COURT FILE NO.: CV-18-601117
DATE: 20220530
ONTARIO SUPERIOR COURT OF JUSTICE
RE: HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO AS REPRESENTED BY THE MINISTER OF FINANCE, Appellant
-and-
GORE MUTUAL INSURANCE, Respondent
BEFORE: FL Myers J
COUNSEL: John Friendly and Drew T. Higginbotham, for the Appellant
Arthur R. Camporese, for the Respondent
HEARD: May 24, 2022
ENDORSEMENT
The Appeal
[1] On consent, the title of proceeding is amended to substitute the Minister of Government and Consumer Services for the Minister of Finance as Her Majesty’s representative on this appeal.
[2] The Minister appeals from the decision of Arbitrator Kenneth Bialkowski, dated June 6, 2018, holding the Motor Vehicle Accident Claims Fund liable to pay statutory accident benefits under subsection 268 (2) of the Insurance Act, RSO 1990, c I.8. The benefits are payable to or on behalf of the claimants Christopher Ugulini (deceased) and Lindsay Lance with respect to personal injuries they sustained in a snowmobile accident that occurred on December 26, 2013.
[3] This appeal involves a narrow question of law. The issue is whether the snowmobile insured by Gore Mutual was “involved in the incident from which the entitlement to statutory accident benefits arose” under s. 268 (2)(1)(iii) of the statute.
[4] The issue is one of law become it involves the assessment of scope or content the legal test that applies to the facts as found. The facts are clear and uncontested. Rather, the issue is what does it mean to be “involved in the incident”.
The Standard of Review and Outcome
[5] The court will review the decision of the arbitrator on a standard of correctness on the issue of law in this appeal. The regular appeal standard applies to appeals from arbitrations under Regulation 283/95. I do not need to go further to consider if the decision in Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, impacts the standard of review applicable on appeals from consensual arbitrations generally for the reasons discussed in paras. 9 to 14 of Her Majesty the Queen in Right of Ontario (Minister of Government and Consumer Services) v Royal & Sun Alliance Insurance Company of Canada, 2021 ONSC 3922, (referring to the decisions of Davies J., in Allstate Insurance Company v. Her Majesty the Queen, [2020 ONSC 830](https://www.canlii.org/en/on/onsc/doc/2020/2020onsc830/2020onsc830.html