Financial Services Commission of Ontario

Commission des services financiers de l’Ontario

Neutral Citation: 2007 ONFSCDRS 141

FSCO A06–001040

BETWEEN:

FRANK MAPLETOFT

Applicant

and

AVIVA CANADA INC.

Insurer

Before: Anne Sone

Heard: By telephone conference call on April 13, 2007. Written submissions were received on April 13, 2007.

Appearances: Leslie R. Duncan, Q.C. for Mr. Mapletoft Roelf Swart for Aviva Canada Inc.

Issues:

The Applicant, Frank Mapletoft, was injured in a motor vehicle accident on October 1, 1999. He applied for and received statutory accident benefits from Aviva Canada Inc. (“Aviva”), payable under the Schedule.¹ The parties were unable to resolve their disputes through mediation, and Mr. Mapletoft applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

The preliminary issues are:

Does the Financial Services Commission of Ontario have jurisdiction to hear the arbitration proceeding of Frank Mapletoft and Aviva Canada Inc.?
Should the Ontario arbitration proceeding of Frank Mapletoft and Aviva Canada Inc. relating to the motor vehicle accident of October 19, 1999 be dismissed?
Is either Frank Mapletoft or Aviva entitled to their expenses of this hearing?

Result:

The Financial Services Commission of Ontario does not have jurisdiction to hear the arbitration proceeding of Frank Mapletoft and Aviva Canada Inc.
The Ontario arbitration proceeding of Frank Mapletoft and Aviva Canada Inc. relating to the motor vehicle accident of October 19, 1999 is dismissed.
Each party will bear its own expenses of this hearing.

EVIDENCE AND ANALYSIS:

Background:

Mr. Mapletoft was a passenger in a friend’s vehicle when it was involved in an accident in Ontario on October 1, 1999. At that time and subsequently, Mr. Mapletoft lived in Alberta. Aviva insured Mr. Mapletoft under a policy that was issued in Alberta.

Mr. Mapletoft submitted a claim for accident benefits to the Aviva office in Calgary, Alberta. Aviva and Mr. Mapletoft’s previous counsel then transferred the handling and adjusting of his accident benefits’ claim to Ontario. Both of them believed that Mr. Mapletoft was entitled to accident benefits pursuant to Ontario’s Statutory Accident Benefit Schedule.

Mr. Mapletoft’s previous counsel submitted an Application for Mediation and an Application for Arbitration to the Commission. Aviva responded to these Applications in Ontario; however, Aviva recently took the position that Ontario is not the appropriate forum to determine Mr. Mapletoft’s claim for accident benefits.

At a pre-hearing on January 26, 2007, Mr. Mapletoft, through his current counsel, indicated that he would commence an action in Alberta for accident benefits claimed in connection with the October 1, 1999 motor vehicle accident. I have received a copy of Mr. Mapletoft’s Statement of Claim against Aviva issued in this matter in Calgary, Alberta on February 22, 2007. It sets out claims for medical expenses, income maintenance, punitive or exemplary damages, interest, costs and disbursements. These claims overlap with the amounts claimed in the arbitration proceeding. The statement of claim also addresses any limitation period issues he may face.

Aviva’s Submissions:

Aviva states that as the claimant has an Alberta policy, is an Alberta resident and is insured by an Alberta insurer, the Financial Services Commission of Ontario has no jurisdiction to hear this matter. In Aviva’s view, the Commission does not have the ability to grant itself jurisdiction. Alternatively, Aviva does not consent to the matter being heard before the Commission. As a result, according to Aviva, this matter is more appropriately heard in an Alberta court.

Aviva bases its opinion on the following statutory interpretation:

The (Ontario) Insurance Act, R.S.O. 1990, c. I.8, as amended, confers power on the Commission though the following provisions:

In this Act, except where inconsistent with the definition sections of any Part, “Commission” means the Financial Services Commission of Ontario established under the Financial Services Commission of Ontario Act, 1997 (“Commission”).

Section 279(1) of the Insurance Act governs disputes regarding any insured person’s entitlement to statutory accident benefits or the amount of the entitlement. It states that disputes shall be resolved in accordance with sections 280 to 283 and the Schedule.

Section 282(1) further states an insured person seeking arbitration under this section shall file an application for the appointment of an arbitrator with the Commission.

Section 224(1) defines the applicability of the automobile insurance provisions of the Insurance Act and sets out that in this Part, “automobile” includes, (a) a motor vehicle required under any Act to be insured under a motor vehicle liability policy, and (b) a vehicle prescribed by regulation to be an automobile; (“automobile”). “Contract” means a contract of automobile insurance that, (a) is undertaken by an insurer that is licensed to undertake automobile insurance in Ontario, or (b) is evidenced by a policy issued in another province or territory of Canada, the United States of America or a jurisdiction designated in the Schedule by an insurer that has filed an undertaking under section 226.1 (“contract”).

Section 226.1 provides that an insurer that issues motor vehicle liability policies in another province or territory of Canada, the United States of America or a jurisdiction designated in the Schedule may file an undertaking with the Superintendent, in the form provided by the Superintendent, providing that the insurer’s motor vehicle liability policies will provide at least the coverage described in sections 251, 265 and 268 when the insured automobiles are operated in Ontario.

Section 268(1) reads that every contract evidenced by a motor vehicle liability policy, including every such contract in force when the Schedule is made or amended, shall be deemed to provide for the statutory accident benefits set out in the Schedule, subject to the terms, conditions, provisions, exclusions and limits set out in that Schedule.

Aviva submits that through the above provisions, the Insurance Act only confers jurisdiction onto the Commission in only two instances:

For automobile contracts formed in Ontario; or alternatively,
For out-of-province insurance contracts provided the out-of-province insured was involved in a motor vehicle accident when the insured automobile was operated in Ontario.

Since neither of these scenarios is applicable, Aviva states that the Commission does not have jurisdiction to determine Mr. Mapletoft’s entitlement to accident benefits.

Mr. Mapletoft’s Submissions:

Mr. Mapletoft did not consent to the dismissal of his arbitration in Ontario. On the other hand he declined to make submissions.

CONCLUSION:

I concur with Aviva’s analysis that the Commission does not have jurisdiction over Mr. Mapletoft’s insurance policy to determine the entitlement and amount of Mr. Mapletoft’s statutory accident benefits. The Insurance Act states that in a policy issued outside of Ontario, the coverage applies when the insured automobile is operated in Ontario. This did not occur here. Mr. Mapletoft was insured through an Alberta policy and was a passenger in a friend’s car when the accident occurred in Ontario. I also note that by issuing a Statement of Claim in Alberta, Mr. Mapletoft is clearly indicating that he wishes to pursue his remedies in Alberta. Indeed, it is to his advantage to have his matter determined by a court or tribunal that has jurisdiction to hear it. Otherwise, any order he may obtain may not be enforceable.

As a result of my finding that the Commission does not have jurisdiction to determine Mr. Mapletoft’s issues regarding statutory accident benefits arising out of the October 1, 1999 accident, I dismiss the arbitration.

EXPENSES:

Neither party sought expenses from this preliminary issue hearing. I exercise my discretion to order each party to bear their own expenses of this hearing.

July 30, 2007

Anne Sone Arbitrator

Date