Thomas Manzanares v. Pembridge Insurance Company (Pafco Ins. Co.), 2005 ONFSCDRS 46

Financial Services Commission of Ontario

Commission des services financiers de l’Ontario

Neutral Citation: 2005 ONFSCDRS 46

Appeal P03-00025

OFFICE OF THE DIRECTOR OF ARBITRATIONS

THOMAS MANZANARES

Appellant/Respondent

and

PEMBRIDGE INSURANCE COMPANY (PAFCO INS. CO.)

Respondent/Appellant

Before:

David R. Draper

Representatives:

Ben Fortino for Mr. Manzanares

Rinaldo DiVincenzo for Pembridge

Hearing Date:

December 2, 2004, in Hamilton, Ontario, with additional written submissions completed on February 24, 2005

APPEAL ORDER

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

1. Mr. Manzanares' appeal is allowed. The arbitration order dated May 27, 2003, is revoked and replaced by the following order:

The exclusion in s. 30(1)(b) of the SABS-1996 does not apply to Mr. Manzanares' claim for income replacement benefits.

2. Pembridge's appeal is dismissed and the arbitration order dated April 7, 2004, is confirmed.

3. Pembridge shall pay 75 per cent of Mr. Manzanares' arbitration expenses and 50 per cent of his appeal expenses.

April 11, 2005

David R. Draper Director of Arbitrations

Date

REASONS FOR DECISION

I. NATURE OF THE APPEAL

This appeal involves the exclusion provisions in the SABS-1996.¹ Mr. Manzanares appeals from the arbitration order dated May 27, 2003, dismissing his claim for income replacement benefits. He submits that the arbitrator erred in law in concluding that by violating the conditions of his G1 (novice driver) licence, he was subject to the exclusion for driving "without a valid driver's licence." Pembridge appeals from the arbitrator's second order, dated April 7, 2004, denying its claim for arbitration expenses. It claims the arbitrator made a number of errors, including applying the wrong criteria, failing to consider all of the relevant criteria, and not applying some of the criteria properly based on the facts before him.

For reasons that follow, Mr. Manzanares' appeal is allowed and Pembridge's appeal is dismissed.

II. ANALYSIS

A. Exclusion

The relevant facts are straightforward. Mr. Manzanares held a valid G1 licence. Under Ontario's graduated licencing system, he was required to have a fully licenced driver in the front passenger seat whenever he drove. At the time of the accident on December 18, 1999, he was driving without another licenced driver in the car.

The question before the arbitrator was whether Mr. Manzanares was caught by s. 30(1)(b) of the SABS-1996, which states that the insurer is not required to pay income replacement benefits "if the driver was driving the automobile without a valid driver's licence." Mr. Manzanares argued that he had a valid driver's licence — the G1. The arbitrator rejected this interpretation. While he agreed that the ordinary meaning supported Mr. Manzanares' interpretation, he concluded that interpreting the section so narrowly would undermine the legislative purpose of discouraging unsafe driving on public highways.

The appeal turns on the significance given to the specific wording used in the SABS-1996. As the arbitrator notes in his decision, the exclusion provisions in the SABS-1996 differ from earlier versions. The SABS-1990 and the SABS-1994 relieve insurers from paying certain benefits if the insured person was driving at the time of the accident and "was not authorized by law to drive the automobile."² In both schemes, the exclusion does not apply if the only reason the driver was not authorized by law to drive was a licence suspension for failure to pay a fine.³

The decisions under this wording have consistently held that a driver who is violating the conditions of his or her licence at the time of the accident is not authorized by law to drive the automobile and, therefore, is caught by the exclusion.

The leading case is Vanderwal and State Farm Mutual Automobile Insurance Co. (1994), 20 O.R. (3d) 410. Mr. Vanderwal had a beginner's motorcycle licence that prohibited him from driving on a highway with a speed limit in excess of 80 kilometres per hour. At the time of the accident, he was driving on a highway with a speed limit in excess of 80 kilometres per hour. The trial judge held that the exclusion was only meant to apply to those whose licence was suspended by operation of law. Because Mr. Vanderwal had a licence to drive the motorcycle, he concluded that the exclusion provision did not apply.

On appeal, the Divisional Court expressed sympathy for Mr. Vanderwal's plight, but concluded that the trial judge erred in his interpretation. It held that Mr. Vanderwal's lawful authority to drive was entirely dependent on the licence issued to him. At the time of the accident, having regard to the circumstances that then existed, he was not authorized to drive his motorcycle. On the contrary, he was specifically prohibited from doing so.

Although not critical to its decision, the Divisional Court made the following additional comments that have been referenced in later cases:

With respect to the learned trial judge, we think that in arriving at his ultimate interpretation of the exclusionary clause in issue, he erred in taking into account various examples designed to illustrate the harshness or perversity of the law. In this regard, we agree with the thoughts expressed by Kroft J. at p. 775 in Ferreira, supra, that these are matters for the legislature, not the court.

Vanderwal has been consistently followed in the arbitration and court decisions dealing with "not authorized to drive" exclusions. For example, in Hyrski and Zurich Insurance Company, (OIC A-007156, February 16, 1996), the arbitrator found that the exclusion applied to someone injured while driving a motorcycle who had a valid class G licence, authorizing him to drive an automobile, but not a motorcycle. Like the Divisional Court in Vanderwal, the arbitrator acknowledged the harshness of the result, but concluded she was bound to apply the legislation. I dismissed Mr. Hyrski's appeal, stating that I agreed with the arbitrator's conclusions.⁴

The exclusions in the SABS-1994 apply to somewhat different benefits, but the wording is the same as in the SABS-1990. The decisions under the SABS-1994 did nothing to shift the analysis in Vanderwal and Hyrski.⁵ The question remained whether the insured person was driving with proper authority at the time of the accident. As a result, there is little doubt that if Mr. Manzanares' entitlement were being determined under the SABS-1990 or the SABS-1994, he would be caught by the exclusion because he was "the driver of an automobile at the time of the accident" who "was not authorized by law to drive the automobile."

In April 1994, after the SABS-1994 was already in place, Ontario introduced a new graduated licencing system. Under this scheme, new drivers must gain experience by driving on a restricted basis before qualifying for a full licence. They earn full privileges in two stages (G1 and G2) and have five years to complete the program before graduating to a full licence (G).⁶ This scheme was introduced through amendments to the Highway Traffic Act and various regulations under that Act. Many of the details are found in O. Reg. 340/94 ("the Drivers'Licences regulation"), which includes the following definition in s. 1(1):

"valid driver's licence" means a driver's licence that is not expired, cancelled or under suspension.

Neither the SABS-1990 nor the SABS-1994 was amended to reflect Ontario's new graduated licencing system. However, when the SABS-1996 was introduced for accidents on or after November 1, 1996, the exclusion provision was substantially redrafted. Section 30 of the SABS-1996 differs from its predecessors in a number of respects. Most significant for this appeal, it uses the phrase "without a valid driver's licence" in place of "not authorized by law." A comparison of the most relevant provisions is set out below:

SABS-1994

SABS-1996

58. (1) The insurer is not required to pay income replacement benefits under Part II, education disability benefits under Part III, disability benefits under Part V or loss of earning capacity benefits under Part VI in respect of a person who was the driver of an automobile at the time of the accident,

(d) if the driver was not authorized by law to drive the automobile;

30. (1) The insurer is not required to pay an income replacement benefit, a non-earner benefit or a benefit under section 20, 21 or 22 in respect of a person who was the driver of an automobile at the time of the accident,

(b) if the driver was driving the automobile without a valid driver’s licence;

(2) Clause (1) (d) does not apply to a driver who is not authorized by law to drive an automobile only by reason of a suspension of a licence for failure to pay a fine.

The first arbitration decision to consider the new wording dealt with a licence suspension. In Troncoso and Co-operators General Insurance Company, (FSCO A00-000167, September 25, 2000), the insured person's licence was suspended at the time of the accident for non-payment of a fine. The issue was whether s. 30(1)(b) applied. The arbitrator held that the removal of the saving provisions in earlier versions of the SABS for suspensions based only on the non-payment of a fine signaled a clear intention to make the exclusion applicable to all licence suspensions. Although he left open the possibility that the exclusion might not apply to someone who was unaware of the suspension or whose suspension was invalid, there was no evidence that Mr. Troncoso was in that position.

On appeal, I upheld the arbitrator's order, stating as follows:

The SABS-1996 is different. The exclusion applies to anyone who "is driving the automobile without a valid driver's licence." There is no longer an exception for those suspended for non-payment of a fine. This led the arbitrator to conclude, correctly in my view, that the legislation reflects a clear intention to broaden the exclusion.⁷

The arbitrator in Manzanares, without explanation, characterized the wording of the exclusion provisions in the earlier versions of the SABS as "narrower." While the SABS-1996 broadened the exclusion for suspensions, it does not necessarily follow that it broadened the exclusion in all respects. Troncoso dealt with a licence suspension, not the consequences of driving beyond the scope of a valid driver's licence. The question is whether the new wording in the SABS-1996 changes the approach taken in decisions like Vanderwal and Hyrski. Does it mean, as Mr. Manzanares contends, that the exclusion provision links with the new definition of "valid driver's licence" in O. Reg. 340/94 and, therefore, does not apply if the insured person has a driver's licence that is not expired, cancelled or under suspension? Or, was the arbitrator correct in concluding that the exclusion still applies if the insured person is driving beyond the scope of his or her licence?

The arbitrator's decision is consistent with two other arbitration decisions: Sesay and Certas Direct Insurance Company, (FSCO A02-001141, February 12, 2003) and King and Dominion of Canada General Insurance Company, (FSCO A02-001163, August 27, 2003). More recently, Belch J. reached a different conclusion in Gipson v. Pilot Insurance Company, 2005 CanLII 1495 (ON SC), [2005] O.J. No. 239.⁸

Each of these cases, Sesay, King, Manzanares and Gipson, involved someone driving beyond the scope of their licence. In Sesay, the insured person held a valid G1 licence which, among other conditions, prohibited him from driving on certain designated highways. At the time of his accident, Mr. Sesay was driving on the 401, a designated highway. He argued that although he was driving beyond the scope of his licence, he had a valid driver's licence as defined in the Drivers' Licences regulation. The arbitrator rejected this argument. The core of his reasons follows:

In my mind, the phrase "not authorized to drive" is equivalent to "driving an automobile without a valid licence."

A licence is the normal means by which legal permission to drive on public highways is granted. A person driving without a valid licence is prima facie not authorized to drive on a public road. Vanderwal makes it clear that driving beyond the scope of one's licence also constitutes driving without a valid licence.

. . . The clear object of the statutory restrictions on novice drivers was to narrow the scope of their privilege to drive until such time as they demonstrate, through testing and experience, an ability to drive anywhere at any time. (See section 39, of the Highway Traffic Act) Put differently, the novice driver is granted a driver's licence that is valid only under certain specified conditions. In other conditions it is invalid.

The facts in King were somewhat different. Mr. King had a G2 licence that only allowed him to drive vehicles weighing less than 11,000 kilograms. This weight restriction is a limitation on all G licences, not just novice licences. At the time of the accident, Mr. King was driving a truck weighing more than 11,000 kilograms. After considering the relevant decisions and legislation, the arbitrator concluded that the exclusion applied. His reasons are set out below (footnote eliminated):

. . . Although it is permissible to look to other statutes for clues to the meaning of vague and ambiguous legislative language, particularly when the term is not defined in the specific regulation of statute under consideration, context is always paramount. I agree with Arbitrator Sampliner that the regulatory purposes of the SABs and the Highway Traffic Act regulations are not so similar as to form a legislative code that would generally require that phrases mean the same thing in both statutory schemes.

The general tenor of the exclusion clause cases has been to encourage drivers to act in accordance with the driving privileges that have been granted to them under the specific terms of their licences. I agree with the consistent approach that the case law has traced so far. Clearly, licences are granted for specific purposes. In Ontario, there is no general licence that grants a driver the authority to drive any vehicle in any manner at any time under any conditions. In fact, the various classes, levels, endorsements and conditions driver licences are now subject to is tortuously complex. To interpret driving without a "valid driver's licence" in the abstract way that Mr. King's counsel suggests seriously discounts the social value of the policy encouraging people to comply with the terms, conditions and limitations of their drivers' licences. I am not prepared to find that the legislator intended such a result.

Therefore, even if I were to accept the argument made on behalf of Mr. King, i.e., that the definition of "valid driver's licence" is the same in the Schedule as it is in regulations made under the Highway Traffic Act, it still is the case, in my view, that the licence that is not "expired, cancelled or suspended" must be one that would authorize the actions the driver was engaged in at the time of the accident. After all, the text of the exclusion provision does reference "the vehicle" and not generic driving activity. To interpret the phrase "driving the automobile without a valid driver's licence" to mean that being in possession of "any" sort of valid licence suffices would lead to a carnival of absurdities that would be inconsistent with general role of exclusion clauses, i.e. to deny certain benefits to drivers who engage in specified unauthorized and often dangerous actions. There is no interpretive ambiguity here open to be resolved in Mr. King's favour.

Finally, Gipson, like Sesay, involved a violation of novice conditions. Mr. Gipson had a G2 licence that was not expired, cancelled or under suspension. As a condition of that licence, he could not drive with a blood alcohol level above zero. At the time of the accident, Mr. Gipson was driving with a blood alcohol level above zero when he swerved to avoid hitting a deer and lost control of his vehicle. He was seriously injured in the accident and applied for weekly benefits under the SABS-1996. As in the other cases, the issue was whether the exclusion in s. 30(1)(b) applied.

Belch J. reached a different conclusion. While he acknowledged that a change in legislation cannot be presumed to reflect a substantial alteration in the law, he found that the change from "not authorized by law to drive the automobile" to "driving the automobile without a valid driver's licence" was intended as more than "language polishing." In part, this conclusion was based on the comments of the Divisional Court in Vanderwal about the harshness of the old wording.

Belch J. was also influenced by the connection between the words used in s. 30(1)(b) of the SABS-1996 and the definition section in the Drivers'Licences regulation. Unlike the arbitrators, he found that the definition of "valid driver's licence" in the Drivers'Licences regulation applies to the exclusion. In his view, the Insurance Act, the SABS, the Highway Traffic Act and its regulations all deal with similar subject matters. They "regulate highways, persons who drive upon them, and provide no fault benefits for those using the highways who have the misfortune to be injured." Following the Supreme Court decision in Canada (Attorney General) v. Public Service Alliance of Canada (1991), 1991 CanLII 88 (SCC), 80 D.L.R. (4th) 520, he adopted the approach of "grafting" the definition of a valid driver's licence onto the exclusion provision in the SABS-1996.

Belch J. also held that because the definition of "valid driver's licence" uses the verb "means," it is restrictive and cannot be given an enhanced meaning. In his view, the question is whether, at the time of the accident, the driver had a licence that was not expired, cancelled or under suspension. It is not, as the arbitrators held, whether the person was driving in a manner not authorized by his or her licence. On the facts before him, Belch J. held that the exclusion did not apply to Mr. Gipson because he had a valid driver's licence.

The balance of Justice Belch's reasons in Gipson follow:

There is reference in argument here and in the arbitrations to the absurdity that results where a person breaches a condition of his or her licence at the time of the accident, yet may still have a valid licence entitling that driver to non-earner and other no-fault benefits. As least two of the arbitral decisions suggest a finding of driving without a licence should be equated to a finding of not being authorized to drive, because it somehow serves to recognize and protect Ontario's system of graduated licences, a system which employs conditions. I reject that view.

Section 9.1 of Ontario's Drivers Licence Regulations provides the Registrar with the power to suspend the licence of a person who is convicted of violating any of the conditions specified, thereby obviating the need to withhold no-fault benefits to encourage safe driving through programs such as graduated licencing. Also, it is just as absurd to be denied no fault benefits for failing to sign your driver's licence in ink, or receiving benefits as a result of successfully avoiding criminal conviction because of a technicality.

Finally, in reaching my opinion, I am influenced by the following:

1. Exclusionary clauses are to be interpreted narrowly and in favour of an insured.

2. The decision of Cameron J. in Youdan v. Economical Insurance Co., 1996 CanLII 8010 (ON CTGD), [1996] O.J. No. 2044 at page 4 when he writes:

This is remedial legislation . . . In this context the legislation should be interpreted broadly and liberally.⁹

I find the analysis in Gipson more persuasive. Justice Belch's last two points are not controversial and form the backdrop to my analysis. Clause 30(1)(b) is an exclusion provision and, therefore, must be strictly construed. This is particularly true given its potentially serious consequences - someone injured in an accident who is otherwise entitled to weekly benefits because they are unable to work or carry on their daily activities will not receive them. As well, the SABS-1996 is remedial, consumer protection legislation that is to be interpreted broadly and liberally.¹⁰

The crux of the appeal is whether the change in wording reflects a change in the substance of the exclusion. I accept that, as a starting point, it cannot be assumed that an amendment to legislation means a change in the law.¹¹ But neither can the opposite be assumed. The task is to apply general principles of interpretation, including legislative history, to determine the meaning of the new provision.¹²

The proper approach to interpreting accident benefits legislation was considered by the Court of Appeal in Bapoo v. Co-operators General Insurance Company, (1997), 1997 CanLII 6320 (ON CA), 36 O.R. (3d) 616, an approach that has been followed in many subsequent arbitration and appeal decisions:

The modern approach to statutory interpretation calls on courts to interpret a legislative provision in its total context. The court's interpretation should comply with the legislative text, promote the legislative purpose and produce a reasonable and just meaning. Professor Sullivan described the modern approach in the following passage in Driedger on the Construction of Statutes, 3rd.ed. (Toronto: Butterworths, 1994) at p. 131...:

There is only one rule in modern interpretation, namely, courts are obliged to determine the meaning of legislation in its total context, having regard to the purpose of the legislation, the consequences of the proposed interpretations, the presumptions and special rules of interpretation, as well as admissible external aids. In other words, the courts must consider and take into account all relevant and admissible indicators of legislative meaning. After taking these into account, the court must then adopt an interpretation that is appropriate. An appropriate interpretation is one that can be justified in terms of (a) its plausibility, that is, its compliance with legislative text; (b) its efficacy, that is, its promotion of the legislative purpose; and (c) its acceptability, that is, the outcome is reasonable and just.

In my view, context is critical. Most of the exclusions in the SABS-1996, including s. 30(1)(b), depend on some other legal requirement or process. It would be difficult to determine whether someone was "driving the automobile without a valid driver's licence" without referring to the relevant licencing requirements. As the arbitrator in Hyrski observed about the previous wording, judges and arbitrators have "equated the term 'authorised by law to drive' under the Insurance Act regulations with driver licencing requirements," and that "a relationship between the two statutory schemes is suggested by the use of parallel language, with both referring to the authority to drive a motor vehicle/automobile."¹³

The specific words used in the SABS are crucial, especially where they link with wording used in the related legislation. In this case, the link is particularly strong. The SABS uses the phrase, "valid driver's licence," which is a defined term in the legislation that establishes the licencing requirements. I agree with Belch J. that this definition must be used in interpreting the exclusion in s. 30(1)(b).

This does not end the matter. As the arbitrator in King fairly points out, the issue is not simply whether the insured person had a valid driver's licence. The exclusion applies if he or she "was driving the automobile without a valid driver's licence." In other words, there must be some relationship between the licence and the driving being done at the time of the accident. While this could present problems for someone driving a vehicle that he or she was not authorized to drive, I am not convinced it applies here. On a plain reading, Mr. Manzanares had a driver's licence that was not expired, cancelled or under suspension that authorized him to drive the vehicle he was driving at the time of the accident.

The arbitration decisions focus on the exclusion's role in promoting safe driving. I agree with Belch J., however, that as important as road safety is, not all licencing rules must be enforced through the SABS. Even the worst driving offences only prevent the offender from receiving certain benefits; they are not disqualified from receiving the other benefits provided by the SABS-1996, including caregiver benefits, and medical, rehabilitation and attendant care benefits. Therefore, the exclusion serves as a limited penalty, balancing the policy goal of discouraging unlawful driving with the harshness of denying accident benefits to someone who is otherwise entitled to receive them.

In my opinion, there is nothing particularly surprising from a policy perspective about distinguishing between someone who is driving without a licence, or with a licence that is expired, cancelled or suspended, and someone driving contrary to a licence condition. It is not difficult to imagine situations where it would seem harsh to deny important accident benefits to someone who has a driver's licence that authorizes him or her to drive the vehicle, but is driving contrary to a condition of that licence. For example, consider the G1 driver who is driving shortly after midnight, or has a fully licenced driver in the car, but not in the front seat.

As Belch J. discusses, his interpretation does not mean that novice drivers can ignore their licence conditions with impunity. It is an offence under the Highway Traffic Act for a novice driver to drive in contravention of a licence condition [s. 57.2(1)], and the Drivers' Licences regulation includes specific rules for suspending the licence of a novice driver who violates a licence condition [s. 9(1)]. This is a serious consequence for someone attempting to obtain full driving privileges and, like Belch J., I am not persuaded that a "carnival of absurdities" will result from interpreting the exclusion in s. 30(1)(b) of the SABS-1996 narrowly.

For these reasons, Mr. Manzanares' appeal is allowed.

B. Waiver

Mr. Manzanares also submits that the arbitrator erred in rejecting his argument that Pembridge waived its right to rely on the exclusion provision. Given my conclusion above, it is not strictly necessary to deal with this issue. However, for the sake of completeness, I will address it.

In my opinion, this part of Mr. Manzanares' appeal has little merit. Nor was his position helped by the lack of clarity about whether he was arguing waiver or estoppel. With respect to waiver, the arbitrator found no evidence that Pembridge had demonstrated an unequivocal intention to relinquish its right to rely on the exclusion provision. There was evidence to support this conclusion and, therefore, no basis for interfering on appeal.

During his oral appeal submissions, Mr. Fortino focused more on estoppel than waiver. I have real doubts about whether he should be allowed to shift his argument in this manner, especially given his apparent concession during the arbitration that he was relying on waiver, not estoppel.¹⁴

In any event, estoppel requires detrimental reliance by Mr. Manzanares, which was not proven.

Consequently, the arbitrator's decision on waiver stands.

C. Arbitration and Appeal Expenses

In his Notice of Appeal, Mr. Manzanares asks that the arbitrator's order be rescinded, that his claim for income replacement benefits be allowed to proceed and that he be awarded his expenses of both the arbitration and the appeal. Pembridge also appeals the arbitrator's expenses order. It claims the arbitrator erred in:

1. Applying the pre-October 2003 expenses criteria in s. 12(2) of Ontario Regulation 664.

2. Relying on the fact that the exclusion issue was raised late, a consideration that is beyond the scope of the restricted list of relevant criteria under the post-October 2003 legislation.

3. Failing to consider all of the relevant criteria, particularly the fact that it was completely successful and would have been completely successful whenever the exclusion issue was raised.

4. Considering Mr. Manzanares' conduct in shortening or streamlining the hearing, which is no longer a factor in the post-October 2003 list of criteria.

5. Failing to consider the many examples of Mr. Manzanares' conduct that prolonged, obstructed or hindered the proceedings, including:

(a) production delays;

(b) failing to withdraw the special award claim;

(c) failing to comply with the rules for experts;

(d) failing to identify witnesses; and

(e) failing to respond to request to approve agreed statement of facts.

6. Failing to consider Mr. Manzanares' claim for a special award to be improper, vexatious or unnecessary.

After the arbitrator released his expense decision, I issued Howden and Pembridge Insurance Company (Pafco Ins. Co.), (FSCO P02-00031, May 17, 2004). In that decision, I held that, with limited exceptions, the new expense criteria apply where expenses are being determined on or after October 1, 2003, even if the expenses were incurred earlier. I conclude, therefore, that the arbitrator applied the wrong criteria. However, his analysis is put even further in doubt by the outcome of the appeals. The success criterion now favours Mr. Manzanares.

In my view, the most just, quickest and least expensive approach is for me to determine the expenses of the proceedings to this point. I do so applying the post-October 2003 criteria. Mr. Manzanares has been successful resisting Pembridge's exclusion argument, which can be viewed as involving a novel issue. Despite his success, he bears responsibility for delaying the process. This is particularly true for the appeal, where the delays were so serious that Pembridge brought a credible application that the appeal be dismissed. On August 26, 2003, I denied Pembridge's motion, stating that "Mr. Manzanares will bear Pembridge's appeal expenses attributable to the delay."

It appears there were similar problems leading up to the preliminary hearing in arbitration. However, given the arbitrator's assessment of the parties' conduct in his expense decision - an assessment that I find was within his discretion - I am not prepared to penalize Mr. Manzanares too severely.

I conclude that Pembridge should be required to pay 75 per cent of Mr. Manzanares' reasonable expenses of the arbitration to this point and 50 per cent of his reasonable appeal expenses. If the parties are unable to agree on the amounts payable, they should follow the procedures in Rule 79 of the Dispute Resolution Practice Code.

April 11, 2005

David R. Draper Director of Arbitrations

Date

Footnotes

1. 1The Statutory Accident Benefits Schedule —Accidents on or after November 1, 1996, Ontario Regulation 403/96, as amended.
2. 2O. Reg. 672 of R.R.O. 1990, as amended, the Statutory Accident Benefits Schedule—Accidents Before January 1, 1994, s. 17(1)(d). O. Reg. 776/93, as amended, the Statutory Accident Benefits Schedule—Accidents after December 31, 1993 and before November 1, 1996, s. 58(1)(d).
3. 3SABS-1990, s. 17(2); SABS-1994, s. 58(2).
4. 4Hyrski and Zurich Insurance Company, (FSCO P96-000035, October 2, 1996).
5. 5See, Caldarola and Royal Insurance Company of Canada, (OIC A96-000274, September 30, 1996); Unelli and Guarantee Company of North America, (FSCO A96-002063, September 8, 1998).
6. 6There is a similar system for new motorcycle drivers involving M1, M2 and M licences.
7. 7Troncoso and Co-operators General Insurance Company, (FSCO P00-00056, March 13, 2001)
8. 8Gipson was released after the oral submissions in this appeal were completed, while my decision was pending. When the decision was brought to my attention, I concluded that it was sufficiently relevant that it should be considered despite Pembridge's objections. The parties were given an opportunity to file further written submissions, which they both did.
9. 9In the omitted paragraph, Belch J. rejected the insured person's argument that the insurer could rely on the revised criminal conviction exclusions because those provisions do not include breaches of provincial legislation. This argument was not made here and, in any event, I agree with Justice Belch's analysis.
10. 10A recent example of the application of these principles is found in Lupsor v. Unum Life Insurance Company of America, [2005] O.J. No. 495 (C.A.).
11. 11Interpretation Act, R.S.O. 1990, c.I.11, s. 18.
12. 12Shearstone and York Fire & Casualty Insurance Company, (FSCO P01-00013, January 8, 2002).
13. 13Hyrski, cited above, at p. 3.
14. 14Arbitration transcript, p. 136..