Ladene v. Intact Insurance Company, 2021 CanLII 30770

Citation: Ladene v. Intact Insurance Company, 2021 ONLAT 19-013428/AABS

Released Date: 04/09/2021

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:

Leyla Ladene

Applicant

and

Intact Insurance Company

Respondent

DECISION AND ORDER

ADJUDICATOR:

Avril A. Farlam, Vice Chair

APPEARANCES:

For the Applicant:

Kwaku Bona, Paralegal

For the Respondent:

Leanne Zawadzki, Counsel

HEARD:

By way of written submissions

REASONS FOR DECISION AND ORDER

OVERVIEW

1Leyla Ladene (“applicant”) was involved in an automobile accident on May 26, 2016 (“accident”). The applicant sought benefits and received treatment in Alberta under Alberta protocols. The applicant moved to Ontario post-accident and sought benefits pursuant to the Ontario Statutory Accident Benefits Schedule¹ - Effective September 1, 2010 (the ''Schedule'').

2Intact Insurance Company (“respondent”) takes the position that the applicant is not entitled to file an application under the Ontario Schedule because the accident occurred in Alberta, while the applicant was driving a vehicle registered in Alberta and insured under an Alberta policy.

3The applicant disagrees and takes the position that the applicant can elect to have benefits under the Ontario Schedule given that the respondent has offices in both Ontario and Alberta.

4The applicant submitted an application for dispute resolution to the Licence Appeal Tribunal – Automobile Accident Benefits Service (Tribunal). The Tribunal ordered that the preliminary issue below be heard.

PRELIMINARY ISSUE

5The preliminary issue to be decided is:

i. Is the applicant entitled to receive statutory accident benefits pursuant to the [Ontario] Schedule?

RESULT

6The applicant is not entitled to receive statutory accident benefits pursuant to the Ontario Schedule. The application is dismissed.

LAW AND ANALYSIS

7I find that the applicant is not entitled to receive statutory accident benefits pursuant to the Ontario Schedule because she does not meet the statutory requirements for eligibility.

8Section 268 (1) of the Ontario Insurance Act² provides that every motor vehicle liability policy shall be deemed to contain the statutory accident benefits set out in the Schedule. The courts in Ontario have made it clear that the applicability of s. 268 (1) is limited by ss. 226 (2) and 227 (1) to accidents involving insured automobiles being operated in Ontario.³

9Further, s. 3 (1) of the Schedule, which determines entitlement to benefits, requires an applicant to have motor vehicle insurance in Ontario at the time of the accident in order to meet the definition of an “insured person” under the Schedule. Specifically, s. 3 (1) (a) requires an applicant to have motor vehicle insurance in Ontario at the time of the accident. Section 3 (1) (b) requires the accident to occur in Ontario and s. 3 (1) (c) requires the occupant of the insured automobile to be a resident of Ontario or have been a resident of Ontario any time during the 60 days prior to the accident if the accident occurs outside Ontario. If the applicant is not an insured person there is no entitlement to benefits under s 2(4).

10In contrast s. 59 governs election of benefits by insured persons not entitlement to benefits. So, if there is no entitlement to benefits under s. 3(1) then there is no election of benefits. The applicant is only entitled to benefits under the regime in another jurisdiction, here Alberta. As a result, no election is open to the applicant under s. 59 of the Schedule.

11The applicant does not meet any of the tests in s. 3 (1) of the Schedule. The applicant was not a resident of Ontario at the time of the accident and her motor vehicle was not being operated in Ontario. The applicant was driving a vehicle registered in Alberta and insured under an Alberta policy.

12Further, there is nothing in the legislation or relevant case law that ties entitlement to accident benefits under the Schedule to whether the respondent has offices in both Ontario and Alberta. This argument has been made previously and rejected by the Tribunal.⁴

ORDER

13For the reasons above, the applicant is not entitled to receive statutory accident benefits pursuant to the Ontario Schedule. The application is dismissed.

Footnotes

1. 1O.Reg. 34/10
2. 2Insurance Act, R.S.O. 1990, c. I.8, as amended.
3. 3Travelers Insurance Company of Canada v. C.A.A. Insurance, 2020 ONCA 382, 2020 ONCA382; Young v. Ontario (Minister of Finance), 2003 CanLII 23640 (ONCA).
4. 4See for example, A.S. v. Intact Insurance Company, 2020 CanLII 57401 (ONLAT).