RECONSIDERATION DECISION
Before: D. Gregory Flude, Vice Chair
File: 18-012155/AABS
Case Name: [J. J.] vs. Jevco Insurance
Written Submissions by:
For the Applicant (Responding Party): Joseph Cescon, Counsel and Ryan Marinacci, Student-at-law
For the Respondent (Moving Party): Tracy Brooks, Counsel
OVERVIEW
1On April 1, 2020, I released my decision in this matter finding that the applicant, [J. J.], was insured under a policy of insurance issued by Jevco Insurance (“Jevco”) when he was seriously injured while driving his newly acquired motorcycle. In response, Jevco invoked Rule 18 of the Licence Appeal Tribunal, Animal Care Review Board, and Fire Safety Commission Common Rules of Practice and Procedure, Version I (October 2, 2017) to request that I reconsider my decision.
2Rule 18.2 sets out the grounds for setting aside a decision on reconsideration, while Rule 18.1 requires Jevco to identify the grounds upon which it relies. In this request, Jevco has identified Rule 18.2(b): “The Tribunal made a significant error of law or fact such that the Tribunal would likely have reached a different decision had the error not been made.” Having considered the parties’ submissions, I can find no such error.
Background Facts and Previous Decision
3While Rule 18.2(b) incorporates an enquiry into both facts and law, the material facts in this case were not in dispute. Jevco must uncover an error of law to succeed.
4[J. J.] owned a pick-up truck that was insured by Jevco. That policy contained standard wording concerning “newly acquired automobiles.” On July 4, 2016, Mr. [J.] called his insurance broker, Joshua Madeiros, to discuss getting insurance for a Harley-Davidson motorcycle. Mr. Madeiros advised Mr. [J.] that Jevco did not cover motorcycles and that he would have to look to another insurance company for coverage. Ultimately, Mr. Madeiros advised Mr. [J.] that his driving record was so bad that he could only be insured through the insurer of last resort, the Facility Association. Mr. Madeiros was unfamiliar with the procedure for applying to the Facility Association and told Mr. [J.] that it would take some time to get him insurance coverage.
5The next day, on July 5, 2016, Mr. [J.] purchased a Harley-Davidson motorcycle. He did not advise Mr. Madeiros of the purchase on that day but did check on several occasions before the accident to see if Mr. Madeiros had an insurance quote. Mr. Madeiros answered that there was no quote yet, but he was awaiting the assistance of a co-worker.
6On July 16, 2016, 11 days after purchasing the motorcycle, Mr. [J.] crashed in the early hours of the morning and sustained serious injuries.
7Notwithstanding Mr. Madeiros’s advice in the July 4, 2016 discussion that Jevco does not cover motorcycles, Mr. [J.] took the position that the “newly acquired automobile” provisions in s. 2.2.1 of the Standard Ontario Automobile Policy (“OAP.1”) automatically extended insurance on the motorcycle for 14 days from the date of purchase. The applicable wording in s. 2.2.1 was as follows:
Your newly acquired automobile(s) will be insured as long as you inform us within 14 days from the time of delivery and pay any additional premium required.
8It is common ground that Mr. [J.] did not inform Jevco of his purchase of the motorcycle until August 2, 2016, beyond the 14-day period.
9Mr. [J.] submitted that the provision in question extends coverage automatically for 14 days. Jevco argued that the provision has two conditions precedent to coverage: for the insured to inform the insurer within 14 days of having purchased a new vehicle, and for the insured to pay any additional premium. It took the position that Mr. [J.] failed to fulfil both conditions and, therefore, was not covered on day 11 when the accident occurred. I was persuaded by the court’s reasoning in Hunter Estate v. Thompson, 2002 CanLII 9225 (ONSC) (rev’d on other grounds at 2003 CanLII 20037) (“Hunter Estate”) that the extension of coverage was automatic for 14 days. Accordingly, I found that Mr. [J.] was covered when the accident occurred.
The Errors in Law
10The alleged errors of law are set out in paragraph 11 of Jevco’s request for reconsideration, as follows:
(A) This request for reconsideration is not premature;
(B) The Tribunal made an error of law in its interpretation and application of Hunter Estate;
(C) The Tribunal made an error of law when it failed to consider and apply binding precedent in Rodriquez v. Zhang;
(D) The Tribunal made an error of law when it failed to consider or discuss the issue of onus.
Prematurity
11While not an error in law, Jevco has raised the issue of prematurity. Rule 18.1 states: “The Tribunal may… reconsider any decision of the Tribunal that finally disposes of an appeal.” On its face, my decision of April 1, 2020 does not finally dispose of the appeal as it leaves the matter open to proceed on entitlement to specific benefits. The parties have now entered into an agreement settling entitlement to benefits such that the decision and this reconsideration decision will finally dispose of the proceeding. On that basis, I find the request for reconsideration satisfies the test in Rule 18.1 and is not premature.
Hunter Estate
12At paragraph 20 of its request for reconsideration, Jevco submits that I failed to apply one branch of the analysis set out in Hunter Estate, namely the risk analysis. Jevco raised this argument at first instance and it was dealt with in my decision at paragraph [24]. I held, and continue to hold, that the court’s risk analysis at paragraph 20 cannot be read in a manner that displaces the plain wording of s. 2.2.1. There is no restriction on the type of newly acquired automobile. I see no error of law.
Rodriquez v. Zhang
13Jevco cites Rodriquez v. Zhang 2015 ONSC 5644 (“Rodriquez”) in support of “the principle that a coverage issue (i.e. circumstance where insurer may not otherwise extend coverage) raised by the insurer supersedes [sic] automatic coverage:” Jevco’s submissions at paragraph 28. Given the facts in Rodriquez, the application of this submission to the current facts is far from clear.
14Rodriquez involved several motions and counter-motions brought by the parties to determine if Rodriquez was covered by a policy of insurance issued by Allstate Insurance Company on the Vespa he was operating. Allstate argued that he was and sought a declaration that he fell within the provisions of the newly acquired automobile coverage in s. 2.2.1. Zhang argued that he did not. The advantage to Zhang was that, if Rodriquez was uninsured at the time of the accident, he could not maintain an action in damages against Zhang. Zhang was successful. On its facts, the case has no application to the current case and is entirely distinguishable. Not to follow it was not an error of law.
15In Rodriquez, Rodriquez purchased a Vespa and notified Allstate of the purchase within several days. Allstate raised a question about his lack of a full M class licence and did not communicate further with Rodriquez. Approximately 3 weeks later, after the expiry of the 14-day period, Rodriquez was involved in an accident with Zhang. Allstate sought partial summary judgment that Rodriquez was insured under s. 2.2.1. It turned out that Rodriquez owned other vehicles in Mexico that were not insured by Allstate. The court held that Rodriquez was not insured by Allstate under s. 2.2.1 since he did not meet the conditions, the 14-day period had expired at the time of the accident, and he did not insure all his vehicles with Allstate. On the current facts, Mr. [J.] was injured within the 14-day period and insured his only other vehicle with Jevco.
Onus - M.F. and Belair Direct, 2017 CanLII 19200 (ONLAT)
16Jevco submits that my failure to address Mr. [J.]’s onus to prove that he was aware of s. 2.2.1 and relied on it was an error of law. It relies on the case of M.F. and Belair Direct, 2017 CanLII 19200 (ONLAT) (“M.F.”). As in the case of the Rodriquez, there appears to be a subtlety in this submission that escapes me. I can see no parallel between M.F. and the current facts that created an obligation on Mr. [J.] to attest that he was aware of and relied on s. 2.2.1. Either he fell within the provisions of the policy and was insured, or he did not. His understanding of whether he was insured or not has no place in the analysis.
17There are provisions in the Statutory Accident Benefits Schedule – Effective September 1, 2010 (the “Schedule”) O. Reg 34/10 that require an enquiry into the state of mind of the applicant. One such provision arises out of the exclusion of entitlement to an income replacement benefit for uninsured motorists. That was the provision that was under consideration in M.F.
18In M.F., the applicant purchased an All-Terrain Vehicle (“ATV”). On the date of purchase, he noted a gas leak and asked his friend, R, to tow the vehicle to R’s premises for storage. The gas leak was repaired on November 20 but, on November 21, M.F. crashed the vehicle while unloading it from a trailer. He broke several bones and sought an income replacement benefit. On November 25, he notified Belair of the purchase.
19Pursuant to the Schedule, M.F. was not entitled to an income replacement benefit “if [M.F.] knew or ought reasonably to have known that he...was operating the automobile while it was not insured under a motor vehicle liability policy.” After first determining that M.F. had no insurance – because he had taken delivery of the vehicle on October 25 when he had given it to R pending repairs, not November 20 which was the first time he had his hands on it – Adjudicator Sewrattan then addressed the subjective knowledge test in s. 31(1)(a)(i). It is in this context that he concluded that M.F. had an obligation to show that he was aware of the provisions of s. 2.2.1 and misunderstood them such that he believed he had coverage. M.F. led no such evidence.
20M.F. does not engage s. 2.2.1 after Adjudicator Sewrattan determined that the 14-day period had elapsed. It addresses the faint hope clause in s. 31(1)(a)(i) of the Schedule, that is, having been found to be operating the vehicle without insurance because of the lapse of the automatic 14-day extension, could M.F. demonstrate that he had a reasonable subjective belief that he was covered. In this context, Adjudicator Sewrattan required evidence to suggest that M.F. had read s. 2.2.1 and misunderstood it. The principles in M.F. interpreting s, 31(1)(a)(i) have no application to the current facts and not to apply them was not an error in law.
CONCLUSION
21Based on the foregoing, I have found no error in law in the original decision. The request for reconsideration is denied.
D. Greg Flude Vice Chair Tribunals Ontario- Safety, Licensing Appeals and Standards Division
Released: October 7, 2020