Neutral Citation: 1997 ONICDRG 81

OIC A96-000393

ONTARIO INSURANCE COMMISSION

BETWEEN:

HENRY A. GOOS

Applicant

and

GENERAL ACCIDENT ASSURANCE COMPANY OF CANADA

Insurer

AND BETWEEN:

HENRY A. GOOS

Applicant

and

NON-MARINE UNDERWRITERS, MEMBERS OF LLOYD'S OF LONDON

Insurer

DECISION

Issues:

The Applicant, Henry A. Goos, was rendered "an incomplete quadriplegic" as a result of a motor vehicle accident which took place on November 19, 1990 (the "accident"). He applied to both General Accident Assurance Company of Canada ("General Accident") and Non-Marine Underwriters, Members of Lloyd's of London ("Lloyd's"), for statutory accident benefits payable under Ontario Regulation 672.¹ Lloyd's and General Accident agreed to pay benefits on an equal basis pending resolution of their priority dispute. The parties were unable to resolve their disputes through mediation and Mr. Goos applied for arbitration under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

The preliminary issue in this hearing is:

1. Which insurance company, General Accident or Lloyd's, is responsible for paying any statutory accident benefits to which Mr. Goos may be entitled?

The substantive issues in this hearing are:

1. What is the monetary value for lodging which should be included in Mr. Goos' gross weekly income?

2. What is the monetary value for food which should be included in Mr. Goos' gross weekly income?

3. What is the monetary value for alcohol which should be included in Mr. Goos' gross weekly income?

4. What is the monetary value for tobacco which should be included in Mr. Goos' gross weekly income?

Mr. Goos also claims interest on any overdue payments, and his expenses incurred in respect of this arbitration proceeding.

Result:

1. Lloyd's is the insurer responsible for paying any statutory accident benefits to which Mr. Goos may be entitled.

2. The amount of $103.93 for lodging shall be included in Mr. Goos' gross weekly income.

3. The amount of $109.62 for food shall be included in Mr. Goos' gross weekly income.

4. No amount for alcohol shall be included in Mr. Goos' gross weekly income.

5. The amount of $58.05 for tobacco shall be included in Mr. Goos' gross weekly income.

6. Mr. Goos is entitled to interest on any overdue payments, in accordance with subsection 24(4) of the Schedule.

7. Mr. Goos is entitled to his expenses incurred in respect of this arbitration proceeding.

Hearing:

The hearing was held in Windsor, Ontario, on September 16 and 17, 1996, and by telephone conference on April 10, 1997, before me, Lawrence Blackman, Arbitrator.

Present at the Hearing:

Applicant:

Henry A. Goos

Mr. Goos' Representatives:

William C. Goldstein Barrister and Solicitor

General Accident's Representative:

James K. Brown Barrister and Solicitor

Lloyd's

Graeme Mew

Representatives:

Barrister and Solicitor

Melissa J. Catalano

Barrister and Solicitor (on April 10, 1997)

Witnesses:

1. Mrs. Mary-Jean Voutt-Goos

2. Mr. Henry A. Goos

Exhibits:

1. Copy of letter from Labatt Breweries Ontario, dated September 11, 1996.

2. Copy of excerpt from Statistics Canada, Consumer prices and price indexes, October - December 1990.

3. Copy of excerpt from Statistics Canada, Family Expenditure in Canada, 17 Metropolitan Areas 1990.

4. Original calendars for Cooper Court, A Fun Eatery, October and November 1990.

5. Original report of Coopers & Lybrand, dated September 20, 1993.

6. Copies of three unaudited Financial Statements for Cooper Court Hotel Limited, for the years ending June 30, 1989, 1990 and 1991.

7. Copies of three income tax returns for Henry Goos, for the years 1988, 1989, 1990.

8. Copies of correspondence from Revenue Canada, dated August 12, 1991, October 28, 1991, January 15, 1992, and two further documents each dated March 23, 1992.

9. Copy of letter from Richardson & Laken, Chartered Accountants, dated November 20, 1991.

10. Copy of Ontario Automobile Insurance, Employer's Confirmation of Income form, signed January 23, 1991.

Evidence and Findings:

1. Which insurance company, General Accident or Lloyd's, is responsible for paying any statutory accident benefits to which Mr. Goos may be entitled?

Background Facts:

The parties agree on the facts relevant to the preliminary issue.

On November 19, 1990, Mr. Goos was injured in a single car accident ("the accident"). The vehicle driven by Mr. Goos was owned by All Car Sales and Service, and was insured by General Accident under a standard Garage Automobile Policy. The Policy included an "Additional Insured Endorsement" which specifically listed the names of the Applicant and his mother, and provided coverage for "loss, damage, injury or death arising from the ownership, use or operation of any automobile" provided to them by the insured, even if the vehicle was provided for their "regular or frequent use." An additional premium was paid for this endorsement for third party liability and property damage coverage. No additional premium was paid for any additional Accident Benefits coverage.

At the time of the accident, Mr. Goos was a "named insured" under a policy of automobile insurance issued by Lloyd's.

Following the accident, Mr. Goos first applied to General Accident for statutory accident benefits. General Accident refused Mr. Goos' application, maintaining that he was not a "named insured" under its policy. Mr. Goos' application was subsequently forwarded to Lloyd's. Lloyd's initially paid full accident benefits to Mr. Goos. Ultimately, the two Insurers reached an agreement to share expenses and benefits on a 50/50 basis, pending resolution of their priority dispute.

The Law:

Section 268 of the Insurance Act, R.S.O. 1990, c. I.8, as amended (the "Act") sets out a priority scheme to determine which insurer is liable to pay statutory accident benefits. Under this provision, Mr. Goos' first recourse is against the insurer of an automobile in respect of which he is "an insured."

The parties agree that Mr. Goos was "an insured" in respect of both the General Accident and Lloyd's automobiles.

The next level of the priority pyramid requires Mr. Goos to claim statutory accident benefits against the insurer under whose policy he is a "named insured."

The parties agree that Mr. Goos was a "named insured" under the Lloyd’s policy. The Insurers dispute whether Mr. Goos was a "named insured" under the General Accident policy. If Mr. Goos is a "named insured" under the General Accident policy, then subsection 268(5.2) of the Act requires Mr. Goos to claim benefits against General Accident, as he was an occupant of their vehicle at the time of the accident. Otherwise, Lloyd's is responsible for payment of statutory accident benefits.

The question in this case is whether the fact that Mr. Goos was specifically named in the General Accident endorsement as a driver elevates him to the status of a "named insured" under that policy for the purposes of section 268.

Lloyd's submits that it does. It relies on the Manitoba Court of Appeal decision of Blair et al v. Royal Exchange Assurance, [1968] 63 W.W.R. 511 which rejected the defence that an insurer was not liable to indemnify a driver specifically named as being permitted to drive the vehicle described in the policy. The Court held that as the defendant insurance company took a premium from the driver and clearly intended to insure him in some manner, the driver was a "named insured."

However, it is unclear as to what, if any significance, the Manitoba Court of Appeal was placing on the words "named insured," as the statutory provision it was considering only used the term "insured."

Blair was considered by the Ontario Court of Appeal. Catzman J.A. commented in dicta that:

If however Blair stands for the proposition that the naming of a person as a principal or occasional driver in an owner's policy in respect of a vehicle owned by someone else elevates the named driver to the status of a named insured in the policy, we respectfully disagree.²

I find that the General Accident endorsement in this case merely lists Mr. Goos as an exception to a provision which states that coverage will not be provided to persons to whom the "insured" regularly or frequently provides the insured automobile unless otherwise stated.

There is a distinction between noting an individual's name so as to prevent insurance coverage from being excluded, and being a "named insured." I agree with the comments of Director's Delegate Naylor that:

the term "named insured" has a common and well-understood meaning in insurance. It means the person specified in the contract or certificate of insurance as the insured.³

"Adrianus Goos o\a All Car Sales & Service" is clearly identified in the General Accident policy as being both the applicant (for automobile insurance) and "the insured."

Accordingly, I find that adding the name of Henry Goos (identified on the endorsement as the son of the "insured") to the General Accident endorsement does not elevate Henry Goos to the status of a "named insured."

In the alternative, Lloyd's submits that the provisions of the Schedule govern the interpretation of the term "named insured" as found in section 268 of the Act. While the Schedule does not define the term "named insured," Lloyd's relies on the decision of Arbitrator Makepeace in Sittler and Canadian General Insurance Company, Sittler and Pilot Insurance Company,⁴ which held that subsection 3(1) of the Schedule⁵ creates a new class of insured, the "as if a named insured," who have the same rights, including priority rights, as "named insureds." Lloyd's submits that Mr. Goos falls within this new class of insureds.

Arbitrator Makepeace, however, subsequently held in Adabi-Ghomi and Allstate Insurance Company of Canada, Adabi-Ghomi and Wellington Insurance Company⁶ that:

The Sittler decision has been considered in several arbitration decisions and at least one court decision . . . 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.

I agree with the Adabi-Ghomi decision. I find that subsection 3(1) of the Schedule is concerned with entitlement to accident benefits, not with the priority scheme under section 268 of the Act, and hence does not expand the meaning of "named insured."

In the further alternative, Lloyd's relies on section 270 of the Act, which states that:

270. Any person insured by but not named in a contract to which section 265 or 268 applies may recover under the contract in the same manner and to the same extent as if named therein as the insured, and for that purpose shall be deemed to be a party to the contract and to have given consideration therefor.

Lloyd's argues that the word "manner" in this provision means "method of proceeding," which includes determinations under the priority section. Hence, Mr. Goos, as an "insured" under the Lloyd's policy, should be treated as if he were a "named insured."

I disagreed with this submission in Crosbie⁷, where I found that the purpose of section 270 was to allow individuals who were not parties to an insurance contract, to take action and to recover from insurers as if they were parties to the contract of insurance, whereas section 268 specifically sets out, for the purpose of the priority rules only, a "higher" and distinct class of insured, that is, the "named insured."

I therefore follow the recent Ontario Court of Appeal decision in Warwick,⁸ which held that section 210 "does not create an entitlement that does not otherwise exist." Hence the section cannot be used to expand the class of persons covered by or the definition of the term "named insured."

Lastly, Lloyd's relies upon the principle of "fair exchange." It submits that as General Accident specifically identified Mr. Goos as a driver, was able to assess his particular risk, and charged a substantial extra premium for his inclusion on the endorsement, Mr. Goos must be treated as a named insured under the General Accident policy for the purpose of determining his entitlement to no-fault benefits.

I do not agree.

Lloyd's argument of "fair exchange" hinges on the premise that the priority rules should be rewritten to allow an adjudicator to decide, on a case by case basis, which insurer is responsible for payment of statutory benefits based on which insurer was best able to identify, assess, and charge an applicant. I do not find that to be the intent of the legislation. Rather, the legislature has devised a simpler, albeit more arbitrary priority scheme, so as to avoid uncertainty in determining which insurer is responsible for paying statutory accident benefits.

I hence agree with the Court of Appeal in Warwick, that where liability for no-fault benefits is clear (and in this case it is agreed that Mr. Goos was "an insured" in respect of both General Accident and Lloyd's), "the payment of an additional premium cannot override the terms of the statute and the Schedule." Director's Delegate Naylor likewise held in Portch that the doctrine of reasonable expectations was developed to assist in the interpretation of insurance contracts, particularly where there is ambiguity, but that nothing before her suggested that the doctrine could "operate to override the express provisions of the legislation and regulations."⁹

I therefore find that Mr. Goos is not a named insured under the General Accident policy. Accordingly, Mr. Goos is a named insured only under the Lloyd’s policy. Lloyd’s is hence responsible for paying any statutory accident benefits to which Mr. Goos may be entitled.

2. Calculation of gross weekly income

(a) Food and Lodging

At the time of the accident, Mr. Goos was an officer and shareholder of Cooper Court Hotel Limited ("Cooper Court"). Cooper Court owned an establishment outside of Windsor, Ontario, consisting of a downstairs kitchen, a licensed bar, a restaurant (operated by Mr. Goos' sister), and upstairs rental units. Approximately 80 to 100 customers frequented the bar on Friday and Saturday nights.

Mr. Goos was also the manager of the Cooper Court Hotel. His responsibilities included hiring, purchasing, bookkeeping, and supervising, as well as some bartending and waiting on tables. The Applicant worked from 9:00 a.m. until 2:00 a.m. the next morning (with a couple of hours off in the afternoon). On Sundays however, the bar closed at 9:00 p.m. Mr. Goos spent the mornings preparing the bar for the noon opening, and attending to matters which could not be done while the bar was open. The bar was open seven days a week, 365 days a year.

Mr. Goos and his wife, Mrs. Voutt-Goos, testified that Mr. Goos' remuneration from his managerial position consisted of periodic cash draws, as well as free accommodation (being a three-bedroom apartment), food, alcohol and cigarettes provided by Cooper Court.

The parties agree on the amount of Mr. Goos' weekly draw, based on the four week period before the accident. The parties also agree in principle that the reasonable value of goods and services provided to Mr. Goos by Cooper Court can be included in his gross weekly income.¹⁰The parties disagree however as to the amount that should be included in Mr. Goos' income in respect of such non-monetary benefits.

The parties agree, based on Statistics Canada averages, that the value of the accommodation provided to the couple was $103.93 per week, and that the value of food provided was $109.02 per week. The parties disagree as to whether these amounts in toto should be included in Mr. Goos gross weekly income, or whether they should be split between Mr. Goos and his wife.

Prior to the accident, Mrs. Voutt-Goos was employed as a registered nurse in Detroit working twelve hour or twelve and one half hour shifts, two or three days a week.

Mrs. Voutt-Goos also sometimes helped out at the Cooper Court bar by either waiting on tables or cleaning up, as well as preparing promotional material and helping plan special events. She also helped generate business by socializing with customers. There was conflicting evidence as to whether Mrs. Voutt-Goos did the bank reconciliation. Both spouses testified however that Mrs. Voutt-Goos was neither employed by Cooper Court nor did she receive any income from the company during the relevant period, although sometimes she would keep tips. Mrs. Voutt-Goos testified that she had no ownership interest in Cooper Court.

The Insurers argued that Mrs. Voutt-Goos remuneration for the services which she provided to Cooper Court was the accommodation, food, alcohol, and tobacco enjoyed by her, rather than any direct financial compensation. The Insurers therefore submitted that the total value of the non-monetary benefits received by the couple should be divided between Mr. Goos and his wife.

I do not agree that the degree to which the benefits are respectively enjoyed by the spouses should determine to whom the non-monetary benefit should be credited. Rather, the determining factor must be the extent to which the benefits are earned.

Mr. Goos worked 15 hour days exclusively at Cooper Court. Mrs. Voutt-Goos worked long shifts outside of the business. Her work at Cooper Court was intermittent, unscheduled, and subject to her availability and wishes.

Furthermore, the value of the services provided by the spouses differed. Mr. Goos performed managerial duties. He was ultimately responsible for every aspect of the business. Mrs. Voutt-Goos' duties were largely unskilled labour.

If I were to divide the food and lodging benefit on the basis of the value of the work provided, a much larger portion would be attributed to Mr. Goos. However, I have no evidence as to the hours Mrs. Voutt-Goos worked nor do I have any evidence of the relative monetary value of the services provided by each spouse. I am therefore unable, even if I were so inclined, to divide this benefit between Mr. Goos and his wife.

I do find however that the value of Mrs. Voutt-Goos' sporadic, voluntary assistance would be fairly compensated by the unlimited beer and cigarettes provided to her by Cooper Court.

I am furthermore satisfied that the accommodation and food provided by Cooper Court were as a result of the services provided by Mr. Goos, and as a result of his status alone. Accordingly, I find that the full agreed value of the food and lodging provided by Cooper Court should be attributed to Mr. Goos.

(b) Alcoholic Beverages

Mr. Goos testified that on "normal days" he drank eight or nine bottles of beers during an eight or nine-hour period starting at about 4:00 p.m. On the one or two "quiet days" a week, he might consume 12 to 15 beers. He was not aware of any code of conduct restricting alcoholic consumption by managerial staff during working hours. In fact, Mr. Goos testified that his managerial duties included drinking and smoking with his customers, in order to promote business. He also occasionally drank hard liquor. Mr. Goos testified that he now rarely drinks, due to his accident related injuries.

Mr. Goos testified that he has never been diagnosed as an alcoholic, nor has he seen a doctor regarding his use of alcohol. He indicated that although he never drank enough to become intoxicated, he would not drive following a night of drinking.

Mrs. Voutt-Goos testified that at the time of the accident, she generally drank two or three beers a night, but that two or three nights a week, she would have six to twelve beers. She had observed her husband drink in excess of ten to twelve beers a day. She testified that she and her husband would drink 40 ounces of hard liquor every month or two.

Counsel agreed that in 1990, a case of beer consisting of 24 bottles cost a licensed establishment $18.90, excluding the return on deposits. The Applicant submitted that he and his wife drank 4.5 cases (or 108 bottles) of beer per week, with a value of $85.05. The Applicant further submitted that the value of hard liquor provided by Cooper Court to the couple was $5.78 per week. The total value of the couple's claimed yearly alcohol consumption was therefore $4,723.16.

(c) Cigarettes

Mr. Goos testified that in 1990 between rising at 8:00 a.m. and retiring at 2:00 a.m. the next day, he had a lit cigarette going all the time, and that he averaged four packs of cigarettes a day, each pack consisting of 20 cigarettes. His wife confirmed that the Applicant was a chain smoker who smoked four or five packs daily. She testified that her husband got up to smoke several times during the night, and that the ashtray that was cleaned the night before would be filled with cigarette butts the following morning. Mr. Goos testified that he presently smokes two large packs a day, 25 cigarettes to a pack. The parties agreed that in 1990, a carton of 200 cigarettes had a retail cost of $33.17.

Mr. Goos testified that he has never seen a doctor as a result of his smoking.

Mrs. Voutt-Goos testified that in 1990 she smoked on average two packs of cigarettes daily.

The Applicant's position was that he and his wife smoked 42 packs or 4.2 cartons of cigarettes a week. This equalled $139.19 a week, or $1,231.88 a year.

Cooper Court's unaudited financial statement for the fiscal year ending June 30, 1990, showed food and tobacco sales of $25,183, with a cost of $19,535 (the latter including the cigarettes smoked by Mr. Goos and his wife). Mr. Goos testified that most of the items under this heading were tobacco.

Even assuming that all items sold under the "food and tobacco" heading were cigarettes, and not adjusting the amount claimed by any markup (Mr. Goos testifying that he could not recall the cigarette markup), the Applicant's position would be that he and his wife smoked in excess of 20% of all tobacco purchased by Cooper Court. The ratio would be considerably higher if the assumptions noted above were incorrect.

Mr. Goos testified that he was audited by Revenue Canada subsequent to the accident. He did not advise Revenue Canada of the beer or cigarettes which Cooper Court provided to him. His 1990 Income Tax Return only shows employment income of $11,600, all under the heading of "housing, board, and lodging." Alcohol and cigarettes were not declared as a taxable benefit.

(d) Law and Analysis

I agree with Arbitrator Palmer that the principle ex turpi causa non oritur actio (out of an immoral consideration, an action cannot arise) does not defeat an applicant's claim to include as income, remuneration not reported in his or her income tax return.¹¹ In this case, the Applicant's cause of action arises not out of his failure to report income, but rather out of an alleged breach by the Insurer of a contract of automobile insurance.

Arbitrator Palmer further stated that had the Applicant in the case before her "brought forward sufficient, compelling evidence of greater income, I would have found in his favour, regardless of the false income tax returns." In the Ntiri¹² decision, Arbitrator Sampliner accepted the applicant's claim where "independent, credible and reliable" evidence corroborated the Applicant's testimony as to undeclared income.

In this case, the Employer's Confirmation of Income form, completed by Mr. Adrianus Goos, who was both the Applicant's father and the President of Cooper Court, states that the Applicant had a gross income in the 52 weeks prior to the accident of $42,225.00, consisting of a salary of $15,600.00, $21,825.00 for meals and lodging, and $4,800.00 for auto benefits. There is no mention of any benefit for tobacco or alcohol. No evidence was received that "meals and lodging" encompassed tobacco or alcohol.

Henry Goos' 1989 income tax return shows a total income of $12,000.00. There is no notation of any non-monetary income. Mr. Goos' 1990 return, which was prepared after the accident, shows income of $11,600.00, which is described in his T4 as a housing, board, and lodging benefit. No alcohol, tobacco or other non-monetary benefit is noted. In addition, no cash draws are declared.

No explanation was received as to why the Applicant's father had specified that his son's food and lodging benefit was more than $4,000.00 greater than the amount stated in the T4. Nor was any explanation provided as to why the amount now claimed by the Applicant as having been received for all non-cash benefits ($23,065.64) is higher than both his T4 figure and the employer's confirmation.

Mr. Goos testified that his 1990 draws were shown as a shareholder's loan. However, for the fiscal years ending June 30, 1989, 1990, and 1991, the only shareholder's loan is found in 1990, and then only in the amount of $6,574.00. That is less than half of what the Applicant's father declared to be his son's salary. Furthermore, the Applicant confirmed that between January and November 1990, he received draws in the amount of $18,941.00, as noted in his accountant's letter dated November 20, 1991. These discrepancies were not explained.

The Applicant conceded in submissions that his income tax returns did not accurately show his income from Cooper Court. Mr. Goos did not disagree with the statement in the report of Coopers & Lybrand, that Mr. Goos' accountant had advised that:

1990 was the first year that a taxable benefit for housing, board and lodging had been included in Henry's T4 slip. In addition, Mr. Giles [the Applicant's accountant] has told [sic] that the reason for the inclusion of a taxable benefit for housing, board and lodging on Henry’s T4 slip was to substantiate his claim for weekly income benefits.

Mr. Goos however stated that due to a head injury (for which no medical evidence was presented) the period before the accident was a "blur." This statement however only further calls into question the reliability of Mr. Goos' oral evidence as to his pre-accident consumption, which was already questionable based on the evidence, admissions, and inconsistencies noted above.

I was not referred to any medical evidence, or credible documentary evidence which was created prior to the accident, as to Mr. Goos alcohol and tobacco use, nor did any independent witness testify as to his pre-accident consumption. I do not find Mrs. Voutt-Goos to be an independent witness.

However, although there is no independent, credible, and reliable evidence to corroborate the Applicant's testimony as to the amount of alcohol and tobacco he states that he consumed pre-accident, I am satisfied that some amount of alcohol and tobacco was consumed by the Applicant prior to the accident, which was provided to him by Cooper Court as part of his remuneration.

I am however unable to determine an amount of pre-accident alcohol consumption, there being an absence of any reliable testimony or statistical evidence.

Regarding cigarette consumption however, I am persuaded on a balance of probabilities, that the Applicant now smokes approximately two large packs of cigarettes a day, and I find that the Applicant has established that he at least smoked roughly that amount prior to the accident. Such concerns as I may have as to the exact number of cigarettes smoked pre-accident are balanced by the fact that I am satisfied that there was also some level of pre-accident alcohol consumption, which is not otherwise being compensated.

As noted above, I find that any alcohol or cigarettes consumed by Mrs. Voutt-Goos pre-accident, compensated the services which she provided to Cooper Court, and should not be included in Mr. Goos' remuneration.

Two large packs of cigarettes a day equal 350 cigarettes a week. The cost of 200 cigarettes, in accordance with Exhibit 2, is $33.17. Accordingly, I find the value of the cigarettes smoked by Mr. Goos pre-accident to be $58.05 per week, which sum shall be included in his gross weekly income.

Expenses:

The Applicant has been partially successful in this hearing. I exercise my discretion to award Mr. Goos his expenses of this arbitration proceeding.

Order:

1. Lloyd’s is the insurer responsible for paying any statutory accident benefits to which Mr. Goos may be entitled.

2. The amount of $103.93 for lodging shall be included in Mr. Goos' gross weekly income.

3. The amount of $109.62 for food shall be included in Mr. Goos' gross weekly income.

4. No amount for alcohol shall be included in Mr. Goos gross weekly income.

5. The amount of $58.05 for tobacco shall be included in Mr. Goos' gross weekly income.

6. Mr. Goos is entitled to interest on any overdue payments, in accordance with subsection 24(4) of the Schedule.

7. Mr. Goos is entitled to his expenses incurred in respect of this arbitration proceeding.

May 9, 1997

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. 2Collins v. Wright [1989] O.J. No. 2416 (Ont. C.A.).
3. 3Royal Insurance Company of Canada and Markel Insurance Company of Canada and Portch (December 17, 1996), Appeal P-008360 and P-007701.
4. 4(December 3, 1993), OIC A-000951 and OIC A-004495.
5. 5Section 3(1) states in part that if an insured automobile had been made available for the regular use of an individual by a business entity, the Schedule applies as if the individual were a named insured.
6. 6(June 28, 1996), OIC A-013683 and OIC A-014141.
7. 7Crosbie Sr. and Co-operators General Insurance Company, Crosbie Sr. and Pilot Insurance Company (October 16, 1995), OIC A-009908 and OIC A-012239.
8. 8Warwick v. Gore Mutual Insurance Company 1991 CanLII 7357 (ON CA), [1991] O.J. No. 114, No. C23611.
9. 9Ibid, at page 22.
10. 10This principle is enunciated in inter alia, the decision of Najem and Axa Insurance Company, Najem and Economical Mutual Insurance Company (July 21, 1993), OIC A-003115 and OIC A-003116.
11. 11Lopes and Federation Insurance Company of Canada (November 9, 1992), OIC A-000602.
12. 12Ntiri and Prudential of America General Insurance Company (Canada) (April 19, 1993), OIC A-002213.