COURT FILE NO.: CV-18-00610254-0000
DATE: 20191216
SUPERIOR COURT OF JUSTICE – ONTARIO
IN THE MATTER OF the Insurance Act, R.S.O. 1990 c.I.8, as amended and Ontario Regulations 34/10 and 283/95 thereunder;
AND IN THE MATTER OF THE Arbitration Act, S.O. 1991 c. 17, as amended
RE: Pembridge Insurance Company, Applicant (Appellant in Appeal)
AND:
The Sovereign General Insurance Company, Respondent (Respondent in Appeal)
BEFORE: Kimmel J.
COUNSEL: Daniel Strigberger, for the Applicant, Appellant in Appeal, Pembridge Insurance Company
Cameron Grant, for the Respondent, Respondent in Appeal, The Sovereign General Insurance Company
HEARD: July 15, 2019
ENDORSEMENT and reasons for decision (appeal from Arbitration Decision Regarding Responsibility for payment of statutory accident benefits)
The Appeal
[1] Pembridge Insurance Company appeals from the award of Arbitrator Shari Novick dated November 9, 2018, pursuant to which Pembridge was found to be the insurer responsible to pay statutory accident benefits to Ms. Brianna Hennessy as a result of having agreed to take over the priority for her claims.
[2] Pembridge argues that the arbitrator erred in deciding that it was the insurer responsible to pay the accident benefits without having regard to the priority scheme prescribed under s. 268(2) of the Insurance Act, R.S.O. 1990, c. I.8 for determining who is liable to pay statutory accident benefits. Pembridge maintains that it was entitled to dispute its obligation to pay Ms. Hennessy under O. Reg. 283/95 s.1, having complied with all of the prescribed requirements for raising a dispute and making an application for arbitration and there being no express prohibition in the regulations against an insurer that has agreed to accept priority later disputing its obligation to do so.
[3] The Sovereign General Insurance Company seeks to uphold the arbitrator’s findings that:
(i) when Pembridge accepted priority on February 2, 2015 an agreement was formed that could not be unilaterally withdrawn; and
(ii) the existence of that agreement provided a sufficient basis on which to find that