Financial Services Commission of Ontario

Neutral Citation: 2016 ONFSCDRS 158

FSCO A13-013090

BETWEEN:

MICHAEL DORAN

Applicant

and

RBC GENERAL INSURANCE COMPANY

Insurer

DECISION ON A PRELIMINARY ISSUE

Before: Arbitrator Charles Matheson

Heard: In person at Kitchener, Ontario on March 14 and 15, 2016 and by written submissions due March 31, 2016

Appearances: Mr. Robert Deutschmann, lawyer, participated for Mr. Michael Doran Ms. Anju Sharma, lawyer, participated for RBC General Insurance Company

Issues:

The Applicant, Mr. Michael Doran, was injured in a motor vehicle accident on April 12, 2011. He applied for and received statutory accident benefits from RBC General Insurance Company (“RBC”), payable under the Schedule.¹ The parties were unable to resolve their disputes through mediation, and Mr. Doran applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c. I.8, as amended.

The issue in this Preliminary Issue Hearing is:

1. Is Mr. Doran excluded from receiving non-earner benefits, housekeeping and home maintenance benefits and visitor expenses by virtue of section 31(1)(a) of the Schedule?

Result:

1. Mr. Doran is not excluded from receiving non-earner benefits, housekeeping and home maintenance benefits and visitor expenses by virtue of section 31(1)(a) of the Schedule.

EVIDENCE AND ANALYSIS:

Legislation and Case Law considered

Smith v. Co-operators General Insurance Company, [2002] 2 S.C.R. 129, 2002 SCC 30

Walker and Aviva Canada Inc. (FSCO A09-001079, February 28, 2011)

Statutory Accident Benefits Schedule - Effective September 1, 2010, Ontario Regulation 34/10, section 31;

Statutory Conditions-Automobile Insurance, O. Reg. 777/93, sections 3 and 11.

Background

As a result of the April 12, 2011 accident, Mr. Doran suffered extensive injuries including a catastrophic brain injury. This injury has affected his long term and short term memory, among other things.

Mr. Doran had his first car insurance policy under his mother’s policy which was effective October 29, 2009 (“First Policy”). RBC cancelled the first policy effective November 4, 2010. During this time frame, Mr. Doran was a student at Wilfrid Laurier University.

On January 17, 2011, Mr. Doran’s mother contacted RBC to arrange for another car insurance policy for Mr. Doran that was not attached to her own insurance policy, this policy (“Second Policy”) took effect January 18, 2011.

Decision

The parties agree that the onus of proof of this preliminary issue rests with the Insurer.

There was disputed and undisputed evidence presented during this Preliminary Issue Hearing. The undisputed evidence shows the following:

• There was a long series of single missed payments for this First Policy;
• The first of two missed payments of the First Policy was due to insufficient funds;
• The final and second missed payment of the First Policy was due to a stop payment;
• The Insurer cancelled the First Policy because the Applicant had missed two consecutive monthly payments, as per RBC’s policies;
• Upon initializing the Second Policy, the Insurer showed no evidence that they corrected the contact information for the Applicant;
• The Applicant requested a new withdrawal date for the Second Policy, from the 3rd of each month, as with the First Policy, to the 22nd of each month for the Second Policy;
• The only evidence presented by the parties on this event was the log notes of RBC, which captured the date change only;
• The Insurer presented evidence that RBC has an internal policy that it takes 90 days to switch a withdrawal date on an active policy;
• The Insurer did not present evidence that this internal policy was communicated to the Applicant;
• The Insurer presented evidence that RBC under another internal policy deducts the first monthly payment 4 business days after initiating a new policy, in this case the Second Policy;
• The Insurer attempted to withdraw the first payment of the Second Policy on January 22, 2011;
• The first withdrawal attempt was returned to RBC due to insufficient funds and a further $42.50