Sorokin v. The Wawanesa Mutual Insurance Company

[Indexed as: Sorokin v. The Wawanesa Mutual Insurance Co.]

94 O.R. (3d) 81

Court of Appeal for Ontario,

Winkler C.J.O., Goudge and Epstein JJ.A.

February 17, 2009

Insurance -- Automobile insurance -- Statutory accident benefits -- Interest -- Motion judge not erring in ordering insurer to pay interest on sum payable to insured but unpaid for 19 months at rate provided for by s. 46(2) of Statutory Accident Benefits Schedule -- Accidents on or after November 1, 1996, O. Reg. 403/96.

The insurer appealed an order requiring it to pay interest at the rate provided for by s. 46(2) of the Statutory Accident Benefits Schedule on a sum payable to the insured but unpaid for some 19 months.

Held, the appeal should be dismissed.

The clear policy intent of s. 46 of the SABS is compensatory. Section 46(2) is part of that compensatory scheme. It was entirely consistent with the policy behind s. 46 to calculate the loss incurred due to the late payment pursuant to s. 46(2).

APPEAL from the order of Boswell J., (2008), 2008 ONSC 26265, 92 O.R. (3d) 314, [2008] O.J. No. 2141 (S.C.J.) with respect to interest.

Cases referred to Attavar v. Allstate Insurance Co. of Canada (2003), 2003 ONCA 7430, 63 O.R. (3d) 199, [2003] O.J. No. 213, 186 O.A.C. 268, 47 C.C.L.I. (3d) 8, 37 M.V.R. (4th) 1, 119 A.C.W.S. (3d) 1009 (C.A.) Statutes referred to Insurance Act, R.S.O. 1990, c. I.8 Rules and regulations referred to Statutory Accident Benefits Schedule -- Accidents on or after November 1, 1996, O. Reg. 403/96, s. 46, (2)

Darrell P. March, for appellant Wawanesa Insurance. Edward Goldentuler, for respondent Vladislav Sorokin.

Endorsement

[1] Endorsement BY THE COURT: -- The fundamental issue in this appeal is whether the motion judge was correct in ordering the appellent to pay interest on an amount of $40,942.02 at the rate provided for by s. 46(2) of the Statutory Accident Benefits Schedule -- Accidents on or after November 1, 1996, O. Reg. 403/96 of the Insurance Act, R.S.O. 1990, c. I.8. That amount represented interest ordered by the Financial Services Commission of Ontario on certain specified benefits that the appellant was required to pay to the respondent.

[2] The important fact in this case is that the parties agree that this sum was owing to the respondent as of May 4, 2004, but was [page82 ]not paid until December 13, 2005. It is not necessary to decide whether interest must be considered a "benefit" for all purposes. It is sufficient that here there was a sum payable but unpaid and therefore overdue for some 19 months. The clear policy intent of s. 46 of the SABS is compensatory as described in Attavar v. Allstate Insurance Co. of Canada (2003), 2003 ONCA 7430, 63 O.R. (3d) 199, [2003] O.J. No. 213 (C.A.). Section 46(2) is a part of that compensatory scheme.

[3] This action was brought in part to recover for the loss incurred due to the late payment of the sum of $40,942.02, some 19 months after it was owing. It is entirely consistent with the policy behind s. 46 to calculate that loss pursuant to s. 46(2).

[4] The appeal must be dismissed.

[5] Costs are fixed at $6,000.

Appeal dismissed.