A.S. v. Intact Insurance Company, 2020 CanLII 57401

A.S. vs. Intact Insurance Company, 2020 ONLAT 19-000979/AABS

Citation: A.S. vs. Intact Insurance Company, 2020 ONLAT 19-000979/AABS Released: July 27, 2020 Tribunal File Number: 19-000979/AABS

In the matter of an Application pursuant to subsection 280(2) of the Insurance Act, RSO 1990, c I.8., in relation to statutory accident benefits

Between:

A. S. Applicant

and

Intact Insurance Company Respondent

DECISION

ADJUDICATOR: Brian Norris

APPEARANCES:

For the Applicant: Sarah Marshall For the Respondent: Saro Setrakian

Heard by way of written submissions

OVERVIEW

1The applicant was injured in an automobile accident on April 12, 2016 in Alberta and sought and received benefits from the respondent.

2About two years later, and in addition to the benefits already received pursuant to the Alberta Automobile Accident Insurance Benefits (“AAIB”), the applicant claimed accident benefits from the respondent pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010, O. Reg. 34/10 (the “Schedule”). The respondent refused to pay the benefits claimed and, as a result, the applicant applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

3In response, the respondent claimed the Tribunal lacked the jurisdiction to hear the dispute. A case conference occurred and with the consent of the parties, a hearing in writing was Ordered to determine this jurisdictional issue.

ISSUES

4The issue in dispute for this hearing is:

1. Does the Licence Appeal Tribunal have the jurisdiction to hear the matter under 19-000979/AABS (A.S. v. Intact Insurance Company)?

RESULT

5The Tribunal lacks the jurisdiction to hear the matter under 19-000979/AABS.

BACKGROUND

6The applicant was the driver of a vehicle registered in Alberta and insured under an auto insurance policy sold in Alberta, which was involved in an accident in Alberta. He claimed and received benefits under the AAIB from the respondent. About two years following the accident, the applicant also claimed accident benefits under the Schedule from the respondent for the same accident. The respondent refused the application because the applicant was insured under an Alberta policy and had an Alberta address and Driver’s licence.

JURISDICTION

7The respondent submits the Tribunal lacks the authority to determine disputes in respect of insurance policies in other provinces, except in respect to accidents taking place in Ontario. It further submits the Tribunal can only address accidents which occur in Ontario or are involved in policies sold in Ontario.

8The applicant, in response, submits this is not a jurisdictional issue but, rather, one involving the applicant’s entitlement to benefits under the Schedule. As a result, he submits that he is entitled to apply to the Tribunal to resolve the dispute and the Tribunal may determine whether he meets the definition of an insured person pursuant to section 3 of the Schedule.

THE LAW

9The Tribunal is constituted under the Licence Appeal Tribunal Act, 1999 (“the LAT Act”). Section 3 of the LAT Act provides the Tribunal with the power to hold hearings and other duties assigned to it by or under any act or regulation.

10Section 280(1) of the Insurance Act¹ assigns the Tribunal the duty to resolve disputes in respect of an insured person’s entitlement to benefits pursuant to the Schedule or in respect of the amount of benefits to which an insured person is entitled.

11Section 280 of the Insurance Act is contained in Part XI of the Insurance Act. The scope of Part XI is outlined in section 226 of the Insurance Act. Relevant to this dispute, section 226(2) limits the application of Part XI to exclude contracts providing insurance in respect of an automobile not required to be registered under the Highway Traffic Act² (“the HTA”) unless it is insured under a contract evidenced by a form of policy approved under Part XI.

12The HTA does not require vehicles that are not operated in Ontario to be registered under it³.

DISCUSSION

13The respondent submits that section 280 of the Insurance Act cannot apply to the applicant’s policy because of the scope of section 226(2). It submits that the applicant’s vehicle was registered and operated in Alberta and, thus, was not required to be registered under the HTA. It further submits the applicant’s insurance policy was not in the Ontario form approved under the Insurance Act because it was a standard Alberta S.P.F. no. 1 policy - rather than an Ontario O.A.P. 1 policy.

14The applicant submits that section 280 of the Insurance Act applies because it provides the scope to address the resolution of disputes in respect of an insured person’s entitlement. He submits his application to the Tribunal is with respect to his entitlement to benefits pursuant to the Schedule. He submits the Tribunal must determine whether the Insurance Act applies and, if so, whether the applicant is an “insured person” under section 3.1 of the Schedule and a resident of Ontario as other Tribunal decisions have examined⁴. He further submits that the respondent is licenced to undertake automobile insurance in Ontario and signed a Power of Attorney and Undertaking (“PAU”) to be considered an “Ontario insurer”, which binds the respondent to the laws in the Insurance Act.

15The applicant submits that the Tribunal has previously dealt with a claim like his in two matters, 16-001904 v Security National Insurance Company (“16-1904”) and IMN v Intact (“IMN”), and both those matters began with an analysis of whether the applicant was an insured person under section 3.1 of the Schedule.

16In reply, the respondent submits that the PAU does not grant the Tribunal either the statutory or territorial jurisdiction to determine this dispute. Its position is that the PAU is to harmonize an out of province policy with the laws of the jurisdiction where the accident took place⁵. The respondent also submits that the PAU does not preclude an insurer from contesting the application of the Ontario Insurance Act to impose a civil obligation on an out-of-province insurer in respect to an out-of-province accident⁶. It further submits that 16-1904 is distinguishable from this matter in that the insured in that case was in an accident involving a vehicle registered and insured in Ontario. It also submits that a jurisdictional issue could have been raised in IMN but never was and, ultimately, the reasoning in IMN mirrors its submissions.

17For the following reasons, I find the Tribunal lacks the jurisdiction to hear the applicant’s appeal.

18As noted previously, section 3 of the LAT Act provides the Tribunal with all the powers that are necessary or expedient for carrying out its duties. Section 280 of the Insurance Act provides the Tribunal with the duty to resolve disputes in respect of an insured person’s entitlement to benefits pursuant to the Schedule or in respect of the amount of benefits to which an insured person is entitled.

19I find that section 226(2) of the Insurance Act excludes the applicant’s insurance contract from the legislation’s scope and, thus, the Tribunal’s jurisdiction. Section 226(2) excludes contracts providing insurance for a vehicle that is not required to be registered under the HTA unless the contract is issued in the form approved in Ontario. The applicant registered his vehicle in Alberta and was not required to be registered under the HTA.

20I find no authority providing that the PAU binds the respondent to the laws of the Insurance Act and, thus, it does not grant the Tribunal jurisdiction to determine the applicant’s entitlement to benefits pursuant to the Schedule. As submitted by the respondent, the Supreme Court of Canada found the PAU “should not be interpreted as a general attornment by the appellant to Ontario insurance law in respect of a motor vehicle accident that occurred in (another province)⁷.” I agree with the respondent that the purpose of the PAU is to ensure that insured parties from other jurisdictions have access to, at minimum, the same benefits provided by the Schedule for accidents which occur in Ontario. The PAU has no application to the applicant’s accident – the accident occurred in Alberta, involved a person covered under a policy in Alberta, and the vehicle was registered in Alberta⁸.

21I agree with the respondent and find this matter is remarkably similar to Mapletoft v. Aviva Canada Inc. (“Mapletoft”)⁹. In that case, the injured party was insured pursuant to a policy in Alberta and claimed benefits as a result of an accident which occurred in Ontario in a friend’s vehicle. The arbitrator agreed with Aviva’s submissions and found that there are only two instances where the Insurance Act gives jurisdiction to the Tribunal (then Commission). First, for automobile insurance contracts formed in Ontario; or alternatively, for out-of-province insurance contracts provided the out-of-province insured was involved in an accident when the insured automobile was operated in Ontario. Mapletoft turned on the fact that the out-of-province insured automobile was not involved in the accident in Ontario but rather, the insured’s friend’s vehicle. In the applicants case here, he was involved in an accident with his insured automobile, but the accident was not in Ontario.

22I also find 16-1904 distinguishable from this matter because that matter involved a vehicle that was registered and insured in Ontario. The Insurance Act applied to the insured’s policy in 16-1904 because the policy was an Ontario policy and the insured vehicle was required to be registered under the HTA. Likewise, I agree with the respondent’s interpretation of IMN. It’s true that matter analyzed whether the applicant in that matter was an insured person, however immediately preceding that analysis, the adjudicator found that the evidence does not establish that Part VI of the Insurance Act applies.

CONCLUSION AND ORDER

23The applicant was involved in an accident in Alberta while driving a vehicle registered in Alberta that was insured pursuant to an Alberta policy. Pursuant to section 226(2), Part VI of the Insurance Act does not apply to the applicant’s policy and, as a result, the applicant is not entitled to file an application pursuant to section 280(2) of the Insurance Act. Thus, the Tribunal does not have the jurisdiction provided by section 280(1) to resolve the dispute over the applicant’s entitlement to benefits under the Schedule.

24The Application is dismissed.

Footnotes

1. 1R.S.O. 1990, c. I.8
2. 2R.S.O. 1990, c. H.8
3. 3Young v Ontario (Minister of Finance), 2003 CanLII 23640 (ON CA), [2003] OJ No 4832 (CA)
4. 416-001904 v Security National Insurance Company, 2017 CanLII 33677 (ON LAT) and I.M.N. v Intact Insurance Company, 2019 CanLII 101444 (ONLAT).
5. 5Unifund Assurance Co v Insurance Corp of British Columbia, [2003] 2 SCR 62.
6. 6Ibid.
7. 7Unifund Assurance Co v. Insurance Corp of British Columbia, [2003] 2 SCR 62
8. 8The Ontario Court of Appeal released Travelers Insurance Company of Canada v CAA Insurance Company, 2020 ONCA 382 after this decision was drafted. I find that it confirms my finding that the PAU does not automatically deem the insurer is liable to pay Ontario benefits.
9. 9Mapletoft v. Aviva Canada Inc., [2007] OFSCD No 142.