Citation: Wais v. Coachman Insurance Company, 2024 ONLAT 22-010255/AABS

Licence Appeal Tribunal File Number: 22-010255/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:

Mir Wais

Applicant

and

Coachman Insurance Company

Respondent

DECISION

ADJUDICATOR:

Ulana Pahuta

APPEARANCES:

For the Applicant:

Slavko Ristich, Counsel

For the Respondent:

Ibrahim Farag, Counsel

HEARD:

By way of written submissions

OVERVIEW

1Mir Wais, the applicant, was involved in an automobile accident on August 20, 2021, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”). The applicant was denied benefits by the respondent, Coachman Insurance Company, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

ISSUES

2The issues in dispute are:

a) Is the applicant an “insured person” per s. 3(1) of the Schedule?

b) Is the respondent obligated to promptly provide the claim number assigned by the insurer per s. 32(3)4 of the Schedule?

c) Is the respondent liable to pay an award under s. 10 of Regulation 664 because it unreasonably withheld or delayed payments to the applicant?

RESULT

3I find that:

a) The applicant does not meet the definition of an “insured person” pursuant to s. 3(1) of the Schedule.

b) The applicant has not established that the respondent is required to provide a claim number pursuant to s. 32(3)4 of the Schedule.

c) The respondent is not liable to pay an award.

PROCEDURAL ISSUES

Applicant’s request to exclude respondent’s submissions for late-filing

4In his reply submissions for this written hearing, the applicant requested that the respondent’s hearing submissions and affidavit be found inadmissible due to late-filing. The applicant submits that the respondent filed its written hearing submissions outside of the timeline stipulated in the Case Conference Report and Order (“CCRO”). The submissions were due on February 2, 2024, however, the respondent filed its submissions after business hours on Friday February 2, 2024, and as such they were deemed received on Monday February 5, 2024. The applicant also argues that the respondent served its affidavit on September 12, 2023, rather than September 8, 2023.

5I decline the applicant’s request to exclude the respondent’s hearing submissions and affidavit.

6The applicant has not led any evidence or provided specific submissions as to the prejudice he has suffered as a result of the minimal delay. While I appreciate that the applicant had less time to prepare his reply materials, I find that excluding the respondent’s submissions and evidence in this manner would be unduly prejudicial and contrary to procedural fairness. The applicant has provided comprehensive reply submissions and materials in response to the respondent’s hearing materials. However, by striking the entirety of the respondent’s hearing submissions, evidence and affidavit, it would effectively be barred from participating in these proceedings.

Respondent’s motion strike the applicant’s reply submissions

7By way of Notice of Motion dated February 16, 2024, the respondent requested an order to strike paragraphs 5-14 and Tabs 11 and 12 of the applicant’s reply submissions. The respondent submits that in these paragraphs the applicant has improperly raised new issues that should have been raised in his initial hearing submissions. It further argues that in paragraph 14 and Tab 12, the applicant references evidence protected by settlement privilege. The motion was set to be heard as part of this written hearing.

8I agree with the respondent that paragraph 14 and Tab 12 reference evidence protected by settlement privilege, and as such they will not be considered as part of this written hearing.

9The Ontario Court of Appeal in Re Hollinger Inc. 2011 ONCA 579 (Ont. C.A.) has outlined the test for whether communications are settlement privileged. There must be a litigious dispute, the communications must be made with the express or implied intent that they not be disclosed, and the purpose of the communication must have been an attempt to effect a settlement. The Supreme Court of Canada has made it clear in Union Carbide Canada Inc. v. Bombardier In., 2014 SCC 35, that the parties do not have to mark the documents as being without prejudice to invoke the privilege.

10In this instance, paragraph 14 and Tab 12 include reference to and a copy of a formal offer of settlement from the applicant. Such a settlement proposal is clearly and presumptively inadmissible by virtue of settlement privilege. I am not persuaded by the applicant’s argument that this offer is not subject to privilege since the respondent did not respond to it, or exchange further settlement communications. In my view a formal offer of settlement falls squarely within the criteria outlined in Hollinger. As such I grant the respondent’s request to strike paragraph 14 and Tab 12 of the applicant’s reply submissions.

11However, I deny the respondent’s request to strike paragraphs 5-13 of the applicant’s reply. I do not find that these paragraphs improperly raise new issues that should have been raised in initial submissions. From my review of the parties’ submissions, all of these paragraphs reply to issues directly raised in the respondent’s hearing submissions, and are not issues that should have been anticipated by the applicant.

background and parties’ positions

12The applicant was involved in a motor vehicle accident on August 20, 2021. On September 30, 2021 the applicant submitted an Application for Accident Benefits (“OCF-1”) to the respondent. The respondent did not open an accident benefit claim for the applicant, but rather, by email dated October 7, 2021 informed the applicant his policy had lapsed. There is no dispute that the respondent was the applicant’s insurer from 2017 until June 10, 2021. The parties disagree as to whether the respondent was required to accept the applicant’s OCF-1 and pay accident benefits, pending the resolution of a priority dispute pursuant to O. Reg. 283/95 – Disputes Between Insurers.

13The applicant submits that he believed that he had a valid automobile policy with the respondent at the time of the accident. He argues that he did not fully understand the relationship between a broker and insurance company or that his policy with the respondent was no longer in effect. Email correspondence from the applicant’s broker, Zeus Insurance Brokers, establishes that in June and July, 2021 the applicant’s wife reached out to the broker multiple times in an effort to renew their insurance policy when she realized that insurance payments were no longer being withdrawn from their account by the respondent.

14However, the respondent submits that there is no question that its policy with the applicant was no longer in effect. It submits letters from the broker to the applicant dated March 1, 2021 and April 1, 2021 which stated that the respondent’s policy would lapse on June 10, 2021 and that Zeus Brokers would not be able to renew that policy as they were no longer contracted with the respondent, although the applicant disputes receiving these letters. In a July 7, 2021 email, the insurance broker requested $595.81 for a down payment for insurance with Nordique Insurance. The applicant’s wife sent the payment, requested that the broker proceed with the coverage and subsequently sent emails requesting new insurance slips. However, it does not appear that the policy with Nordique Insurance went into effect. In an email dated August 20, 2021, the insurance broker stated that the applicant’s accident was not covered by insurance, since the applicant did not complete an application for insurance that had been emailed on July 12, 2021, forward evidence of ownership or a void cheque.

15The respondent argues that the present matter does not pertain to a priority dispute under O. Reg. 283/95 because there was no automobile policy in effect at the time of the accident with any insurer. As such, the respondent argues the applicant was not an “insured person” pursuant to s. 3(1) of the Schedule at the time of the accident, and that it was not under any obligation to accept the applicant’s OCF-1 and begin paying accident benefits pending resolution of a priority dispute.

16The applicant submits that he was an insured person for the purposes of the Schedule. He argues that he at all times believed that he had a valid insurance policy with the respondent, and that due to language barriers, he did not understand that Nordique Insurance was not in fact the respondent or that Zeus Insurance Brokers did not work for the respondent. However, he also submits that even if he was not “insured” he still had the right to make a claim for accident benefits from the respondent, and the respondent had an obligation to accept the OCF-1 and begin paying benefits until priority was determined.

ANALYSIS

Is the applicant an insured person per s. 3(1) of the Schedule?

17I find that the applicant does not meet the definition of an “insured person” under the Schedule.

18The Schedule provides that insurers are liable to pay certain benefits to, or on behalf of, an insured person who sustains an impairment as a result of an accident involving the use or operation of an automobile.

19Under s. 3(1) of the Schedule, an “insured person” means, in respect of a particular motor vehicle liability policy,

a) the named insured, any person specified in the policy as a driver of the insured automobile and, if the named insured is an individual, the spouse of the named insured and a dependant of the named insured or of his or her spouse,

i. if the named insured, specified driver, spouse or dependant is involved in an accident in or outside Ontario that involves the insured automobile or another automobile, or

ii. if the named insured, specified driver, spouse or dependant is not involved in an accident but suffers psychological or mental injury as a result of an accident in or outside Ontario that results in a physical injury to his or her spouse, child, grandchild, parent, grandparent, brother, sister, dependant or spouse’s dependant,

b) a person who is involved in an accident involving the insured automobile, if the accident occurs in Ontario, or

c) a person who is an occupant of the insured automobile and who is a resident of Ontario or was a resident of Ontario at any time during the 60 days before the accident if the accident occurs outside Ontario.

20I agree with the respondent that the applicant was not a named insured in any insurance policy in effect at the time of the accident. Nor was the applicant driving an insured automobile. Although the applicant submits that he believed that he had a policy in place with the respondent at the time of the accident and has led evidence of the efforts his wife made to put a policy in place with Nordique Insurance, the applicant has not directed me to evidence that an active automobile insurance policy was actually in place at the time of the accident with either insurer. Rather, the evidence establishes that the applicant’s policy with the respondent lapsed in June 2021 and that the applicant’s insurance broker failed to properly put in place a policy with Nordique Insurance prior to the accident.

21Although in his submissions the applicant argues that he was in an “insured vehicle” at the time of the accident, he does not direct me to evidence in support of this claim. I further am not persuaded by the applicant’s argument that a preliminary decision on the issue of whether the applicant was an “insured person” was already rendered at the case conference. The applicant submits that the case conference adjudicator found that the applicant was an insured person “albeit with a different insurer”. From my review of the CCRO, the case conference adjudicator did not render a decision on the issue of whether the applicant was an “insured person”. Rather, the question of whether the applicant was an “insured person” per s. 3(1) of the Schedule was specifically listed as an issue in dispute to be heard at this written hearing.

22I further do not agree with the applicant that regardless whether he was an “insured person”, he still had the “right to make a claim for Accident Benefits” and the respondent had an obligation to accept his OCF-1. Pursuant to s. 2(4) of the Schedule, accident benefits are payable under the Schedule “in respect of an insured person”.

Is the respondent required to provide a claim number pursuant to s. 32(3)4 of the Schedule?

23I find that the applicant has not met his onus to prove that the respondent is required to assign him a claim number for accident benefits and provide it to the central processing agency pursuant to s. 32 of the Schedule.

24Firstly, as I have found that the applicant was not an “insured person” at the time of the accident, pursuant to s. 2(4) of the Schedule, the applicant does not have entitlement to accident benefits from the respondent. As such, the respondent would not be required to assign the applicant a claim number for accident benefits.

25The applicant further argues that the respondent was required to accept his OCF-1 and open a claim by virtue of O. Reg. 283/95. He relies on the decision Zurich Insurance v. Chubb Insurance 2021 ONSC 6363 to argue that even in situations where an insurance policy had lapsed prior to the accident, an insurer cannot deny an application. Rather, pursuant to s. 2.1(6) of O. Reg. 283/95, the first insurer that received the completed application must accept the application and pay accident benefits, pending the result of a priority dispute. The applicant argues that this would apply regardless whether he was an “insured person" under the Schedule.

26I do not agree with the applicant that the present matter is indistinguishable from Zurich Insurance. The decision in Zurich Insurance was rendered based on what is now s. 2(1) of O. Reg. 293/95, which applies to accidents prior to September 1, 2010. However, the current section 2.1(6) of O. Reg. 293/95, which applies in this case, includes the qualifying provision that the insurer will pay benefits “in accordance with the provisions of the Schedule”. This qualifying provision did not appear in the previous section considered in Zurich Insurance. I interpret “‘in accordance with the provisions of the Schedule” to require that the claimant be entitled to accident benefits, or an “insured person” defined in s. 3(1) of the Schedule, in order for the priority regime in O. Reg. 293/95 to be applicable.

27As such, the applicant has not established that the respondent is required to assign him a claim number for accident benefits, pursuant to s. 32(3)4 of the Schedule.

Award

28The applicant sought an award under s. 10 of Regulation 664. He submits that the respondent unreasonably withheld or delayed the payment of benefits as a result of its unjust refusal to open a claim for the applicant. The applicant requests an award in the amount of $85,000.00, being 50% of the benefits available under the non-CAT designation, and 50% of his potential claim for income replacement benefits.

29I find that the applicant has not established a basis for an award. As I have found that the applicant is not entitled to accident benefits from the respondent, there has been no unreasonable withholding of the payment of benefits.

ORDER

30For the foregoing reasons I find that:

i. The applicant is not an “insured person” pursuant to s. 3(1) of the Schedule.

ii. The applicant has not established that the respondent is required to provide a claim number pursuant to s. 32(3)4 of the Schedule.

iii. The respondent is not liable to pay an award.

31The application is dismissed.