Citation and File Information
Licence Appeal Tribunal File Number: 23-013127/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.
Parties
Between:
Ali Abdulle Applicant
and
Economical Insurance Company Respondent
Preliminary Issue Hearing Decision and Order
ADJUDICATOR: Tanjoyt Deol
APPEARANCES:
For the Applicant: Mohamed Doli, Counsel
For the Economical: Jessica Meyerovich, Counsel
HEARD: By Way of Written Submissions
OVERVIEW
1Ali Abdulle, the applicant, was involved in a motor vehicle accident on July 27, 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 certain benefits by the respondent, Economical Insurance Company (“Economical”), and applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service (“Tribunal”) for resolution of the dispute.
2The Certificate of Automobile Insurance (“Certificate”) indicates that the applicant took out a policy of insurance with Economical under policy number: 500170037 (the “policy”). This policy was effective from October 22, 2020 to October 22, 2021, and covered the vehicle that was involved in this accident, as well as another vehicle. The existence and validity of this Certificate is undisputed by the parties. Rather, the dispute turns on whether the Excluded Driver Endorsement (“OPCF 28A”) establishes that the applicant was an excluded driver under the contract of automobile insurance.
PRELIMINARY ISSUE IN DISPUTE
3The preliminary issue to be determined is whether the applicant is barred from proceeding to a hearing for an income replacement benefit (“IRB”) because the applicant is subject to exclusions of a driver under the contract of automobile insurance, pursuant to s. 31(1)(a)(iii) of the Schedule.
RESULT
4I find that:
a) Economical has not demonstrated that the applicant is an excluded driver under the contract of automobile insurance. Thus, the exemption under 31(1)(a)(iii) is not applicable.
b) The applicant may proceed with the substantive hearing.
ANALYSIS
The applicant is not an excluded driver under the contract of automobile insurance
5I find that Economical has not met its evidentiary onus to establish that the applicant is an excluded driver, and therefore the exclusion under s. 31(1)(a)(iii) is not applicable.
6Section 31(1)(a)(iii) of the Schedule states that an insurer is not required to pay an IRB, a non-earner benefit or a benefit under sections 21, 22 or 23 if the driver of an automobile at the time of the accident, is an excluded driver under the contract of automobile insurance.
7The onus is on Economical to establish that the applicant was an excluded driver, and therefore it is not required to pay IRBs to him.
8Economical relies on the signed OPCF 28A (and to a lesser extent, the unsigned version, this will be discussed later), as evidence that the applicant was an excluded driver under the policy. It argues that this OPCF 28A was signed by the applicant on October 16, 2020. Moreover, it argues that the applicant acknowledged by signing this that he is an excluded driver and promised to not drive any of the vehicles outlined in the policy, and that he would not be covered for most accident benefits. Lastly, Economical submits that this OPCF 28A was clear that it would form part of the policy issued to the applicant, effective October 22, 2019. As a result, it argues that it is not required to pay IRBs as the applicant was clearly an excluded driver under the contract of automobile insurance as outlined in s. 31(1)(a)(iii) of the Schedule.
9Meanwhile, the applicant argues that Economical has failed to prove that he is an excluded driver. Significantly, he argues that the OPCF 28A is incomplete and invalid as the date of the signature is unclear, there is no policy number, the vehicles the exclusion applies to are not listed, and there is no date of when the endorsement is effective from. Moreover, the applicant submits that Economical has created an unsigned replica of this document, which contains information that is not included in the original version (such as the policy number, the applicant’s driver’s licence number and the endorsement date). As such, the applicant submits that Economical has failed to prove that he is an excluded driver under s. 31.
10There are two versions of the OPCF 28A that have been put before me by the parties. The first version is signed by the applicant, and Economical relies heavily on this document throughout its submissions. The second version is unsigned and is also included in Economical’s evidentiary brief. However, it is unclear from Economical’s submissions whether it is relying on this unsigned version or not to establish that the applicant is an excluded driver.
11I find that Economical has not met its onus to establish that the applicant is an excluded driver under the policy, as it has not led sufficient evidence to support this.
12First, there are several ambiguities contained in the signed version of the OPCF 28A that render it difficult to identify whether it forms part of the policy or not. While Economical argued in its initial submissions that the OPCF 28A was signed on October 16, 2020 and was clear that the applicant would not drive any of the vehicles outlined with the policy number effective on October 22, 2019, I find this is unsupported by the signed version.
13Notably, in the signed version of the OPCF 28A, there is no policy number listed. Significantly, the bottom portion of the OPCF 28A has blank spaces where the following information is to be filled in: the policy number, issued to, effective date, and broker’s information. None of these were completed in the signed version of the OPCF 28A. Critically, the bottom portion of the document also states that “Attached to and forming part of Policy No.”, and leaves a blank space, where the policy number was to be included. In my interpretation, this information was supposed to be filled out to identify which policy this OPCF 28A applied to, which was not done here.
14In a similar vein, I am unable to identify which vehicle this OPCF 28A pertains to. In both the signed and unsigned version of the OPCF 28A, no vehicles are identified in this document. Instead, it states that it pertains to “all vehicles listed on the policy”, however without a policy number, I am unable to ascertain whether these vehicles are the same.
15Likewise, the date that the OPCF 28A was signed is inconclusive. I acknowledge that Economical submits it was signed on October 16, 2020. However, upon review of the signed OPCF 28A, the date that can be deciphered is “Oct 16, 2”. Without a full date on the OPCF 28A, I am unable to make a finding that this was signed on October 16, 2020 as argued. Instead, I agree with the applicant that this date could have several interpretations and does not satisfy Economical’s onus.
16In short, the signed version of the OPCF-28A, that Economical relies on to make its case, contains multiple ambiguities which makes it difficult to ascertain whether the applicant is an excluded driver within the meaning of s. 31(1)(a)(iii).
17Next, as noted above, it is unclear in its submission, whether Economical is also relying on the unsigned version of the OPCF 28A to establish that the applicant was an excluded driver under the policy. For example, Economical in its initial submissions argued that the OPCF 28A was effective as of October 22, 2019, however this information is not contained in the signed version of the document. As already noted above, the bottom portion of the signed version of the document, where the effective date was to be inserted, was left blank.
18Only the unsigned version of the document has the missing information completed at the bottom portion of the document, therefore presumably, Economical is relying on the unsigned version to make this argument. For greater clarity, Economical tendered a copy of the unsigned version of the OPCF 28A where the applicant’s driver’s license number, and the bottom portion of the page has been completed by an unidentified individual. Meanwhile, none of this information was contained in the signed version.
19I place little weight on the unsigned version of the OPCF 28A for the following reasons. First, it is unclear who included this information in the OPCF 28A and when. Second, Economical has failed to provide any submissions on the identity of the individual or why the unsigned version is different than the signed version. Third, I place more weight on the document that was executed by the applicant than an unverified and unsigned version.
20Lastly, I acknowledge Economical’s position that both the signed and unsigned version of the OPCF 28A should be read together, as they are enclosed as one document, and therefore these forms together contain the signed date, policy number, and effective date. However, Economical did not tender any evidence to support this submission. It is well settled that submissions are not evidence.
21In the end, the Schedule is consumer protection legislation, and remedial in nature, and any ambiguity should be read in favour of the applicant. With this in mind, any ambiguities contained in the OPCF 28A should be interpreted in favour of the applicant.
22Economical also made submissions pertaining to the applicant being precluded from IRBs in accordance with s. 31(1)(a)(i) and s. 31(1)(b) of the Schedule. In my view, Economical is raising issues that are not properly before the Tribunal, as these issues were not identified at the Case Conference.
23If other issues are to be added, parties must follow the appropriate procedure, such as filing a motion to add any additional issues or seek an amendment of the Case Conference Report and Order. Neither have been done in this case. In my view, the issues that Economical seeks a determination on is not properly before the Tribunal and will not be considered by me.
24In conclusion, I find that Economical has not met its onus to establish that the applicant is an excluded driver under the contract of automobile insurance.
Remaining arguments
25The applicant also raised concerns that Economical did not raise the issue of him being an excluded driver until more than two and half years after the accident, and that it did not comply with s. 232(3) of the Insurance Act, R.S.O. 1990, c. I.8. While I am alive to these submissions, given my finding above, it is unnecessary to consider these arguments, as I have already determined that the exclusion under s. 31(1)(a)(iii) does not apply, and the applicant may proceed forward with a substantive hearing for his IRBs.
CONCLUSION AND ORDER
26For the reasons outlined above, I find that:
a) Economical has not demonstrated that the applicant is an excluded driver under the contract of automobile insurance. Thus, the exemption under 31(1)(a)(iii) is not applicable.
b) The applicant may proceed with the substantive hearing.
Released: July 24, 2024
__________________________
Tanjoyt Deol
Adjudicator