R.P. v. Intact Insurance Company, 2012 ONFSCDRS 57

Financial Services Commission des Commission services financiers of Ontario de l’Ontario

Neutral Citation: 2012 ONFSCDRS 57

FSCO A10-003275

BETWEEN:

R.P. (By his litigation guardian, T.P.) Applicant

and

INTACT INSURANCE COMPANY Insurer

REASONS FOR DECISION

Before: John Wilson

Heard: February 6, 7 and 8, 2012, in Kitchener, Ontario.

Appearances: Douglas O'Toole for Mr. P. Doug Wallace for Intact Insurance Company

Issues:

The Applicant, R.P., was injured in a motor vehicle accident on April 11, 2009. He applied for and was denied certain statutory accident benefits from Intact Insurance Company (“Intact”), payable under the Schedule.¹ The parties were unable to resolve their disputes through mediation, and Mr. P. applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

Because Mr. P. was not an adult at the time of the events outlined in this decision, an order has been made pursuant to section 9 of the Statutory Powers Procedure Act, that the name and the identity of the Applicant not be revealed in any public version of this decision.

The issues in this hearing are:

Is Mr. P. barred from receiving a non-earner benefit by reason of the fact that he knew or should reasonably have known that at the time of the accident he was driving a vehicle without the owner’s consent, as set out in section 30(1)(d) of the Schedule.

Result:

Intact has not met its burden of proving that, at the time of the accident, Mr. P. knew or should reasonably have known he was driving the 1998 Lincoln Mark VIII without the owner’s consent, as set out in section 30(1)(d) of the Schedule.

EVIDENCE AND ANALYSIS:

This hearing arises from a tragic series of events, involving young people, the use of alcohol and the use of a motor vehicle belonging to a family with whom the Applicant was living.

Both parties jointly filed an Agreed Statement of Facts in this matter. The statement sets out eight material facts which are not disputed, and form the background of this dispute.

There is no dispute that R.P. was the sole driver and occupant of the 1998 Lincoln Mark VIII which was involved in the April 11, 200