the time of the accident. However, the Schedule defines "insured person" as including the spouse of the named insured. Ms. Shaw maintains that she was not a spouse at the time of the accident. Accordingly, she applied to Allstate for payment of statutory accident benefits.

Allstate, however, contends that at the time of the accident, Ms. Shaw was not merely living with, but was also the spouse of Belair's named insured, Mr. Leslie Digby. Allstate therefore submits that Ms. Shaw must look to Belair for payment of statutory accident benefits.

Law:

The relevant portion of the Schedule definition of the term "spouse" reads as follows:

"spouse" means either of a man and a woman who,

(c) have lived together in a conjugal relationship outside marriage at some point during the previous year and have lived together in a conjugal relationship outside marriage,

(i) continuously for a period of at least one year . . . [emphasis added]

The decision of Re Feehan and Attwells adopted the Shorter Oxford English Dictionary definition of the term "conjugal" as "of or pertaining to marriage or to husband and wife in their relationship to each other; matrimonial."²

Section 224 of the Act defines "spouse" somewhat differently than does the Schedule, and requires the man or woman to have cohabited continuously for not less than three years.

In Molodowich v. Penttinen³, the court held that terms "conjugal" and "cohabit" involved "overlapping and interwoven concepts, each word, in a sense, an echo of the other and both an integral and essential element encompassed by the modern day concept of 'marriage'."

Senior Arbitrator Naylor (as she then was) held in Alfred⁴ that "whether or not a couple has cohabited in the legal sense involves both an objective and a subjective test: determining the intention of the parties from the facts" [emphasis added]. She notes that the cases "illustrate the overriding principle: that each case turns upon its own special facts."

Senior Arbitrator Naylor further noted that Molodowich "categorized the essential elements of inquiry as including accommodation arrangements, sexual and personal relations, responsibility for household services, interaction in a family and social context, financial arrangements and support, and responsibility towards children."

The term "cohabit" was also considered in Bellis v. Innes,⁵ where Hutchinson Co. Ct. J. drew:

from the authorities that the phrases "cohabit", "living arrangement", "live with a man in a state resembling matrimony" and "live with a person as if they were husband and wife" have common features and that these contemplate an integrated relationship between the man and the woman that will usually have many of the following elements, though not necessarily all of them: financial interdependence, a sexual relationship, a common principal residence, obligations on the part of each to share the responsibilities of running the home, shared use of assets such as cars, boats, etc., shared responsibilities for raising children, shared vacations and the expectation each day that there be continued mutual dependency.

In determining whether Ms. Shaw and Mr. Digby were indeed spouses at the time of the accident, I will consider first the objective elements of inquiry set out in the Molodowich and Bellis decisions, and then consider the subjective intent of Ms. Shaw and Mr. Digby.

Evidence:

1. Objective Elements:

(a) Accommodation Arrangements

Mr. Digby was 78 years old at the time of the accident. He impressed me as an active, independent and vital person, with numerous interests. In 1976, he purchased and moved into the condominium complex where he still resides. In 1982, Mr. Digby retired from a varied and challenging working life. That same year, Mr. Digby's then wife, Barbara, moved out of the condominium unit. The couple were divorced in either the same, or the following year.

Mr. Digby had met Ms. Shaw prior to the breakup of his marriage. There was no evidence that the Applicant played any role in the divorce. Mr. Digby testified that once his divorce was finalized, he was concerned about the possibility of dying alone in his unit and days passing before his remains might be discovered. He also indicated that the "powers to be try to discourage seniors from living on their own." He therefore decided to share his apartment with someone, and in this regard, Ms. Shaw was the first person to come to mind.

Ms. Shaw was 70 years old at the time of the accident. She has three grown children: Barry Robertson and Evelyn Barrett who live in Ontario, and Larry Robertson, who lives outside of Canada. Ms. Shaw has never married.

Before accepting Mr. Digby's invitation, Ms. Shaw introduced Mr. Digby to her son Barry (with whom she was then residing) and obtained his approval to the proposed living arrangement. Upon Mr. Digby agreeing to the Applicant's condition that her daughter Evelyn also be allowed to move into the condominium unit, Ms. Shaw agreed to Mr. Digby's offer of accommodation.

Ms. Shaw and her daughter have lived with Mr. Digby in the same two bedroom/ two bathroom unit since August 1983. The evidence was uncontradicted that Mr. Digby sleeps in the master bedroom, Evelyn Barrett has the smaller bedroom (which allowed her a place to do her school work when she first moved into the unit), and Ms. Shaw sleeps on the living room couch.

(b) Sexual Relationship

There was no evidence of any sexual relationship between Ms. Shaw and Mr. Digby.

Furthermore, Ms. Shaw testified that she has never had a romantic relationship with Mr. Digby, or a relationship that featured love or the affection of a husband and wife. When asked if there was any romantic involvement with Ms. Shaw, Mr. Digby responded "Not really, no." He described Ms. Shaw and himself as "good friends," who are purely sharing accommodation for their mutual benefit.

Ms. Barrett testified that there was no romantic involvement between her mother and Mr. Digby, but rather they had "a very close friendship." Her brother Barry confirmed that the relationship was one of friendship, and that Mr. Digby is simply "the gentleman that my mother lives with."

(c) Responsibility towards children

Mr. Digby and Ms. Shaw have not had any children together. There was no evidence of any shared responsibility towards their respective children.

(d) Interaction in a family and social context

Mr. Digby testified that on occasion he and Ms. Shaw would, as friends, go together to Harbourfront, the show or perhaps a church event, because "I need someone to go with and she needs someone to go with." Ms. Shaw confirmed that although she would sometimes attend functions with Mr. Digby at his church, she was not a member. Furthermore, Mr. Digby was involved in some twenty organizations and committees, such as the condominium corporation, a senior citizens' home, the East York Foundation, a Housing Corporation, and a variety of church boards, which I have no evidence involved Ms. Shaw at all.

Allstate called Ms. Colleen Watkins as a witness. Ms. Watkins lives in the same condominium building as Mr. Digby and Ms. Shaw. When asked what she knew about their relationship, she stated that she does not know "what goes on behind their closed doors." Her signed statement states that "To the best of my knowledge they are not married. Leslie Digby and Hilda Shaw are seen going out together. Leslie does go to church but I do not believe she goes with him."

Allstate also called Ms. Cely Potes, who lived in the condominium building from 1992 until early 1996. She would see Ms. Shaw perhaps once a month, whereas she was "constantly" seeing Mr. Digby in or about the building. She did however see them together once returning from a vacation, once on their way to church, once shopping, once in the laundry room, and once when Mr. Digby put his arm on Ms. Shaw's back to assist her onto a bus. Ms. Potes testified that Ms. Shaw and Mr. Digby did not discuss their private matters.

However, Ms. Potes' signed statement seemed to imply that Ms. Shaw and Mr. Digby had a more involved and intimate relationship, for example the assertion "I did see Leslie Digby walking with his arm around Hilda," which referred to the assistance given by Mr. Digby helping Ms. Shaw onto the bus. I found Ms. Potes' oral evidence to be most credible, and I find any discrepancy with her written statement to be the result of an interviewer's overzealous interpretation of information provided by Ms. Potes.

Ms. Shaw testified that she and Mr. Digby went on holidays together, but that she paid her own way. In the year prior to the accident, they went to England and to Cartagena together.

In 1993, Mr. Digby accompanied Ms. Shaw as a guest to her son Larry's wedding outside the country. Mr. Digby also sometimes accompanies Ms. Shaw to her son Barry's house in Pickering, although at times Mr. Digby declines the invitation and Ms. Shaw goes alone. Ms. Shaw has also invited Barry and his family to the condominium unit for dinner, with Mr. Digby being present.

Gifts were sometimes exchanged among the three unit residents for birthdays or for Christmas. Mr. Digby testified that his birthday gift is to take the Applicant and her daughter out.

Ms. Shaw and Mr. Digby both testified that Mr. Digby came to see the Applicant almost every day while she was in hospital following the accident, and spent many hours by her side. Ms. Lee testified that her mother was in the hospital bed next to Ms. Shaw. She stated that the only visitor she ever saw with the Applicant was Mr. Digby. She did not come to any conclusion as to their relationship.

(e) Sharing responsibilities of running the home

Ms. Shaw testified that she and Mr. Digby shared the cleaning of the apartment. Mr. Digby testified that the chores "just happened." Ms. Barrett testified that Mr. Digby cleans the kitchen, while she cleans everything else. Ms. Barrett testified that before the accident, Mr. Digby never did the laundry. This was not contradicted by Ms. Cely Potes, who testified that on one occasion she saw Mr. Digby enter the laundry room when Ms. Shaw was there, pick something up, and leave.

Mr. Digby testified that while he makes his own breakfasts and lunches, Ms. Shaw makes most of the dinners. Mr. Digby however makes bacon and eggs once a week for supper.

The evidence of Ms. Shaw and Ms. Barrett that Mr. Digby and Ms. Shaw never went shopping together was contradicted by Ms. Potes who testified that she saw Mr. Digby and Ms. Shaw together on one occasion at Food City prior to the accident. Mr. Digby couldn't recall taking Ms. Shaw shopping before the accident.

Ms. Shaw testified that Mr. Digby does the income tax returns for her and her daughter. At present, the only thing she asks Mr. Digby to do is to drive her if her son is not available, whereas before the accident she would take a bus or a taxi. Mr. Digby testified that he drove Ms. Shaw around on occasion before the accident, if he was available, as a common courtesy.

(f) Shared use of assets

Mr. Digby pays the common condominium expenses. While the telephone is his, Ms. Shaw pays for her long distance charges. Other expenses are divided informally. As an example, each of the unit residents buys their own groceries, and each uses what they want.

There was little evidence received as to the use of assets. It seemed to be implicit, however, that some things were for common use such as dining utensils, whereas each person kept their personal items "stacked" separately, to use Mr. Digby's choice of words. I received no evidence that Mr. Digby's room was open to Ms. Shaw to take from or use as she saw fit.

(g) financial interdependence and continued mutual dependency

The evidence confirmed Ms. Shaw's March 22, 1995 statement that Ms. Shaw, Mr. Digby, and Ms. Barrett were not dependent on each other for financial support. Nor was there any evidence contradicting her statement that none of the three was dependent on another for care.

At the time of the accident, Ms. Shaw had been employed on a full-time basis for 22 years at Rockcliffe Nursing Home. Her annual salary was approximately $25,000.00, in addition to Old Age Security benefits. Ms. Shaw had also worked part-time for another nursing home.

Ms. Barrett has been employed full-time as a securities redemption officer since October 1987. Mr. Digby testified that he receives several pensions a result of his varied working career.

Ms. Shaw testified that she did not have an interest in anything that had Mr. Digby's name on it, which was confirmed by Ms. Barrett. Ms. Shaw further testified that neither she nor Mr. Digby (as far as she was aware) had any insurance coverage with the other as beneficiary. Ms. Barrett stated that she helped her mother with her banking and that her mother had her own separate bank account. This was confirmed by a Toronto-Dominion Bank letter dated April 17, 1996 which indicated that Ms. Shaw had an account with that institution since March 1978, and presently had two accounts in her name alone.

Mr. Digby testified that his finances were separate from Ms. Shaw, and that his Power of Attorney is with his own daughter. Ms. Shaw's Power of Attorney is with her daughter. Ms. Barrett testified that Mr. Digby had indicated that her mother was in his will and would inherit the condominium unit, but that was all she would get.

Ms. Shaw testified that neither she nor Mr. Digby had any expectation that either would provide financially for the other. However, Ms. Shaw's will allows her children to choose personal, domestic and household items from her estate, but only once Mr. Digby has died. Likewise, any property which she owns and is using as a home, is to be left to Mr. Digby during his lifetime, and then divided amongst her children. Ms. Shaw indicated that these arrangements had been made because Mr. Digby had been good to her, and she wanted to give something back to him. The Executor and Trustee of her will is Mr. Digby. Mr. Digby however testified that he hasn't a clue of his status in the Applicant's will, and that he hasn't discussed his own will with her.

2. Subjective Intention:

Both Ms. Shaw and Mr. Digby testified that neither considered the other to be their spouse, nor their relationship to be in the nature of a marriage. Neither one has ever held themselves out as being spouses.

Ms. Shaw considered their relationship to be one of friendship, with no strings attached. Mr. Digby testified that his acquaintances refer to Ms. Shaw as, amongst other things, his "friend," his "partner," his "housekeeper," or his "wife." He however, does not encourage any of those terms. He merely refers to the Applicant as "Hilda."

Ms. Barrett testified that neither her mother nor Mr. Digby has ever said that they were spouses. Neither she nor her brother Barry has ever described their mother's relationship with Mr. Digby as a common-law relationship, or ever described them as being spouses.

Ms. Shaw's 1994 tax return notes her marital status as single.

The records of Scarborough General Hospital (which note Ms. Shaw's "terribly disruptive" pelvic fracture, which was operated on the next day) consistently, from the accident date, show Ms. Shaw’s marital status as single, and her "next of kin" as Evelyn Barrett.

In the Ontario Court (General Division) tort statement of claim issued November 29, 1996, the only family members listed as plaintiffs pursuant to the Family Law Act, R.S.O. 1990, c. F.3, as amended, are Ms. Shaw's children who live in Canada, namely Evelyn and Barry. There is no evidence of any Family Law claim having been made by Mr. Digby.

Ms. Beard is an insurance adjuster, who was assigned to investigate this case on behalf of Allstate. On January 5, 1995, Ms. Beard spoke to Mr. Digby by telephone. Ms. Beard testified that she has a present recollection of Mr. Digby identifying himself as Ms. Shaw's common-law spouse, but not for income tax purposes. Although it was Ms. Beard's usual procedure to write down her notes contemporaneously during a conversation, on cross examination, she conceded that although it was not her usual practise, it was not impossible that the words "common law" in her note of that conversation had been added later, it being suggested that those words were written in a different style. On re-examination however, Ms. Beard testified that the whole note had been made contemporaneously after speaking with Mr. Digby, and that there had been no additions, deletions, or amendments of that note.

Mr. Digby, however, in a later statement provided to Allstate, stated that "I did say I was representing Hilda but I did not say I was her husband." His oral evidence was that he had never said that he was Ms. Shaw's husband, "at least that's my recollection."

Although she was asked by her principals to get a statement from the "husband" concerning issues of residence, common law relationship, and dependency, there was no discussion in Ms. Beard's next conversation with Mr. Digby concerning his marital status. In neither of these conversations did Ms. Beard ask Mr. Digby whether he had personal automobile insurance coverage.

Ms. Beard subsequently met Ms. Shaw and Mr. Digby at Scarborough General Hospital, where the Applicant was convalescing. A major goal of this meeting for the Insurer was to determine Ms. Shaw's spousal status, and whether coverage was available from any other insurer. Ms. Beard took down Ms. Shaw's statement, which included the declaration "I am not married." Ms. Beard testified that although it was very relevant to determine what Ms. Shaw's marital status was, because the meeting was not going well, it was not until Ms. Shaw had signed the statement (and in the absence of Mr. Digby who was being separately interviewed), that she asked Ms. Beard whether she was living common-law. Ms. Beard testified that Ms. Shaw answered yes.

Surprisingly however, considering the importance of such an admission, Ms. Beard neither requested that Ms. Shaw confirm that status in writing, nor did she make any notation of this statement. I did not receive any evidence that this alleged statement was even communicated to her principals. Ms. Beard's evidence on this point was entirely based on her present recollection of a conversation which took place some two years earlier.

Ms. Shaw denied under oath that she told Ms. Beard that Mr. Digby was her husband or that she had a romantic relationship with him.

Mr. Paul Robertson is also a claims adjuster. He accompanied Ms. Beard to the hospital, and separately interviewed Mr. Digby. Mr. Robertson's evidence differed from Ms. Beard's as to whether the two statements were taken in the same room or not.

Mr. Digby's very brief written statement says that "I only share an apartment with Miss Shaw. All expenses are separate and Miss Shaw is not dependant on me." Mr. Digby handwrote the following: "my status for tax purposes is 'divorced' and Miss Shaw's is 'single'." Mr. Robertson testified that he had no reason to disbelieve Mr. Digby's statement, and that there were no other facts that caused him to disbelieve Mr. Digby.

I received no evidence that Mr. Robertson either overheard Ms. Shaw saying that she was living common-law, or that Ms. Beard discussed that with him at any time after the meeting. Mr. Robertson, however, confirmed that there was some hostility towards him and Ms. Beard.

Findings:

Allstate submits that Mr. Digby and Ms. Shaw were spouses at the time of the accident, and that with Ms. Barrett, they constituted an integrated family unit, and that the community recognized them as such. Allstate submits that while the views of Ms. Shaw and her family, and Mr. Digby are relevant, their "misguided" notions cannot be determinative when opposed by the overwhelming weight of the evidence, and by their statements when "their guard was down."

I do not agree that the objective evidence of a marital relationship is overwhelming, or even persuasive on a balance of probabilities. There was no evidence of any sexual relationship between Ms. Shaw and Mr. Digby. There was no evidence of any financial interdependence between them. There was no evidence of any sharing of responsibility towards their children.

It is true that Mr. Digby and Ms. Shaw shared a residence. However, their sleeping arrangements and sharing of assets were more consistent with their being roommates than spouses. Certain elements of the sharing of household duties, specifically the meal regime, had a family flavour. However, other activities, such as each person buying their own groceries, were more consistent with a non-marital relationship.

I accept the evidence of Ms. Shaw and Mr. Digby that they have not discussed their respective wills with one another. I find their dispositions to each other to be more consistent with gifts being bestowed by friends, than any expectation of future dependency or obligation.

The social relationship of Mr. Digby and Ms. Shaw was far more consistent with a deep-rooted friendship than a relationship that featured the love, affection or companionship of a husband and wife. It should hardly be surprising that two individuals who lived together and who evidently enjoyed each other's company, travelled or socialized together. However, the evidence indicated that Mr. Digby and Ms. Shaw led essentially independent lives, each with their own interests and activities. Furthermore, there was no sense of any obligation for either to join in the other's company. Mr. Digby for instance, was free to accompany or not accompany Ms. Shaw to see her son, as he wished. To put it in Ms. Shaw's words, this was a "no strings attached" relationship. I do not find that this was an "integrated relationship," as contemplated by the terms "conjugal" and "cohabit."

The weight of the objective evidence, therefore, was consistent with the sworn evidence of Ms. Shaw, Barry Robertson, Evelyn Barrett, and Mr. Digby that Ms. Shaw and Mr. Digby were not spouses and were not living common law. The evidence of these witnesses was not contradicted by Ms. Potes, Ms. Watkins, Ms. Lee, or Mr. Paul Robertson, all called by Allstate.

Nor was their evidence contradicted by the written evidence. The most cogent written evidence which Allstate could find in support of its position was the incorrect statement in the records of Providence Centre that Ms. Shaw lived with her daughter and her daughter's husband, which Allstate submitted was evidence that Mr. Digby was somebody's spouse. I was also referred to the Scarborough General Hospital notation that Ms. Barrett was a dependant of Ms. Shaw as proof that Ms. Shaw will attest to whatever she feels is necessary in the circumstances. I do not accept either of these submissions.

The only evidence that Ms. Shaw and Mr. Digby subjectively considered themselves to be spouses comes from Ms. Beard, who testified that Mr. Digby stated that on January 5, 1995, and that Ms. Shaw confirmed the fact during the hospital meeting.

Ms. Beard's evidence, however, is not merely inconsistent with the other witnesses, it is internally inconsistent. If the major reason for the hospital meeting was to clarify the relationship between Ms. Shaw and Mr. Digby, it makes no sense that Ms. Beard did not obtain Ms. Shaw's admission in writing, or set it down in any contemporaneous memo or correspondence. It also makes no sense that this crucial admission would not be mentioned to Mr. Paul Robertson.

It is further illogical that Ms. Shaw and Mr. Digby, whom Allstate alleges have consistently misrepresented their relationship (even when Ms. Shaw was being processed in emergency immediately following the accident, and was presumably in considerable pain and shock), would "come clean" with insurance adjusters they were meeting for the first time, especially when the latter described their reception at the hospital meeting as hostile.

It is again illogical, if Ms. Beard was told in her first conversation with Mr. Digby that he and Ms. Shaw were living common law, that she would not inquire as to what other insurance coverage Mr. Digby might have, and refer Ms. Shaw to that Insurer.

Based on the evidence of Mr. Digby (and its overall consistency with the testimony of the other witnesses other than Ms. Beard), Ms. Beard's differing evidence as to whether her note from the January 5, 1995 conversation could have been subsequently amended, and the fact that the words "common law" in her note do appear to be a different script than the rest of the entry, I find that the words "common law" are not a contemporaneous verbatim notation, but rather represent a conclusion that was later reached by Ms. Beard.

Allstate obviously has a financial interest in the outcome of this dispute. The same accident benefits, however, are available to Ms. Shaw from either Allstate or Belair. There was no allegation that there was any financial or other incentive for Ms. Shaw, Ms. Barrett, Mr. Barry Robertson, or Mr. Digby to lie in this proceeding.

Accordingly, I find that neither Ms. Shaw nor Mr. Digby considered themselves to be cohabiting or living in a conjugal relationship at the time of this accident, which I find accords with the preponderance of the objective evidence in this case. Therefore, I find that Ms. Shaw was not a spouse of Mr. Digby at the time of this accident. Hence, Allstate is the insurer responsible for paying any statutory accident benefits to which Ms. Shaw may be entitled.

Expenses:

The Applicant's position was successful in this hearing. The Applicant was entitled to be represented by counsel. Accordingly, I exercise my discretion pursuant to subsection 282(11) of the Act, and order Allstate to pay the Applicant her expenses incurred in respect of this arbitration proceeding.

At the end of this hearing, Belair suggested that the expenses of the Insurers in this arbitration proceeding be decided on the basis of "to the victor go the spoils." I was not however referred to any statute or case law allowing an award of expenses from one insurer to another. I therefore decline to make such an order.

Order:

1. Ms. Shaw and Mr. Digby were not spouses at the time of the motor vehicle accident. Therefore, Allstate is the insurer responsible for paying any statutory accident benefits to which Ms. Shaw may be entitled resulting from the December 31, 1994 accident.

2. Ms. Shaw is entitled to her expenses incurred in respect of this arbitration proceeding.

June 30, 1997

Lawrence Blackman Arbitrator

Date

Footnotes

1. 1The Statutory Accident Benefits Schedule — Accidents after December 31, 1993, and before November 1, 1996, called "the Schedule" in this decision. The Schedule is Ontario Regulation 776/93, as amended by Ontario Regulation 635/94.
2. 2(1979) 1979 CanLII 1613 (ON HCJ), 24 O.R. (2d) 248 (Ont. C.C.), at 251.
3. 3(1980), 1980 CanLII 1537 (ON HCJ), 17 R.F.L. 376.
4. 4Alfred and Allstate Insurance Company of Canada (November 30, 1995), A-009267, Alfred and State Farm Mutual Automobile Insurance Company (November 30, 1995), A-009268, at 7.
5. 5(1990) 1980 CanLII 3813 (BC SC), 21 R.F.L. (2d) 40 (B.C.C.C.).