Court File and Parties

COURT FILE NO.: CV-22-00677975-0000 DATE: 20230227 ONTARIO SUPERIOR COURT OF JUSTICE

RE: Unifund Assurance Company, Applicant (Respondent) -and- Certas Home & Auto Insurance Company, Respondent (Appellant)

BEFORE: Robert Centa J.

COUNSEL: Lora Castellucci, for the applicant (respondent) Jennifer J. Griffiths and Dakota Forster, for the respondent (appellant)

HEARD: February 5, 2023

Endorsement

[1] This is an appeal by Certas Home & Auto Insurance Company of an interim decision of arbitrator Phillipa G. Samworth, who held that Unifund Assurance Company had complied with the notice provisions under s. 3(1) of Disputes Between Insurers, O. Reg. 283/95 (the “Regulation”) under the Insurance Act, R.S.O. 1990, c. I.8. Ms. Samworth held that Unifund notified Certas that it disputed its obligation to pay statutory accident benefits under s. 268 of the Act within 90 days after Unifund received a completed application for benefits. Ms. Samworth held, therefore, that Unifund provided timely notice to Certas and that the priority dispute between the insurers could proceed.

[2] In my view, the arbitrator made no error of law in her interpretation of s. 3(1) of the Regulation. She also made no error in applying that provision to the agreed facts that the insurers placed before her. I dismiss the appeal for the following reasons.

Facts

[3] On May 26, 2019, M.B. was an 18-year-old woman and the mother of a two-year-old child. On that day, she was involved in a motor vehicle accident. She sustained multiple injuries including a concussion, a brain injury with bleeding, and an injury to her liver. She retained counsel to assist her to obtain compensation for her losses.

[4] On August 21, 2019, counsel for M.B. faxed a letter to Unifund’s accident benefits claims department. Counsel enclosed an application for accident benefits form (OCF-1). The OCF-1 contained personal information about M.B., contact information for her counsel, her employment and educational status, her caregiver status, and some information about other benefit plans that provided coverage to her.

[5] In Part 3 (Accident Details and Health Information) of the OCF-1, M.B. set out the date, time, and place of the accident. She stated that she was a passenger in the vehicle that was involved in the accident, which was reported to the police. She provided the name and badge number of the investigating police officer from the Peel Regional Police Service and reported that she was not charged in connection with the accident. She described the injuries that she suffered, the hospital where she was treated, and the name and contact information for her family physician.

[6] Part 4 (Details of Automobile Insurance) of OCF-1 asks the applicant to indicate if they are covered by any of six automobile insurance policies. M.B. stated that she was covered under the policy of a person on whom she was dependent. She declared that she was not covered under her own automobile insurance policy, a spouse’s policy, any policy that listed her as driver, a policy held by her employer or her spouse’s employer, or any policy insuring long-term rental cars.

[7] M.B. stated that she was dependent on her grandmother, B.B., who held an automobile insurance policy with Unifund. M.B provided that policy number. She did not provide the make, model, and licence plate number for the car insured under B.B.’s policy but both insurers agree that nothing turns on that omission as Unifund had ready access to that information in its own files. M.B. also did not complete the portion of OCF-1 that asked if she occupied the automobile insured by Unifund at the time of the accident.

[8] M.B. did not provide any information about the owner of the car in which she was a passenger at the time of the accident. She did not provide the owner’s name or contact information, or any information about the car or the insurance policy, if any, that covered the car. M.B. stated that she had not reported the accident to any other insurance company.

[9] On August 29, 2019, counsel for M.B. emailed the identical OCF-1 to Unifund. [1] On that same day, Unifund assigned an accident benefits adjuster to the file and attempted to telephone its insured, B.B. Unifund eventually spoke with C.B. who was the daughter of B.B. and the mother of M.B. During that call, C.B. explained that M.B. was riding in her friend Sean’s car when it was involved in a single motor vehicle accident. C.B. confirmed that M.B. did not have her own automobile insurance policy and that M.B. was not riding in B.B.’s car at the time of the accident. C.B. did not know Sean’s last name or any other information about him or about the car he was driving at the time of the accident.

[10] Unifund continued its investigation of the circumstances of the accident. On September 16, 2019, Unifund requested that M.B. be examined under oath pursuant to s. 6(2) of the Regulation. On September 19, 2019, Unifund asked counsel for M.B. to obtain and provide a copy of the police report for the accident.

[11] On September 23, 2019, counsel for M.B. provided the police report to Unifund. The cover letter from the police service was stamped as having been received by M.B.’s lawyers on September 12, 2019. The police report contained the full name of the driver (S.M.), his address, driver’s licence number, the name of the owner of the vehicle (K.M.), and the vehicle’s licence plate number. The report listed Certas as the automobile insurance provider and provided the policy number for the vehicle involved in the accident that injured M.B.

[12] On September 24, 2019, Unifund requested Autoplus reports on M.B. and her father, B.S. Unifund examined M.B. under oath on October 24, 2019. She testified that she had no insurance of her own and that she neither knew the last name of the driver nor the kind of car in which she was riding at the time of the collision.

[13] On December 2, 2019, Unifund put Certas on notice that Unifund disputed its obligation to pay statutory accident benefits to M.B. Unifund advised Certas that it insured M.B.’s maternal grandmother, who was living at a different house at the time of the collision, that M.B. did not have a valid driver’s licence, and that she was not listed on any automobile insurance policy. Unifund took the position that Certas was responsible for the payments because Certas insured the car in which M.B. was a passenger at the time of the collision. Certas received the notice on December 5, 2019, and both insurers agree that this is the relevant date.

[14] Certas took the position that Unifund could not dispute its obligation to pay the benefits to M.B. because it did not give Certas written notice within 90 days of receipt of a “completed application for benefits,” within the meaning of s. 3(1) of the Regulation. Put differently, Certas submitted that Unifund received a completed application for benefits on or before September 6, 2019, which was 90 days before it received notice of the dispute.

The Arbitration Before Ms. Samworth

[15] The parties referred this dispute to private arbitration in accordance with s. 7 of the Regulation. The parties appointed Phillipa Samworth as arbitrator pursuant to an arbitration agreement between them. The agreement contemplated that Ms. Samworth would first determine if Unifund put Certas on notice of the dispute within 90 days after receiving a completed application. The arbitration agreement permitted either party to appeal Ms. Samworth’s decision on a point of law or mixed fact and law.

[16] The parties provided Ms. Samworth with an agreed statement of facts, supplementary books of documents, written factums, and briefs of authorities.

[17] On January 19, 2022, Ms. Samworth released her 13-page, single-spaced decision. She held that Unifund complied with the notice requirements set out in s. 3(1) of the Regulation.

[18] Ms. Samworth set out the issue before her, the applicable legislation, the entire agreed statement of facts, and the key facts from the documents filed by the parties. Ms. Samworth identified three issues to be determined:

a. When did Unifund receive a completed application? b. Did Unifund provide notice of the priority dispute to Certas within 90 days of receiving a complete application as required by s. 3(1) of the Regulation? c. If not, can Unifund nevertheless dispute its obligation to pay benefits by virtue of the saving provision in s. 3(2) of the Regulation?

[19] Ms. Samworth noted that to answer the question of when Unifund received a completed application, she needed to interpret the Regulation to determine what information is reasonably required to be provided to make the OCF-1 complete within the meaning of s. 3 of the Regulation.

[20] Ms. Samworth observed that M.B. provided Unifund with an OCF-1 that contained no information about the car in which she was a passenger at the time of the accident. The OCF-1 did not provide Unifund with any information that would even allow it to begin direct inquiries about which company insured that vehicle. Ms. Samworth found that it was reasonable for Unifund to request M.B.’s counsel to provide it with the police report and that M.B.’s counsel provided the report to Unifund within a few days of the request. It was only when Unifund received the police report that it learned that the name and address of the driver, the name of the owner of the car, its licence plate, and insurer:

In addition, the Application informed Unifund that the Claimant was involved in a single car collision. However, no information was provided about the vehicle that the Claimant was in. When Unifund received the Application for Accident Benefits, it was not provided with the vehicle owner's name, the driver of the vehicle, the type of vehicle, the license plate number of the vehicle, or indeed any information that would have allowed it to even commence inquiries with respect to who might insure that vehicle. Unifund was aware that it was going to need other information. It knew from the Application that the police had attended the scene and it had a police officer's number and the fact that he was employed by Peel Regional Police.

Unifund initially decided to pursue getting the Police Report by requesting it from the Claimant's solicitor. I find nothing wrong in this approach. Particularly as the Police Report was actually sent to Unifund within a few days of it requesting it on September 19, 2019. While the Police Report provided Unifund with Certas' name that does not end the investigation into priority. Now, Unifund had the information in hand to determine issues such as was the Certas policy valid, did the Police Report accurately provide the information with respect to the vehicle that the Claimant was a passenger in, did the policy reflected on the Police Report cover the date of loss. In addition, investigations were ongoing into the question of dependency. Investigations into priority include not only what other insurers may be liable but whether or not the insurer that received the initial Application is in fact the priority insurer. These are all the types of investigations that I believe are to be done within that 90-day period.

[21] Ms. Samworth identified the Court of Appeal for Ontario’s decision in Ontario (Minister of Finance) v. Pilot Insurance Co., 2012 ONCA 33, 109 O.R. (3d) 168 as “more instructive” than the other decisions provided to her. [2] Ms. Samworth noted that Pilot, citing with approval the earlier decision of Perell J. in Ontario (Minister of Finance) v. Lombard Insurance Company of Canada, 2010 ONSC 1770, 100 O.R. (3d) 51, held that for the purposes of s. 3 of the Disputes Between Insurers regulation, a completed application is one that is genuinely complete, functionally adequate for its legislated purpose, or treated as complete based on the conduct of the first insurer. [3] Ms. Samworth interpreted Pilot to place emphasis on the purpose behind s. 3 of the Regulation:

The Court of Appeal noted that as soon as an insurer has sufficient information to notify another insurer that it is disputing liability to pay the benefit that the 90-day Notice period then starts running. The court notes that this interpretation advances the goal of resolving disputes between insurers in a timely and efficient manner.

[22] Ms. Samworth applied this test to the facts of the case before her and concluded that Unifund did not receive a completed application until it received the police report that provided the name and contact information for the driver and owner of the car in which M.B. was riding at the time of the accident. Only then did Unifund have sufficient information to put Certas on notice of the dispute:

I find that in this case, Unifund did not have sufficient information to give written Notice to Certas until it secured the Police Report and determined the identity of the motorist and the owner of the vehicle the Claimant was passenger in. This information started the clock running on the 90 days.

[23] Ms. Samworth considered the decision of Chiappeta J. in Wawanesa Mutual Insurance Co. v. Waterloo Insurance Co., 2014 ONSC 533, as Certas relied heavily on that decision in its submissions. [4] Ms. Samworth concluded that the Wawanesa decision supported her approach. The trigger for the start of the 90-day notice period is not the receipt of the name of the other insurer, it is the receipt of sufficient information to start tracking down the other potential insurer.

[24] Ms. Samworth concluded that Unifund received a completed application on September 23, 2019, when it received the police report. Unifund delivered its notice of dispute to Certas on December 5, 2019, which was within 90 days of receipt of the completed application. Ms. Samworth ordered that the arbitration of the priority dispute could proceed. [5]

Standard of Review

[25] Certas appeals pursuant to s. 45 of the Arbitration Act, S.O. 1991, c. 17. The normal appellate standards of review from Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235 apply on a statutory appeal from a decision of an arbitrator in a priority dispute arbitration. [6]

[26] The standard of review on a question of law is correctness. [7] In this case, the arbitrator’s interpretation of the words “completed application” in s. 3(1) of the Regulation is a question of law that she must have answered correctly.

[27] The standard of review for findings of fact is palpable and overriding error, which is a much more deferential standard of review than correctness. A palpable error is one that is clear to the mind or plain to see. An overriding error is one that is determinative. [8] An error must be both palpable and overriding to provide jurisdiction for the appellate body to interfere with a finding of fact.

[28] The application of a legal standard to a set of facts is a question of mixed fact and law. [9] In my view, the question of when Unifund received a completed application is a question of mixed fact and law. The standard of review on findings of mixed and fact and law lies along a spectrum. Where the error of the decision-maker can be traced to a clear error in principle, it may be characterized as an error of law and subjected to a standard of correctness. Where the legal principle is not readily extricable, then the matter is subject to the standard of palpable and overriding error. [10]

Principles of Statutory Interpretation

[29] Arbitrators and courts must interpret statutes by applying the modern principle of statutory interpretation. They must read the words of the statute in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of the Legislature. [11]

[30] Questions of statutory interpretation must be resolved by analyzing the text, context, and purpose of the statutory provision at issue. This principle applies to regulations, which are to be read in the context of their enabling Act, having regard to the purpose of the Act in general, and more particularly the language and purpose of the relevant enabling provisions. [12] Where, for example, the words used are “precise and unequivocal”, their ordinary meaning will usually play a more significant role in the interpretive exercise. [13]

[31] Arbitrators and courts should not give regulations a meaning that would undermine the purpose of the enabling Act. That would be an error because it would not provide the harmonious reading mandated by the modern principle of statutory interpretation. [14]

The Statutory Scheme

[32] In Ontario, s. 268 of the Act provides that all motor vehicle liability policies are deemed to provide statutory accident benefits as set out in the Statutory Accident Benefits Schedule, O. Reg. 34/10. A person who is injured in a motor vehicle accident may apply for statutory accident benefits.

[33] In many cases, two or more insurers might be responsible for payment. The Act sets out rules to determine which insurance companies are ultimately responsible to pay statutory accident benefits. The Act and its regulations require that insurance companies pay statutory benefits to injured persons while the insurance companies determine through a private arbitration which insurer will ultimately be responsible for payment. The process for resolving those disputes is contained in the Regulation. [15]

[34] The Regulation contains several important definitions. Section 0.1 provides that in the Regulation:

“application” means an application for accident benefits (OCF-1) approved by the Superintendent for the purposes of the Schedule;

“benefits” means statutory accident benefits as defined in subsection 224(1) of the Act;

“completed application” means a completed and signed application;

“Fund” means the Motor Vehicle Accident Claims Fund continued under subsection 2 (1) of the Motor Vehicle Accident Claims Act;

“Schedule” means, in respect of an accident, the Statutory Accident Benefits Schedule as defined in subsection 224 (1) of the Act that applies in respect of the accident.

[35] As I will discuss below, it is important to note that receipt of a “completed application” plays an important role in both ss. 2 (insurer’s obligations) and 3 (insurer’s rights) of the Regulation.

[36] Section 2 of the regulation obliges the first insurer to receive a completed application for benefits to pay benefits to an insured person pending the resolution of any disputes among the insurers who might be responsible for paying the benefits.

(1) The first insurer that receives a completed application for benefits is responsible for paying benefits to an insured person pending the resolution of any dispute as to which insurer is required to pay benefits under section 268 of the Act. …

(6) The first insurer that receives a completed application for benefits from the applicant shall commence paying the benefits in accordance with the provisions of the Schedule pending the resolution of any dispute as to which insurer is required to pay the benefits. [emphasis added]

[37] Section 3 of the Regulation confers the right on the first insurer to receive a completed application for benefits to dispute its obligation to pay. It also sets out the process and timelines for the first insurer to initiate this dispute. Section 3 requires the first insurer to notify the other insurer of a potential dispute within 90 days after the first insurer received a “completed application.” The 90-day notice period in s. 3(1) is subject to extension by s. 3(2). Subsection 3(2) provides an exception for cases in which, despite the reasonable efforts of the insurer seeking indemnity, 90 days is not enough to determine whether another insurer is liable. Section 3 of the regulation provides as follows:

3(1) No insurer may dispute its obligation to pay benefits under section 268 of the Act unless it gives written notice within 90 days of receipt of a completed application for benefits to every insurer who it claims is required to pay under that section. …

(2) An insurer may give notice after the 90-day period if,

(a) 90 days was not a sufficient period of time to make a determination that another insurer or insurers is liable under section 268 of the Act; and

(b) the insurer made the reasonable investigations necessary to determine if another insurer was liable within the 90-day period. …

(3) The issue of whether an insurer who has not given notice within 90 days has complied with subsection (2) shall be resolved in an arbitration under section 7.

[38] Under s. 6 of the regulation, an applicant for benefits person shall provide the insurer with all relevant information needed to determine who is required to pay benefits under s. 268 of the Act. This is important because incomplete or inaccurate reporting of material facts can interfere with an insurer’s rights to dispute priority under the Regulation. [16]

Ms. Samworth Correctly Interpreted the Meaning of “Completed Application”

[39] Certas submits that Ms. Samworth erred in her interpretation of the phrase “completed application” in the Regulation. It submits that she overlooked that “application” is a defined term in the Regulation, meaning an OCF-1. A “completed application,” Certas submits, means one that is filled out and signed. Such a form is a genuinely complete form within the meaning of the case law and Ms. Samworth erred in finding otherwise. I disagree.

[40] The correct approach to statutory interpretation required Ms. Samworth to interpret the meaning of “completed application” for the purposes of s. 3 of the Regulation in light of the text, context, and purpose of the Act and the Regulation. She correctly identified the Court of Appeal for Ontario’s decision in Pilot as the leading decision. [17] Indeed, the key issue in Pilot turned on the meaning of “completed application” for the purposes of triggering the 90-day notice period in s. 3 of the Regulation.

[41] The Pilot case concerned a claim by a cyclist for statutory accident benefits. The cyclist did not know the name of the driver of the vehicle that struck him, so he could not submit his claim to the insurer of that vehicle. Instead, he made a claim against the Motor Vehicle Accident Claims Fund, the payer of last resort. The issue on appeal was whether the Fund provided written notice of its intent to dispute priority to Pilot within 90 days of receiving a completed application for statutory benefits.

[42] In para. 42, the Court of Appeal held that a “completed application” was one that met any one branch of a disjunctive three-part test:

I would adopt the approach that has developed through the jurisprudence -- particularly as set out by Perell J. in Lombard -- to determine when an insurer has received a "completed application" for the purposes of s. 3 of O. Reg. 283/95. That is to say, and as I will discuss below, a completed application is one that is:

(1) genuinely complete; (2) functionally adequate for its legislated purpose; or (3) treated as complete based on the conduct of the first insurer.

[43] The Court of Appeal explained that a genuinely complete application is one that is filled out on the correct form and contained any required attachment.

[44] Even if a form is not genuinely complete, the Court of Appeal held at para. 50 that it could still constitute a completed application if it is functionally adequate for its legislated purpose. An application is functionally adequate if it provides the insurer receiving it with sufficient information to notify another insurer that it is disputing liability to pay the statutory benefits:

Consistently, a functionally adequate application constitutes a "completed application" under s. 3. An insurer is not permitted to rely on shortcomings in written documentation as grounds for claiming that the 90-day notice period has not commenced. As soon as the insurer has sufficient information to notify another insurer that it is disputing liability to pay the benefits, the 90-day notice period starts running.

[45] The Court of Appeal held at para. 55 that the purpose of s. 3 of the Regulation informed the determination if an application is functionally adequate:

To be functionally adequate for the purposes of s. 3 – and thus trigger the 90-day period an insurer has to notify another insurer that it is disputing its obligation to pay benefits – an application must contain sufficient information to allow the first insurer to give notice of dispute to another insurer.

[46] Certas submits that Ms. Samworth misinterpreted the phrase “completed application” in part because she overlooked that “application” is defined in the Regulation to mean “an application for accident benefits (OCF-1) approved by the Superintendent for the purposes of the Schedule.” I do not accept Certas’s submission that Ms. Samworth was not aware that “application” was a defined term in the Regulation. Throughout her reasons for decision, Ms. Samworth demonstrated that she was aware that M.B. submitted her application on the correct OCF-1 Form. Her reasons, considered as a whole, leave me with no doubt the was aware that “application” meant an application on form OCF-1 that was approved by the Superintendent.

[47] Certas submits that “completed application” must be interpreted to mean an OCF-1 that is filled out and signed. In my view, Certas’s interpretation of “completed application” pays insufficient attention to the text, purpose, and context of the Regulation. The words completed application are not precise and unequivocal. The Court of Appeal in Pilot confirmed that the phrase “completed application” must be interpreted purposively. [18]

[48] The legislative purpose of requiring a “completed application” is to ensure that the insurer has the information it needs to perform its legislated obligations under s. 2 and to exercise its legislated rights under s. 3 of the Regulation. [19] Because of the different purposes underlying s. 2 and s. 3 of the Regulation, an application could be a “completed application” for the purposes of one section, but not the other. [20] The purpose of a “completed application” for s. 3 of the Regulation is to provide the first insurer that received it with sufficient information to allow the first insurer to give notice of dispute to another insurer. I do not accept that an OCF-1 that does not fulfil that legislative purpose can be described as a “completed application” or one that is “genuinely complete.” Put differently, Pilot requires that an application be functionally adequate for its legislated purpose in order to be a completed application within the meaning of s. 3 of the Regulation. To the extent that Allstate Insurance Company of Canada v. Wawanesa Mutual Insurance Company, 2020 ONSC 6275, 153 O.R. (3d) 122 interprets Pilot differently, I decline to follow it. [21]

[49] I see no error in Ms. Samworth’s approach. She identified the Pilot case as the most “instructive” of the authorities placed before her, she set out the disjunctive three-part test, and correctly concluded that:

[50] In a related submission, Certas submits that the arbitrator erred in her application of the Pilot test to the facts of this case. Certas submits that Ms. Samworth erred in her application of the Pilot test because in this case, the application was genuinely complete. Certas submits that “there is no evidence or contention that the OCF-1 is filled out improperly and that “all required parts of the OCF-1 are filled out and it is signed.” I disagree.

[51] First, the arbitrator did not find as a fact that M.B. filled out all the required parts of the OCF-1. Section 6 of the Regulation required MB to “provide the insurers with all relevant information needed to determine who is required to pay benefits under section 268 of the Act.”

[52] Ms. Samworth found as a fact that “No information was provided with respect to the owner of the vehicle that she was in when this single-vehicle collision occurred, who the driver was, whether it was insured, or any insurance information.” M.B did not answer the question “Were you an occupant in [B.B.’s] automobile at the time of the accident.” M.B. knew the answer to this question when she filled out the form. If M.B. had answered this question, she would have answered the question “No,” which would have alerted Unifund that she was a passenger in car that was not owned by B.B., which would have raised a priority dispute.

[53] In addition, M.B. did not fill out the section of the form in which she was encouraged to “describe any other vehicle involved in the accident.” M.B. did not know any information that would allow her to answer this question. She did not know the name of the driver, the name of the owner of the vehicle, the automobile licence plate, or insurance information. Ms. Samworth committed no palpable and overriding error in concluding that M.B. did not completely fill out the OCF-1.

[54] I wish to emphasize that M.B. did submit a “completed application” for the purpose of triggering Unifund’s obligation under s. 2 of the Regulation to pay benefits to her. The information she omitted was not necessary for Unifund to discharge its obligation to pay statutory benefits to her. The missing information, however, was necessary for Unifund to put Certas on notice of a priority dispute pursuant to s. 3 of the Regulation.

[55] The arbitrator then applied the law to the facts of the case before her. She held as follows:

I also find that Unifund was diligent in its efforts to secure that information and received it in a reasonable time. In fact, they received it within the 90-day period from the date of August 21, 2019 when the signed Application was received. Therefore, I conclude that there was no conduct on the part of Unifund which would prevent it from arguing that the Application was not complete until the Police Report was received. …

In the case before me, the identity of the owner and driver of the vehicle in which the Claimant was a passenger came with the Police Report. That was the information necessary to trigger the commencement of the 90 days. It was not the fact that the Police Report also provided the name of the insurer. Had the Police Report not identified Certas as the insurer of the vehicle that the Claimant occupied I would still have found that there was a completed Application at the time the Police Report was secured. … It is the information that leads someone through investigation to determine who that insurer is that commences the running of the 90- day period. It just happened to be in this case that both the information needed to complete the Application and the name of the insurer happened to be given to Unifund at the same time.

I therefore conclude that the completed Application in this case was received on September 23, 2019 when Unifund received the Police Report identifying the owner and driver of the vehicle that the Claimant was an occupant of. Therefore, the Notice of Dispute being served dated December 2, 2019 and delivered on December 5, 2019 falls within the 90-day period. Accordingly, Unifund can proceed with its claim against Certas.

[56] Ms. Samworth correctly identified that the purpose of a “completed application” for s. 3 of the Regulation is to provide the first insurer with sufficient information to allow the first insurer to give notice of dispute to another insurer. She carefully considered the evidence before her and applied the facts she found to that correct articulation of the law. The arbitrator’s conclusion was reasonably available to her on the agreed facts and documents placed before her. Her decision is entitled to deference. She made no palpable and overriding error in her application of the facts to her correct articulation of the law.

[57] Indeed, if it were necessary, I would find that that Ms. Samworth was correct. I agree that Unifund did not receive “complete application,” in the sense of providing sufficient information to allow the first insurer to give notice of dispute to another insurer until September 23, 2019. In the words of Pilot, that was the first day Unifund had “sufficient information to notify another insurer that it is disputing liability to pay the benefits.” [22] The 90-day notice period started running on September 13, 2019. Unifund therefore, delivered its notice to Certas on time.

[58] For these reasons, I dismiss the appeal.

[59] If the parties are not able to resolve costs of this appeal, Unifund may email its costs submission of no more than three double-spaced pages to my judicial assistant on or before March 6, 2023. Certas may deliver its responding submission of no more than three double-spaced pages on or before March 10, 2023. No reply submissions are to be delivered without leave.

Robert Centa J. Date: February 27, 2023

Footnotes

[1] Counsel sent the identical OCF-1 to Unifund a third time on September 4, 2019. The parties agree that nothing turns on whether the OCF-1 was received on August 21, 2019, August 29, 2019, or September 4, 2019.

[2] 2012 ONCA 33, 109 O.R. (3d) 168.

[3] Ontario (Minister of Finance) v. Lombard Insurance Company of Canada, 2010 ONSC 1770, 100 O.R. (3d) 51.

[4] 2014 ONSC 533.

[5] Although it was unnecessary for her decision, Ms. Samworth went on to find that she would not have extended the time for Unifund to deliver its notice of dispute under s. 3(2). Unifund does not challenge this decision on the appeal.

[6] 2002 SCC 33, [2002] 2 S.C.R. 235; Continental Casualty Company v. Chubb Insurance Company of Canada, 2022 ONCA 188, at paras. 46-48; Wawanesa Mutual Insurance Company v. Unica Insurance Inc., 2021 ONSC 4266, at paras. 54-57, 71; Allstate Insurance Co. v. Her Majesty the Queen, 2020 ONSC 830; Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65; The Dominion of Canada Insurance Company v. Trafalgar Insurance Company, 2022 ONSC 4270, 163 O.R. (3d) 301, at paras. 63 – 65 [Dominion].

[7] Housen, at para. 8.

[8] Housen at para. 5; Dominion, at para. 64.

[9] Housen at para. 36.

[10] MacDonald v. Chicago Title Insurance Co. of Canada, 2015 ONCA 842, 127 O.R. (3d) 663, at paras. 1-41, leave to appeal refused [2016] S.C.C.A. No. 39; Creston Moly Corp. v. Sattva Capital Corp., 2014 SCC 53, [2014] 2 S.C.R. 633; Housen at para. 36; Dominion, at para. 64.

[11] Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653 at para. 117; Rizzo & Rizzo Shoes Ltd., (Re), [1998] 1 S.C.R. 27, at para. 21, and Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42, [2002] 2 S.C.R. 559, at para. 26; Varriano v. Allstate Insurance Company of Canada, 2023 ONCA 78, at para. 23.

[12] Bristol-Myers Squibb Co. v. Canada (Attorney General), 2005 SCC 26, [2005] 1 S.C.R. 533, at para. 38; Beaudin v. Travelers Insurance Company of Canada, 2022 ONCA 806, 28 C.C.L.I. (6th) 1, at para. 36.

[13] Canada Trustco Mortgage Co. v. R., 2005 SCC 54, [2005] 2 S.C.R. 601, at para. 10.

[14] Beaudin at para. 77.

[15] Disputes Between Insurers O. Reg. 283/95, as amended.

[16] Primmum Insurance Co. v. Aviva Insurance Co. of Canada, at para. 27; State Farm Mutual Automobile Insurance Co. v. Ontario (Minister of Finance), (2001), 53 O.R. (3d) 436 (S.C.J.), at para. 30.

[17] 2012 ONCA 33, 109 O.R. (3d) 168.