Financial Services Commission of Ontario

Commission des services financiers de l’Ontario

Neutral Citation: 2003 ONFSCDRS 152

Appeal P01-00032

Appellant

and

Respondent

Before:

Nancy Makepeace

Representatives:

Juan F. Carranza for Ms. Cruz

Christopher J. Schnarr for Royal

Hearing Date:

May 20, 2003

Under section 283 of the Insurance Act, R.S.O. 1990, c.I.8, as amended, it is ordered that:

The appeal is dismissed, and the arbitration order, dated June 13, 2001, is confirmed.
Ms. Cruz shall pay one half of Royal's appeal expenses, as agreed or assessed.

October 29, 2003

Nancy Makepeace

Director's Delegate

Date

This appeal concerns the definition of "insured person" in s. 2 of the SABS-1996¹ and s. 4.1 of the policy.² Ms. Cruz is a Mexican citizen who arrived in Toronto on August 1, 1999. On August 28, 1999, she was injured in a single-vehicle accident while traveling in Quebec in a rented van driven by a friend. She claimed Ontario accident benefits from Royal & SunAlliance Insurance Company of Canada ("Royal"), which insured the van. Royal denied benefits on the basis that Ms. Cruz was not an "insured person." Because the accident occurred outside Ontario, and Ms. Cruz was not the named insured, specified driver, the spouse or same-sex partner of the named insured, or the dependant of the named insured, spouse or same-sex partner, she could only claim against Royal if she was a "resident of Ontario," as required under paragraph (c) of the definition of "insured person." Royal took the position she was not an "insured person" under its policy, and the Arbitrator agreed.

Ms. Cruz appealed. I am not persuaded the Arbitrator erred in law. My reasons follow.

A. Introduction

The background facts were undisputed. Ms. Cruz has lived in Mexico her entire life. She was employed as a public accountant by a Mexican auto parts company that had an expanding international business. Her employer agreed to pay her to study English in Canada, after which she would return to head a new department. On August 1, 1999, Ms. Cruz arrived in Toronto, on a visitor's visa, to begin her course at a Toronto language school. Her passport stamp indicated she must leave Canada by the end of December 1999, and she had a return ticket dated December 20, 1999.

It is undisputed that Ms. Cruz had to prove she is an "insured person" in order to claim accident benefits from Royal. "Insured person" is defined in s. 2 of the SABS-1996:

"insured person", in respect of a particular motor vehicle liability policy, means,

(a) the named insured, any person specified in the policy as a driver of the insured automobile, the spouse or same-sex partner of the named insured, and any dependant of the named insured, spouse or same-sex partner, if the named insured, specified driver, spouse, same-sex partner or dependant,

(i) is involved in an accident in or outside of Ontario that involves the insured automobile or another automobile, or

(ii) is not involved in an accident but suffers psychological or mental injury as a result of an accident in or outside of Ontario that results in a physical injury to his or her spouse, same-sex partner, child, grandchild, parent, grandparent, brother, sister, dependant, spouse's dependant or same-sex partner's dependant,

(b) in respect of accidents in Ontario, a person who is involved in an accident involving the insured automobile, and

(c) in respect of accidents outside Ontario, a person who is an occupant of the insured automobile and who is a resident of Ontario or was a resident of Ontario at some point during the 60 days before the accident;

The parties agreed that Ms. Cruz did not fall within paragraphs (a) or (b). Therefore, she had to prove she came within paragraph (c).

The arbitration hearing was held over two days in May 2001. Since the term "resident" is not defined in the Insurance Act or the SABS, the Arbitrator considered court decisions from insurance and other contexts. He concluded that residency requires a permanent, indefinite or long-term stay. The factual dispute was about the nature and intended duration of Ms. Cruz' stay in Ontario. The Arbitrator heard oral evidence from Ms. Cruz, her brother, and five other witnesses, including representatives of her language school, her employer, Citizenship and Immigration Canada, and Royal. An interpreter assisted Ms. Cruz, her brother, and the representative of her employer. The Arbitrator did not accept Ms. Cruz' evidence that she intended to stay for 12 to 18 months. He concluded that her plans after December 1999 were "still very much 'up in the air'" at the time of the accident.³ Therefore, the Arbitrator concluded Ms. Cruz did not meet the residency requirement.

Ms. Cruz disagrees with the Arbitrator's assessment of the evidence. She submits that he failed to give the definition of "insured person" a broad, liberal and remedial interpretation, and erred in his interpretation of s. 57. I am not persuaded the Arbitrator erred.

Ms. Cruz makes two new arguments on appeal. She submits that she has recourse against Royal under s. 4.1 of the policy, which extends coverage beyond that provided in s. 2 of the SABS-1996. In addition, she submits that the Arbitrator's interpretation offends s. 7 and s. 15 of the Canadian Charter of Rights and Freedoms.⁴ I reject both submissions.

B. The SABS-1996 – "resident of Ontario"

After reviewing the evidence and the case law, the Arbitrator drew the following conclusions:

In interpreting the term "resident" on the basis of the established case law, I find that Ms. Cruz has not met her onus of establishing that she was a resident of Ontario at any material time. Ontario was not Ms. Cruz' "settled or usual abode," to use the words of Kerwin J.⁵ She did not have a history of habitually returning to the province, as in Mann⁶ or Parkes.⁷ There was certainly no intent to make a permanent home in Ontario (as stated in Olson),⁸ nor do I find that there was an intention, as required in MacPherson,⁹ to make a home in Ontario for an indefinite period.

Ms. Cruz' own evidence, at its realistic best, places her in Ontario for a maximum fixed period of some 12 to 18 months, not for an indefinite length of time. The arrangements, however, which she had in place at the time of the accident regarding her schooling, airline transportation, homestay and passport requirements, make it more likely that her stay in Ontario would have ended in December 1999. The limited possessions Ms. Cruz brought with her and the type of accommodation which she had in Toronto were more consistent with a sojourn than with establishing residency. Her settled intention was to rejoin her family, her friends and her fiance in Mexico, where she would resume her employment in the new position to which she had been promoted. What was indeterminate was only whether Ms. Cruz would indeed ever return to Toronto. Mexico was where she had left most of her possessions. Mexico was where she continued to receive her mail. Mexico was presumably where she paid her taxes and had any bank accounts.

While Thomson and succeeding cases allow that one may have more than one residence, I cannot find that Ontario was a location where Ms. Cruz "regularly, normally or customarily" lived. Succinctly put, I am not persuaded that on the facts of this case, that the element (to use the words of Estey J.,¹⁰ and adopted in later insurance cases) of the permanent, the indefinite or the long-term outweighs the element of the temporary regarding Ms. Cruz'stay in Ontario.¹¹

On appeal, Ms. Cruz disputes the Arbitrator's conclusion that she was not a "resident." She focuses on the evidence of her connection with Ontario. For example, she had opened an e-mail account at the language school, though she did not have one back home, and she testified that she planned to open up a bank account here once her cash ran out. The Arbitrator was not persuaded by this evidence. He stated: "Mexico was where [Ms. Cruz] continued to receive her mail. Mexico was presumably where she paid her taxes and had any bank accounts."¹²

Ms. Cruz relies on the Arbitrator's finding, based on the evidence of an immigration official, that she probably would have been able to apply for a student visa to extend her stay in Canada.¹³She submits this would have allowed her to continue her studies indefinitely. The Arbitrator accepted that an extended stay was possible, but he was not persuaded it was "by any means a probability, as no concrete action had yet been taken."¹⁴ On appeal, Ms. Cruz gives me no basis for second guessing the Arbitrator's conclusion.

Ms. Cruz submits there was "absolutely no factual foundation" for the Arbitrator's conclusion that "it was far from a probability that Automotriz would in fact have waited 18 months for [her] to return to her employment from a paid training period abroad."¹⁵ She relies on Mr. Cordova's evidence, on behalf of her employer, that he expected her course to last up to 12 to 18 months. This was also supported by evidence from the language school that Ms. Cruz had started at the lowest of eight levels of study, and that, "on average, it takes two to three months to move from one level to another." But Mr. Cordova also stated he was optimistic Ms. Cruz would not need so long a course of study.

Other factors persuaded the Arbitrator her employer was unlikely to pay for an extended stay:

The company wished to expand, and the longer Ms. Cruz' training took, the longer this plan would be delayed. I find the haste in which Automotriz terminated Ms. Cruz' employment after the accident pertinent. Despite wishing Ms. Cruz a "speedy recovery," her employer was of the view thirteen days post-accident that it could not wait to see how much longer she might be off work.

In fact, as found by the Arbitrator:

By letter dated September 8, 1999, Automotriz terminated Ms. Cruz's employment on the basis that their expansion project could not wait for her indefinite return. A replacement was hired, who also had very little knowledge of English. Automotriz paid this new employee a salary for a six-month period to learn English full time in Mexico. For the last seven months, this employee has worked half-time (four hours a day) and studied English half-time (also four hours). The employee's study of English is coming to an end.¹⁶

This was persuasive evidence of the employer's intent that added to the evidentiary burden on Ms. Cruz. She could have met the burden by, for example, providing a written commitment by her employer. But the arrangement was not reduced to writing, and it appears the parties made no agreement as to the duration of Ms. Cruz' stay in Canada. The Arbitrator's inference that the employer viewed its support for Ms. Cruz as a business investment is consistent with common sense; that an employer would agree to pay for her salary, tuition, books, food, transportation and accommodation for an indefinite period is not. Indeed, Ms. Cruz' own evidence was that the plan was for her to return to Mexico to head its new department, a plan not consistent with an indefinite stay in Canada.

Essentially, Ms. Cruz disagrees with the Arbitrator's findings of fact. But it is not the role of an appeals adjudicator to second-guess the factual findings of an arbitrator, who had the opportunity to observe the witnesses and to consider the evidence in its entirety. Moreover, appeals of arbitration decisions are restricted to questions of law, pursuant to s. 283(1) of the Insurance Act. To succeed in her appeal, Ms. Cruz must show that the Arbitrator erred with respect to the interpretation or application of the legal principles.

I am not satisfied he erred. Indeed, the evidence strongly supports his finding that Ms. Cruz had a "settled intention to rejoin her family, her friends and her fiance in Mexico, where she would resume her employment in the new position to which she had been promoted," and that the only question was whether she would ever return to Toronto.

Finally, Ms. Cruz takes issue with the Arbitrator's reliance on Thomson v. Minister of National Revenue, 1946 CanLII 1 (SCC), [1946] S.C.R. 209, and Parkes v. Heiberg, [1992] O.J. No. 1921 (Ont. Gen.Div.), both of which dealt with the phrase "ordinary resident." The Arbitrator relied on the often-quoted passage of Estey J. in Thomson:

. . . one is "ordinarily resident" in the place where in the settled routine of his life he regularly, normally or customarily lives. One "sojourns" at a place where he unusually, casually or intermittently visits or stays. In the former the element of permanence; in the latter that of the temporary predominates. The difference cannot be stated in precise and definite terms, but each case must be determined after all of the relevant factors are taken into consideration, but the foregoing indicates in a general way the essential difference. It is not the length of the visit or stay that determines the question. (p. 231)

Ms. Cruz submits that the Arbitrator erred in relying on Thomson, which was an income tax case. That "resident" must be given a context-sensitive interpretation is well established. However, Thomson remains the leading case on residency in insurance and other contexts. Ms. Cruz has offered me no reason to believe a different test should apply in the accident benefit context.

In Parkes, the issue was whether the plaintiff was precluded from recovering damages from the Motor Vehicle Accident Claims Fund by virtue of being "ordinarily resident outside Ontario." The plaintiff was a Jamaican farm worker who had spent the last three years in Canada between June and December on a temporary work permit (not a visitor's visa). He lived in accommodations provided by his employers, received mail at that address, had a bank account in Ontario, paid income tax in Canada, and had friends and relatives in Ontario. Mullen J. reaffirmed the principles established in Thomson and other cases – that a person can be ordinarily resident in more than one place at a time, that a time-limited stay may still amount to residency, and that the issue is whether the stay is "the customary mode of life" rather than "special or occasional or casual residence." Mr. Parkes' residence was found to be "of a sufficiently permanent nature" that he was "ordinarily resident" in Ontario. Even if "ordinarily" restricts "resident," as argued by Ms. Cruz, the authorities agree that residency involves an element of "the permanent, the indefinite or the long-term" that must outweigh the temporary.¹⁷ Ms. Cruz did not put forward any alternative definition of "resident" on the basis of which she would qualify. I find no error in the Arbitrator's review of the case law.

I do not read the Arbitrator's decision as holding that a person can only be a resident if, from the outset, she intends to stay permanently, indefinitely or on a long-term basis. Reading his decision as a whole, it is clear he understood that residency is a question of fact and a matter of the degree to which the person's connection with the place is permanent or temporary.¹⁸ After considering the evidence, the Arbitrator was not satisfied Ms. Cruz intended to extend her stay beyond December 1999. As I find no error in that conclusion, I need not consider whether the outcome might have been different had Ms. Cruz persuaded the Arbitrator she intended to stay for 12 to 18 months.

The residency requirement must be understood in context. The SABS definition of "insured person" describes the scope of accident benefits coverage in terms of connectedness with Ontario. Broadly speaking, a person is an insured person under any particular policy if (a) she is the named insured, a specified driver or a spouse, same-sex partner or dependant of the named insured under the (Ontario) policy; (b) the accident occurred in Ontario and involved the insured automobile; or (c) a resident of Ontario was an occupant of the insured automobile in an accident outside Ontario. As Director Draper stated in Griffiths and State Farm Mutual Automobile Insurance Company (FSCO P01-00018, March 25, 2002), "It is not surprising," in the context of the reciprocal arrangements among the jurisdictions, that "Ontario legislation focuses on protecting people injured in Ontario accidents, and its residents injured in accidents outside Ontario. This does not mean that non-residents . . . are without recourse, but they must look to the jurisdiction in which the accident occurred, just as they could if the accident occurred in Ontario." (p. 16)

Ms. Cruz connection to Ontario was more than that of a typical tourist who visits for a week or two to explore a new country; she was here to study English, intending to stay for at least four months, and possibly longer. However, this was not enough to establish residency for purposes of the SABS. Unfortunately, the accident happened within a month of her arrival, and, perhaps for that reason, amongst others, she was not able to bring forward reliable evidence of an intention to remain on a long-term, indefinite or permanent basis.

I am not persuaded the Arbitrator erred in his interpretation or application of the case law.

B. Section 57

Ms. Cruz submits that the residency requirement in paragraph (c) of the SABS definition of "insured person" must be read together with s. 57 of the SABS. That section, found in Part XIII, "Interaction with Other Systems," allows some people who are injured in an accident outside Ontario to elect benefits under Ontario law or the law of the other jurisdiction. Section 57 is as follows:

Accidents outside Ontario

(1) If, as a result of an accident in another province or territory of Canada or a jurisdiction in the United States of America, a person insured in that jurisdiction dies or sustains an impairment or incurs an expense described in section 14, 15 or 16, the insurer shall pay, as the person may elect,

(a) benefits provided by this Regulation, other than the benefits referred to in clause (b); or

(b) benefits in the same amounts and subject to the same conditions as if the person was a resident of the jurisdiction in which the accident occurred and was entitled to payments under the law of that jurisdiction.

(1.1) Subsection (1) does not apply if the person receives benefits under the law of the jurisdiction in which the accident occurred.

(2) A person who elects to claim a benefit as provided in clause (1) (a) is thereafter eligible only for benefits referred to in that clause.

(3) A person who elects to claim a benefit as provided in clause (1) (b) is thereafter ineligible for benefits referred to in clause (1) (a).

(4) For the purpose of this section, a person is insured in the jurisdiction in which the accident occurred if the person, at the time of the accident,

(a) was authorized by law to be or to remain in Canada and was living and ordinarily present in Ontario;

(b) met the criteria prescribed for recovery under the law of the jurisdiction in which the accident occurred;

(c) was not the owner or driver of, or an occupant of an automobile registered in the jurisdiction in which the accident occurred; and

(d) was,

(i) an occupant of the insured automobile,

(ii) the named insured, a person specified in the policy as a driver of the insured automobile, the spouse or same-sex partner of the named insured or a dependant of the named insured, spouse or same-sex partner, while the occupant of any automobile,

(iii) a person who was not the occupant of an automobile and was struck by the insured automobile,

(iv) the named insured, his or her spouse or same-sex partner or a dependant of the named insured, spouse or same-sex partner and was struck by any automobile,

(v) if the named insured is a corporation, unincorporated association, partnership or sole proprietorship, a person for whose regular use the insured automobile was supplied, his or her spouse or same-sex partner or a dependant of the person, spouse or same-sex partner who suffered an impairment,

(A) while the occupant of any automobile,

(B) by any automobile while not the occupant of the automobile, or

(vi) a person struck by an automobile that was driven by a person described in subclause (i), (ii) or (v).

The Arbitrator stated, "There was no suggestion by the Applicant that she is not entitled to Quebec accident benefits."¹⁹ By the time of the appeal hearing, Quebec had recognized Ms. Cruz claim, but no benefits have yet been paid. Ms. Cruz does not claim benefits in Quebec; she claims the more generous benefits available under the SABS-1996.

For purposes of this case, the key question was whether Ms. Cruz "was authorized by law to be or to remain in Canada and was living and ordinarily present in Ontario," as required by s. 57(4)(a). Royal submits that Ms. Cruz was not authorized to remain in Canada since her visitor's visa required her to leave by December 31, 1999. To stay 12 to 18 months, as she stated was her intention, Ms. Cruz would have had to leave Canada in order to apply for a student visa for a longer period. It was undisputed that Ms. Cruz was authorized to be in Canada at the time of the accident, and to remain for four months afterwards.

However, I find no error in the Arbitrator's conclusion that s. 57 does not assist Ms. Cruz because she was not "living and ordinarily present in Ontario."

Royal relies on Mann v. The Manitoba Public Insurance Corporation, an accident benefits case.²⁰ Mr. Mann was killed in an accident in the U.S., and MPIC denied coverage on the basis he was not a "resident of Manitoba," as defined in regulation:

"resident of Manitoba" means any person

(i) who is authorized by law to be or to remain in Canada and is living and ordinarily present in Manitoba, and

but does not include a person

(ii) who is merely touring, passing through or visiting Manitoba.

Mr. Mann was 29 years old, unmarried, and lived with his parents in Winnipeg. For the five years before his death, he traveled from spring to fall with a carnival, mainly in the U.S. He took his fishing rod and golf clubs with him, but there was little evidence about his accommodations in the U.S. and no evidence of furniture or other personal possessions there. As noted by the Arbitrator, Thompson C.C.J. stated that Mr. Mann,

... in habitually returning to the place which was his home in Winnipeg for several months in each successive year, in the normal, ordinary course of his routine of life, came within the definition of "resident of Manitoba," as contained in the Regulation.²¹

In considering "ordinarily present," the judge in Mann relied on the interpretation given " ordinarily resident" in Thomson v. Minister of National Revenue, supra.

Ms. Cruz submits that she satisfies the "living and ordinarily present" test, even if she is not a "resident." She provides no judicial authority for any alternative definition under which she would qualify. As I read the cases, there seems to be little distinction between these terms. In any event, I find that "living and ordinarily present in Ontario" suggests a permanence or rootedness that does not apply to Ms. Cruz' presence in Ontario.

C. The Policy – Additional Coverage

Ms. Cruz submits that even if she is not an "insured person" under the SABS-1996, she is an "insured person" as defined in s. 4.1 of the policy:

4.1 Who is Covered – For the purposes of Section 4, insured persons are defined in the Statutory Accident Benefits Schedule. In addition, insured persons also include any person who is injured or killed in an automobile accident involving the automobile and is not the named insured, or the spouse or dependant of a named insured, under any other motor vehicle liability policy, and is not covered under the policy of an automobile in which they were an occupant or which struck them.

Section 4.1 is broader than the definition of "insured person" in the SABS in that it provides an additional head of coverage that does not include a residency requirement. The issue is whether the added coverage applies to Ms. Cruz. Ms. Cruz submits she is covered under the policy because she was "injured . . . in an automobile accident involving the automobile" (the rental car), and was "not the named insured, or the spouse or dependant of a named insured, under any other motor vehicle liability policy," and was "not covered under the policy of an automobile in which they were an occupant or which struck them." Her appeal turns on the meaning of the last clause. Ms. Cruz submits that its intent is to expand the coverage under the SABS in accordance with s. 268(2)1ii of the Act. Subsection 268(2) sets out the "cascading" priority of mandatory accident benefit coverages:

Statutory Accident Benefits

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

Liability to pay

(2) The following rules apply for determining who is liable to pay statutory accident benefits:

In respect of an occupant of an automobile,

i. the occupant has recourse against the insurer of an automobile in respect of which the occupant is an insured,

ii. if recovery is unavailable under subparagraph i, the occupant has recourse against the insurer of the automobile in which he or she was an occupant,

iii. if recovery is unavailable under subparagraph i or ii, the occupant has recourse against the insurer of any other automobile involved in the incident from which the entitlement to statutory accident benefits arose,

iv. if recovery is unavailable under subparagraph i, ii or iii, the occupant has recourse against the Motor Vehicle Accident Claims Fund.

In respect of non-occupants,

i. the non-occupant has recourse against the insurer of an automobile in respect of which the non-occupant is an insured,

ii. if recovery is unavailable under subparagraph i, the non-occupant has recourse against the insurer of the automobile that struck the non-occupant,

iii. if recovery is unavailable under subparagraph i or ii, the non-occupant has recourse against the insurer of any automobile involved in the incident from which the entitlement to statutory accident benefits arose,

iv. if recovery is unavailable under subparagraph i, ii or iii, the non-occupant has recourse against the Motor Vehicle Accident Claims Fund.

Paragraph 268(2)1.ii appears, on its face, to apply to Ms. Cruz. However, s. 268(2) does not dispense with the need to establish that the claimant is an "insured person" under a particular policy. It governs insurer priority, not coverage. Ms. Cruz submits that the Superintendent of Insurance approved the policy, pursuant to s. 227 of the Act, in order to expand the coverage provided under the SABS to ensure it complied with the Act. Section 227 prohibits insurers from using a policy not approved by the Superintendent, and authorizes him to approve a form of policy that extends the coverages provided in the Act. Ms. Cruz argues that s. 268(1), when read together with s. 227 of the Act, permits the policy to provide extended coverage beyond what is prescribed in the SABS.

Ms. Cruz relies on Miron and Old Republic Insurance Company (OIC A-007825, November 23, 1994) and the arbitration decision in Griffiths and State Farm Mutual Automobile Insurance Company, (FSCO A97-000035, March 28, 2001), reversed on appeal. The issue in Miron and Old Republic, a Bill 68 case, was whether the widow of a man killed while driving his own uninsured car could claim benefits from the insurer of the other vehicle involved in the accident. Arbitrator Mackintosh found that the deceased was not an insured person under the definition in s. 2 of the SABS-1990, but did meet the expanded definition in s. 2.2.3(g) of the policy.²²

Paragraphs (a) through (f) of s. 2.2.3 mirrored paragraphs (a) through (f) of the definition of " insured person" in the SABS-1990, but none of those paragraphs applied in the circumstances. Paragraph 2.2.3(g) was not found in the SABS-1990. It was the predecessor of s. 4.1 of the O.A.P. (the Bill 59 policy), and read as follows:

2.2.3 "insured person", in respect of this Policy, means,

(g) any person who suffers injuries as a result of an accident involving the automobile who has no recourse against any other insurer under a contract evidenced by a motor vehicle liability policy in respect of which the person is a named insured or the spouse or dependant of a named insured, or against the insurer of the automobile in which the person was an occupant or which struck the person.

In Miron and Old Republic, the insurer argued that this provision could not assist the applicant because it was not found in the SABS-1990 or the Act. This was rejected by Arbitrator Mackintosh, who relied on s. 227 and 268 to find that the policy "may provide extended benefits or coverage where approved by the Commissioner [now Superintendent] pursuant to section 227." She found that the insurer "should be bound by the terms and conditions of its own policy, even where they differ from those of the [SABS]."²³

Griffiths and State Farm, another Bill 68 case, was factually closer to this case. Mr. Griffiths, a resident of Colorado, was injured in an accident in New York. He was a passenger in a car owned by an Ontario resident and insured under an Ontario policy, and had no auto insurance. Because State Farm was authorized to transact business in New York, it was obliged to provide coverage under s. 5107(a) of the New York Insurance Law, which stated as follows:

Every Insurer authorized to transact or transacting business in this state, or controlling or controlled by or under common control by or with such an insurer, which sells a policy providing motor vehicle liability insurance coverage or any similar coverage in any state or Canadian province, shall include in each such policy coverage to satisfy the financial security requirements of article six or eight of the vehicle and traffic law and to provide for the payment of first party benefits pursuant to subsection (a) of section five thousand one hundred three of this article when a motor vehicle covered by such policy is used or operated in this state.

State Farm paid benefits under New York law, but Mr. Griffiths claimed the more generous benefits available in Ontario. As in the instant case, the policy and the insured automobile were the only links to Ontario.

The arbitrator found that s. 5107 created a statutory minimum, but did not exhaust State Farm's obligation to pay accident benefits under Ontario law; this was not a conflict of laws case. She found that Mr. Griffiths was not an insured person under the only potentially applicable paragraph in the SABS-1990 definition because he was not "living and ordinarily present in Ontario."²⁴ However, she accepted that he was covered under s. 2.2.3(g) of the policy. She relied on Miron and Old Republic and on a leading insurance law text, Automobile Insurance in Ontario,²⁵ in which Allan O 'Donnell made the following comment about the added definition in the policy:

While the authority for this extra definition of "insured person" is suspect, it would appear to be a "catch-all" provision which enables a non-resident of Ontario involved in an accident outside Ontario involving the Ontario insured vehicle to collect Ontario No -Fault Benefits provided that person has no access to no-fault benefits under any other motor vehicle liability policy.²⁶

The arbitration decision was reversed on appeal, and Zurich relies on Director Draper's appeal decision. The Director accepted that paragraph (g)

clearly was meant to expand the definition of "insured person" in the SABS-1990, extending entitlement to some people who would not otherwise be covered. The question is how far it goes. Does it extend coverage to non-resident occupants of Ontario-automobiles who are injured in accidents outside Ontario?²⁷

The Director's main point is found in the following passage:

It is not difficult to imagine a scheme in which all occupants are covered wherever the accident occurs. Why should Mr. Griffiths' coverage change during the trip to New York, while Mr. Packer's remains the same? However, that is not the approach taken in the SABS-1990, or in later versions. Instead, a clear distinction is drawn between residents and non-residents. In Warwick, the Court of Appeal stated it baldly: "Persons injured in car accidents in Ontario and Ontario residents injured in car accidents outside Ontario are entitled to receive certain benefits whether or not they are responsible for the accident."

Mr. Griffiths' interpretation would effectively negate this distinction. For accidents outside Ontario, residents would qualify under clause (b) of the definition of "insured person," and non-residents under clause (g). Not only would this give clause (g) a prominence I am not convinced it deserves, it would involve reading the definition of "insured person" in a manner that, in my view, is circular. Mr. Griffiths claims Ontario benefits from State Farm as the insurer of the automobile in which he was an occupant. He submits that he qualifies under clause (g) of the policy because he has no recourse against the insurer of the automobile in which he was an occupant — State Farm. However, the reason he has no recourse against State Farm is that clause (b) of the policy specifically limits claims to those living and ordinarily present in Ontario. At best, this is an awkward construction.²⁸

Director Draper concluded paragraph (g) was added to the policy in order to fill a specific gap in the definition of "insured person" in the SABS-1990, to ensure that coverage is available in all the situations contemplated by s. 268(2):

There is a gap in the SABS-1990 definition with respect of claims against the insurer of "any other automobile involved in the accident," as contemplated in s. 268(2)1iii of the Act. [footnote omitted] Consider an occupant of an uninsured automobile who does not have his or her own automobile insurance policy (or coverage as a spouse or dependant) who is injured when the vehicle collides in Ontario with an Ontario-insured vehicle.²⁹ Absent clause (g), the policy insuring the other vehicle would not include coverage, forcing the Motor Vehicle Accident Claims Fund to respond.

There is a similar gap for pedestrians. Subparagraph 268(2)2iii provides that if recovery is not available from the insurer of an automobile in which the person is an insured, or from the insurer of the automobile that struck him or her, the claim goes to the insurer of any other automobile involved in the incident. As an example, consider an Ontario-insured automobile colliding with an uninsured automobile that strikes a pedestrian. The pedestrian would not fit within the definition of "insured person" in the SABS-1990 in respect of the insured automobile, but would have recourse under clause (g) of the policy.

In my opinion, this is the purpose of clause (g). It defines the insurer's obligations when its vehicle is the "other automobile." While the absence of a territorial limit in clause (g) strongly suggests that it applies to accidents outside Ontario, I conclude that its function remains the same. It is limited to situations where the injured person is looking to the policy as the policy covering some "other automobile involved in the incident" — not the one in which he or she was an occupant, or which struck him or her.

The Director concluded, therefore, that paragraph (g) did not assist Mr. Griffiths.

Royal submits that Ms. Cruz circumstances are almost identical to Mr. Griffiths , and that the same reasoning applies to the almost identical language in paragraph 4.1 of the current policy. For the following reasons, I agree.

First, I should say that I accept Ms. Cruz submission that the policy extends the coverage provided in the SABS-1996, and that State Farm is obliged to provide benefits in accordance with the SABS-1996 if Ms. Cruz is an "insured person" as defined in the policy.

However, I am not persuaded that the policy extends coverage to Ms. Cruz. The part of s. 4.1 that extends coverage (the part following, "In addition,") sets out three criteria. It requires that the person claiming coverage: (i) was "injured . . . in an automobile accident involving the automobile," (ii) was "not the named insured, or the spouse or dependant of a named insured, under any other motor vehicle liability policy," and (iii) was "not covered under the policy of an automobile in which they were an occupant or which struck them." Since Ms. Cruz meets the first two criteria, her appeal turns on the meaning of the last clause.

It can be argued that the third clause merely clarifies that the extended coverage is coverage of last resort: the claimant has recourse under no other policy. That reading would support Ms. Cruz' claim. However, its effect is to "read out" the third clause, rendering it meaningless. Ms. Cruz' interpretation also asks me to disregard the use of the conjunctive operator, "and," which suggests all three criteria must be satisfied for coverage to be available. In contrast, Royal's interpretation – that s. 4.1 applies only to an otherwise uninsured person who was an occupant of or struck by a second, uninsured automobile – makes sense of all the words of s. 4.1.

Also supporting Royal's interpretation is the use of the phrase "an automobile" in the third clause of s. 4.1, which contrasts with the use of "the automobile" in the first clause. "The automobile" is the "insured automobile"³⁰ – the rental car, in this case. That "an automobile" means "another automobile" is clear in context because if that were not the case, the third clause of s. 4.1 would be redundant. Indeed, in this respect, s. 4.1 is even clearer than s. 2.2.3(g), its predecessor, which used the phrase "the automobile" in the otherwise identical last clause. I find this change was likely intended to clarify (not change) the extent of coverage.

The context of the expanded coverage provision is also important. Section 4.1 begins with:

For the purposes of Section 4, insured persons are defined in the Statutory Accident Benefits Schedule. In addition, . . .

The SABS-1996 definition is repeated here for convenience:

"insured person", in respect of a particular motor vehicle liability policy, means,

(i) is involved in an accident in or outside of Ontario that involves the insured automobile or another automobile, or

(b) in respect of accidents in Ontario, a person who is involved in an accident involving the insured automobile, and

If Ms. Cruz is right, paragraph (c) of the SABS definition of insured person is meaningless, since any occupant of the insured automobile, whether or not a resident of Ontario, would be covered under s. 4.1 of the policy for accidents outside Ontario. I reject that interpretation because it disregards the legislature's clear intent to limit outside-of-Ontario coverage to Ontario residents.

I agree with Director Draper that the reason for the added coverage provided in the policy is to ensure that the Motor Vehicle Accident Claims (MVAC) Fund remains the payer of last resort when an Ontario-insured vehicle is involved in an accident, in accordance with paragraph 268(2)1.iii of the Act. Similarly, the extended coverage ensures that a pedestrian who is struck by an Ontario-insured automobile and has no other recourse, has recourse under the Ontario policy, in accordance with paragraph 268(2)2.iii, and need not claim against the MVAC Fund.

This is a counter-intuitive result for many consumers. Ms. Cruz was a passenger in a rental car. Both the car rental agency and the Insurer must be taken to know that people often rent cars to show visitors the country, and that can include leaving Ontario. It is understandable that Ms. Cruz would have expected the rental car's policy to cover her during her visit to Quebec. However, the outcome follows from legislature's clear intent, expressed in the Act, the SABS and the policy. The provisions are complex, but I am not persuaded they are ambiguous. Like Director Draper, in Griffiths and State Farm, I do not see this as a conflict of laws case, but my reading of the policy is

influenced by the fact that Ontario legislation and automobile insurance policies are drafted in the North American context, where there are extensive reciprocal enforcement arrangements among the various jurisdictions. As a general proposition, this is done by requiring the insurer, through legislation or an undertaking, to provide the mandatory coverages established in the other jurisdictions and to respond to any action brought in another jurisdiction as if it were an insurer of that jurisdiction. It is not surprising that in this context, Ontario legislation focuses on protecting people injured in Ontario accidents, and its residents injured in accidents outside Ontario. This does not mean that non-residents such as Mr. Griffiths are without recourse, but they must look to the jurisdiction in which the accident occurred, just as they could if the accident occurred in Ontario.³¹

D. Charter of Rights and Freedoms

Ms. Cruz submits that she "has the right to rely on the state, through the Financial Services Commission, to ensure that accident benefits are paid when a person is entitled." She relies on s. 7 of the Canadian Charter of Rights and Freedoms, which reads as follows:

Everyone has the right to life, liberty and security of the person and the right not to be deprived therof except in accordance with the principles of fundamental justice.

To succeed on this ground, Ms. Cruz must establish that her claim for Ontario accident benefits engages her right to security of the person, that her exclusion from the Ontario policy deprives her of that right, and that the deprivation does not accord with the principles of fundamental justice.

I find little merit in this ground of appeal. Even if s. 7 imposes a positive obligation on the state to provide a certain minimal level of benefits, which remains an open question,³² I am not persuaded Ms. Cruz' exclusion from the definition of "insured person" was inconsistent with the principles of fundamental justice.

Ms. Cruz also submits that the definition of "insured person" in the SABS-1996 and the policy must be interpreted in accordance with the Charter's equality guarantees. Section 15(1) of the Charter reads as follows:

Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

What does "discrimination" mean? In Law Society of British Columbia v. Andrews, 1989 CanLII 2 (SCC), [1989] 1 S.C.R. 143, the first s. 15 decision of the Supreme Court of Canada, Justice McIntyre defined it this way, after summarizing the human rights jurisprudence that preceded proclamation of s. 15:

I would say then that discrimination may be described as a distinction, whether intentional or not but based on grounds relating to personal characteristics of the individual or group, which has the effect of imposing burdens, obligations, or disadvantages on such individual or group not imposed upon others, or which withholds or limits access to opportunities, benefits, and advantages available to other members of society. Distinctions based on personal characteristics attributed to an individual solely on the basis of association with a group will rarely escape the charge of discrimination, while those based on an individual's merits and capacities will rarely be so classed. (para. 37)

Since Andrews, the Supreme Court of Canada has given further definition to the Charter equality guarantees in a number of cases. In Law v. Canada (Minister of Employment and Immigration), 1999 CanLII 675 (SCC), [1999] 1 S.C.R. 497, Justice Iacobucci, writing for the unanimous Court, summarized the purpose of s. 15 as follows:

It may be said that the purpose of s. 15(1) is to prevent the violation of essential human dignity and freedom through the imposition of disadvantage, stereotyping, or political or social prejudice, and to promote a society in which all persons enjoy equal recognition at law as human beings or as members of Canadian society, equally capable and equally deserving of concern, respect and consideration. Legislation which effects differential treatment between individuals or groups will violate this fundamental purpose where those who are subject to differential treatment fall within one or more enumerated or analogous grounds, and where the differential treatment reflects the stereotypical application of presumed group or personal characteristics, or otherwise has the effect of perpetuating or promoting the view that the individual is less capable, or less worthy of recognition or value as a human being or as a member of Canadian society. Alternatively, differential treatment will not likely constitute discrimination within the purpose of s. 15(1) where it does not violate the human dignity or freedom of a person or group in this way, and in particular where the differential treatment also assists in ameliorating the position of the disadvantaged within Canadian society. (para. 51)

As a result of Law, it is now established that in deciding whether a law infringes equality guarantees, three central issues must be considered:

whether the law imposes differential treatment between the claimant and others, in purpose or effect;
whether one or more enumerated or analogous grounds of discrimination are the basis for the differential treatment; and
whether the law in question has a purpose or effect that is discriminatory within the meaning of the equality guarantee. (para. 88)

I accept that the first criterion is satisfied in this case. The definition of "insured person" in the SABS-1996 and the policy treats Ms. Cruz differently by denying her Ontario benefits because she was not a resident of Ontario.

Turning to the second criterion, since "province of residence" is not an enumerated criterion in s. 15, Ms. Cruz must establish that it is an analogous ground if she is to succeed in her equality claim. The list of analogous grounds is not closed, and there remains a level of judicial and academic debate about the appropriate approach. The prevailing view is represented by the majority judgment of Justices McLachlin and Bastarache in Corbiere v. Canada (Minister of Indian and Northern Affairs), 1999 CanLII 687 (SCC), [1999] 2 S.C.R. 203:

What then are the criteria by which we identify a ground of distinction as analogous? The obvious answer is that we look for grounds of distinction that are analogous or like the grounds enumerated in s. 15 -- race, national or ethnic origin, colour, religion, sex, age, or mental or physical disability. It seems to us that what these grounds have in common is the fact that they often serve as the basis for stereotypical decisions made not on the basis of merit but on the basis of a personal characteristic that is immutable or changeable only at unacceptable cost to personal identity. This suggests that the thrust of identification of analogous grounds at the second stage of the Law analysis is to reveal grounds based on characteristics that we cannot change or that the government has no legitimate interest in expecting us to change to receive equal treatment under the law. To put it another way, s. 15 targets the denial of equal treatment on grounds that are actually immutable, like race, or constructively immutable, like religion. Other factors identified in the cases as associated with the enumerated and analogous grounds, like the fact that the decision adversely impacts on a discrete and insular minority or a group that has been historically discriminated against, may be seen to flow from the central concept of immutable or constructively immutable personal characteristics, which too often have served as illegitimate and demeaning proxies for merit-based decision making. (para. 15)

In Corbiere, the Supreme Court of Canada found that the Indian Act's exclusion of off-reserve members of an Indian band from voting in band elections contravened s. 15 of the Charter because it deprived the claimants of a benefit – the right to participate in band governance – on an analogous ground – "Aboriginality-residence" (and the provision could not be justified under s. 1 of the Charter). However, the Court was anxious to avoid making a general finding that residence is an analogous ground:

. . . reserve status should not be confused with residence. The ordinary "residence" decisions faced by the average Canadians should not be confused with the profound decisions Aboriginal band members make to live on or off their reserves, assuming choice is possible. The reality of their situation is unique and complex. Thus no new water is charted, in the sense of finding residence, in the generalized abstract, to be an analogous ground. (para. 15)

To my knowledge, Corbiere stands alone in accepting a specific subset of residency (Aboriginal residency) as an analogous ground.

The Supreme Court dismissed a residency-related equality claim in R. v. Turpin, (1989), 1989 CanLII 98 (SCC), 48 C.C.C. (3d) 8. The accused, charged in Ontario, claimed that the Criminal Code discriminated against them by denying them the right to elect trial by judge alone, a right granted to Alberta residents charged with the same offence, and forcing them to be tried by judge and jury. (The Criminal Code was later changed to give the same election across Canada, but the amendment took effect after the ruling of the trial judge.) Justice Wilson, writing for the Court, rejected the analogous group claim because the appellants had not shown that they were "members of a 'discrete and insular minority'" who were subject to "stereotyping, historical disadvantage or vulnerability to political and social prejudice," or that they were disadvantaged apart from the distinction at issue (at p. 35). She stated, further:

I would not wish to suggest that a person's province of residence or place of trial could not in some circumstances be a personal characteristic of the individual or group capable of constituting a ground of discrimination. I simply say that it is not so here. Persons resident outside Alberta and charged with s. 427 offences outside Alberta do not constitute a disadvantaged group in Canadian society within the contemplation of s. 15. (at p. 36)

Similarly, residency-related equality claims were dismissed in two cases about referendum residency requirements: Haig v. Canada; Haig v. Canada (Chief Electoral Officer), 1993 CanLII 58 (SCC), [1993] 2 S.C.R. 995, and Siemens v. Manitoba (Attorney General), 2003 SCC 3, [2002] S.C.J. No. 69.

The issue in Haig was the residency requirement for the October 1992 federal referendum on the Charlottetown Accord. Two referenda were held under different electoral rules: one in Quebec, and one in the rest of Canada. Mr. Haig moved from Ontario to Quebec shortly before the enumeration date. He was unable to vote in the federal referendum because he was not " ordinarily resident" in an established polling division on enumeration day, and he was unable to vote in the Quebec referendum because he had not resided in Quebec for six months before voting day, as required under Quebec's referendum legislation. He challenged the federal residency rules on, inter alia, equality grounds. The majority dismissed his argument that residency was an analogous ground:

Though this may well be true in a proper case, this case is not such a case. It would require a serious stretch of the imagination to find that persons moving to Quebec less than six months before a referendum date are analogous to persons suffering discrimination on the basis of race, religion or gender. People moving to Quebec less than six months before a referendum date do not suffer from stereotyping, or social prejudice. Though its members were unable to cast a ballot in the Quebec referendum, the group is not one which has suffered historical disadvantage, or political prejudice. Nor does the group appear to be "discrete and insular". Membership in the group is highly fluid, with people constantly flowing in or out once they meet Quebec's residency requirements. As they do not exhibit any of the traditional indicia of discrimination, I cannot find that new residents of a province constitute a group which merits the creation of a new s. 15(1) category. (at p. 1044) [emphasis in original]

The issue in Siemens was a local plebiscite on video lottery terminals ("VLTs"). The town of Winkler, Manitoba passed a non-binding plebiscite banning VLTs. The next year, the province passed legislation enabling municipalities to hold binding plebiscites on VLTs, and retroactively deeming the Winkler plebiscite to be binding. The appellants were businesses that operated VLTs on their premises. They argued that the provincial statute was discriminatory because it distinguished between residents of Winkler and other Manitoba residents. This was rejected summarily based on consideration of Haig, Turpin and Corbiere:

Nothing suggests that Winkler residents are historically disadvantaged or that they suffer from any sort of prejudice. (para. 48, per Major J. for the Court)

Further, the legislation did not discriminate "in any substantive sense. . . .[T]he VLT Act directly corresponds to the circumstances of Winkler residents. The Town of Winkler was singled out . . . because it was the only municipality to have held a plebiscite on the issue of VLTs. The very purpose of that section was to respect the will of Winkler residents, as expressed in their 1998 plebiscite." (para. 49)

Ms. Cruz is not excluded from the definition of "insured person" because of any enumerated ground (for example, national origin) or any previously recognized analogous ground (for example, citizenship or Aboriginal residency). I am not satisfied that she is denied a benefit because she is a member of a "discrete and insular minority" or a historically disadvantaged group, or that her dignity or worth are implicated by her exclusion. I am not persuaded that province of residence is an analogous ground of discrimination in the context of accident benefits coverage.

I find Ms. Cruz is excluded because she was not a resident of Ontario, as defined under the SABS-1996 and the Ontario policy, when she was involved in an out-of-Ontario accident. The reason for the appeal is that Ontario and Quebec enacted different accident benefits schemes, as they were entitled to do, since insurance benefits fall under provincial jurisdiction. Peter Hogg states, "The federal system . . . operates as a general qualification of s. 15's guarantee of equality:"³³

Differences in the treatment of individuals that are caused by federalism must be able to be accommodated by the Charter of Rights. [footnote omitted] It cannot be a breach of s. 15 that the minimum wage is higher in Manitoba than it is in Prince Edward Island, or that nurses have the right to strike in Ontario but not in Alberta. These differences flow from the fact that labour law is a matter coming within property and civil rights in the province, which is one of the topics allocated to jurisdiction of provincial Legislatures by s. 92 of the Constitution Act, 1867. The federal distribution of powers is a fundamental characteristic of the Constitution of Canada.³⁴ Differences between provincial laws are the inevitable outcome of ten provincial Legislatures, each exercising extensive legislative authority, each acting independently, and each accountable to a different local population. " There can be no question, then, that unequal treatment which stems solely from the exercise, by provincial legislators, of their legitimate jurisdictional powers cannot be the subject of a s. 15(1) challenge on the basis only that it creates distinctions based on province of residence."³⁵

Although this would be the result even if Ms. Cruz were entitled to no benefits as a result of her exclusion from the Ontario accident benefit scheme, I find further support for my conclusion in the existence of a separate accident benefit scheme in Quebec. Any differences in the level of benefits provided do not, without more, engage the Charter.

IV. APPEAL EXPENSES

The criteria to be considered in awarding expenses include the outcome; the complexity, novelty and significance of the issues; any position taken by a party that is frivolous, vexatious, fraudulent or manifestly unfounded; the conduct of either party in facilitating or hindering the process; and any settlement offers.³⁶

Each of the parties asks me to order an award of appeal expenses against the other. Ms. Cruz was unsuccessful in her appeal, but she raised legitimate issues about the rather complex interaction of the definitions of "insured person" in the SABS and the policy. Royal urged me to find that the matter was resolved by the appeal decision in Griffiths, but the issues in this case were somewhat different, and I am not persuaded Ms. Cruz should be deprived of her expenses on that basis. I have less sympathy for her Charter arguments, which had little merit.

On balance, I find it appropriate that Ms. Cruz pay half of Royal's appeal expenses, as agreed or assessed.

October 29, 2003

Nancy Makepeace

Director's Delegate

Date

"insured automobile", in respect of a particular motor vehicle liability policy, means any automobile covered by the policy;

Footnotes

The Statutory Accident Benefits Schedule — Accidents on or after November 1, 1996, Ontario Regulation 403/96, as amended.
The policy is the Ontario Automobile Policy - Owner's Policy (O.A.P. No. 1). This was the approved standard owner's policy between November 1, 1996 and January 1, 2001.
Arbitration decision, p. 8.
Notice of Constitutional Question was provided to the Attorney General (Ontario) and the Department of Justice (Canada), but neither wished to intervene.
In Thomson v. Minister of National Revenue, 1946 CanLII 1 (SCC), [1946] S.C.R. 209. [footnote added]
Mann v. The Manitoba Public Insurance Corporation, [1982] I.L.R. 1-1588 (Man. Q.B.). [footnote added]
Parkes v. Heiberg, [1992] O.J. No. 1921 (Gen. Div.). [footnote added]
Olson v. Ontario, [1992] O.J. No. 2447 (Ont.Gen.Div.). [footnote added]
MacPherson v. Macpherson (1977), 1976 CanLII 854 (ON CA), 13 O.R.(2d) 233 (Ont. C.A.). [footnote added]
In Thomson, note 4 above.
Arbitration decision, pp. 15-16.
Arbitration decision, p. 16.
Arbitration decision, p. 10.
Arbitration decision, p. 8.
Arbitration decision, p. 9.
Arbitration decision, pp. 6-7.
Arbitration decision, p. 16.
See, for example, Rand J.'s statement, at p. 702 in Thomson.
Arbitration decision, p. 2.
Footnote 4, above.
Quoted at p. 13 of the arbitration decision.
The Ontario Automobile Policy - Owner's Form (O.P.F.1).
Miron and Old Republic, at p. 14.
Paragraph (b) of the definition of "insured person" read: "in respect of accidents outside Ontario, a person living and ordinarily present in Ontario who is an occupant of the insured automobile. " Paragraphs (a) and (d) concerned accidents in Ontario, and paragraphs (c), (e) and (f) applied to "the named insured, his or her spouse and any dependant of either of them."
(Toronto: Butterworths Canada Limited, 1999), p. 290
Griffiths and State Farm, at p. 14. The arbitrator also adopted the applicant's understanding of s. 5107 of the New York statute as a statutory minimum.
If so, it would also have to extend coverage to a non-resident of Ontario struck by an Ontario -insured automobile outside of Ontario. [footnote in original]
At pp. 11-12.
This was the situation considered in Miron, cited above, where the arbitrator concluded that the injured person could claim under clause (g) of the policy covering the other vehicle. I agree with the analysis in that decision and have applied it here. [footnote in original]
The SABS-1996 gives this definition:
Griffiths and State Farm, p. 16.
See, for example, New Brunswick (Minister of Health and Community Services) v. G. (J.), 1999 CanLII 653 (SCC), [1999] 3 S.C.R. 46, Gosselin v. Quebec (Attorney General), 2002 SCC 84, [2002] S.C.J. No. 85, and Auton (Guardian ad litem of) v. British Columbia (Attorney General), 2002 BCCA 538, [2002] B.C.J. No. 2258 (B.C.C.A.), under appeal to the Supreme Court of Canada [2002] S.C.C.A. No. 510.
Peter Hogg, Constitutional Law of Canada (Scarborough: Carswell, 1997, looseleaf edition), pp. 52-50 and 52-61-62.
See Reference re Secession of Quebec, 1998 CanLII 793 (SCC), [1998] 2 S.C.R.217, at para. 58. [footnote added]
R. v. S. (S.), 1990 CanLII 65 (SCC), [1990] 2 S.C.R. 254, 288 per Dickson C.J. (obiter dictum). [footnote in original]
The Expense Regulation is contained in Regulation 664, R.R.O. 1990, as amended by Ontario Regulation 464/96, made under the Insurance Act.

Maria Del Rocio Cruz v. Royal & SunAlliance Insurance Company of Canada, 2003 ONFSCDRS 152

Case Summary

A. Introduction

B. The SABS-1996 – "resident of Ontario"

B. Section 57

C. The Policy – Additional Coverage

D. Charter of Rights and Freedoms

IV. APPEAL EXPENSES

Footnotes