Alberta Motor Association et al. v. Alberta (Superintendent of Insurance) et al., 2010 ABQB 512

• Judge: Yamauchi, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: June 03, 2010
• Citations: 2010 ABQB 512;(2010), 498 A.R. 24 (QB)

Alta. Motor Assoc. v. Alta. (2010), 498 A.R. 24 (QB)

MLB headnote and full text

Temp. Cite: [2010] A.R. TBEd. AU.029

In The Matter Of The Insurance Act, R.S.A. 2000, c. I-3, as amended, The Societies Act, R.S.A. 2000, c. S-14, as amended, and The Alberta Motor Association Act, S.A. 1938, c. 102

And In The Matter Of the Determination of Certain Questions affecting the Rights of Applicants under the Insurance Act

Alberta Motor Association, Alberta Motor Association Insurance Company and A.M.A. Insurance Agency Ltd. (applicants) v. Superintendent of Insurance and Her Majesty the Queen in Right of the Province of Alberta (respondents)

(1003 06511; 2010 ABQB 512)

Indexed As: Alberta Motor Association et al. v. Alberta (Superintendent of Insurance) et al.

Alberta Court of Queen's Bench

Judicial District of Edmonton

Yamauchi, J.

August 4, 2010.

Summary:

The applicants, Alberta Motor Association, Alberta Motor Association Insurance Company and A.M.A. Insurance Agency Ltd., sought: (a) a declaration that their long-standing policy and practice of providing contracts of automobile insurance only to members of the Alberta Motor Association did not become unlawful as a result of certain amendments to the Insurance Act (the 2004 Amendments); (b) in the alternative, a declaration that the Insurance Act, s. 505, permitted the applicants to charge a fee whenever they were providing a service related to processing a contract for automobile insurance.

The Alberta Court of Queen's Bench dismissed the application.

Insurance - Topic 211

Regulation - General - Fraternal society (incl. what constitutes) - The applicants, Alberta Motor Association ("A.M.A."), Alberta Motor Association Insurance Company and A.M.A. Insurance Agency Ltd., sought a declaration that their long-standing policy and practice of providing contracts of automobile insurance only to members of the A.M.A. did not become unlawful as a result of certain amendments to the Insurance Act - The respondents argued that by requiring a person to become a member of A.M.A. before A.M.A. Insurance would provide basic coverage on a private passenger vehicle, A.M.A. was taking an "adverse contractual action", which was prohibited by s. 613.1 of the Insurance Act - The applicants argued, inter alia, that the Alberta government allowed a fraternal society to make other insurance contracts "with its members only" (Insurance Act, s. 1(v) and Part 5) - The Alberta Court of Queen's Bench held that insofar as automobile insurance was concerned, the applicants did not fall within the definition of "fraternal society" - Although the definition of "fraternal society" in s. 1(v) of the Insurance Act provided a list of specific types of insurance that a fraternal society could make with its members only, it made no mention of automobile insurance policies (expressio unius est exclusio alterius) - Part 5 of the Insurance Act dealt specifically, and extensively, with automobile insurance - Thus, one would have expected the legislature to include a reference to automobile insurance in the definition of "fraternal society" had it so intended to include it - See paragraphs 34 to 37.

Insurance - Topic 3703

Automobile insurance - General - Prohibition on refusal to process application or issue contract ("adverse contractual action") - The applicants, Alberta Motor Association ("A.M.A."), Alberta Motor Association Insurance Company and A.M.A. Insurance Agency Ltd., sought: (a) a declaration that their long-standing policy and practice of providing contracts of automobile insurance only to members of the A.M.A. did not become unlawful as a result of certain amendments to the Insurance Act (the 2004 Amendments); (b) in the alternative, a declaration that the Insurance Act, s. 505, permitted the applicants to charge a fee whenever they were providing a service related to processing a contract for automobile insurance - The respondents argued that by requiring a person to become a member of A.M.A. before A.M.A. Insurance would provide basic coverage on a private passenger vehicle, A.M.A. was taking an "adverse contractual action", which was prohibited by s. 613.1 of the Insurance Act - The applicants argued that the 1938 Alberta Motor Association Act, a specific statute permitting A.M.A. to be a member-based organization and to provide insurance to members only, overrode s. 613.1 of the Insurance Act - The Alberta Court of Queen's Bench dismissed the application - The court stated that "There is no conflict between the 1938 Act and the Insurance Act. The 1938 Act gives A.M.A. the power to provide insurance to its members. The Insurance Act does not prohibit A.M.A. from providing insurance to its members. The Insurance Act simply says that A.M.A. must not limit its provision of those contracts. Contrary to the Applicants' argument, if there is a conflict between the 1938 Act and the Insurance Act, the provisions of the Insurance Act take precedence over the 1938 Act. The 1938 Act provides A.M.A. with power to 'insure any member' but makes that power subject to the provisions of the Insurance Act. The Insurance Act deals specifically with automobile insurance. Thus, we must 'apply the specific provision to the exclusion of the more general one'" - Further "s. 505 is found in Part 4 of the Insurance Act, which applies to all forms of insurance. A.M.A. Agency is not prohibited from charging a fee for providing a service so long as the customer agrees in advance, in writing, to pay the fee. A.M.A. Agency may ask a customer to become a member of A.M.A., but it cannot refuse to process an application for basic automobile insurance coverage if the customer declines so to do" - See paragraphs 38 to 46.

Statutes - Topic 1554

Interpretation - Construction where meaning is not plain - Implied meaning - Stating one thing implies exclusion of another (expressio unius est exclusio alterius) - [See Insurance - Topic 211 ].

Statutes - Topic 2607

Interpretation - Interpretation of words and phrases - Modern rule (incl. interpretation by context) - Special provision versus general provision - [See Insurance - Topic 3703 ].

Cases Noticed:

R. v. Ulybel Enterprises Ltd., [2001] 2 S.C.R. 867; 275 N.R. 201; 206 Nfld. & P.E.I.R. 304; 618 A.P.R. 304; 2001 SCC 56, refd to. [para. 25].

Kerr Interior Systems Ltd., Re (2009), 457 A.R. 274; 457 W.A.C. 274; 2009 ABCA 240, refd to. [para. 26].

Auer v. Lionstone Holdings Inc. et al. (2005), 363 A.R. 84; 343 W.A.C. 84; 2005 ABCA 78, refd to. [para. 26].

Morash v. Morash (2004), 221 N.S.R.(2d) 115; 697 A.P.R. 115; 2004 NSCA 20, refd to. [para. 26].

Rizzo & Rizzo Shoes Ltd. (Bankrupt), Re, [1998] 1 S.C.R. 27; 221 N.R. 241; 106 O.A.C. 1, refd to. [para. 28].

Tardif Estate et al. v. Wong et al. (2002), 303 A.R. 103; 273 W.A.C. 103; 2002 ABCA 121, refd to. [para. 28].

University Health Network et al. v. Ontario (Minister of Finance) (2001), 151 O.A.C. 286 (C.A.), refd to. [para. 36].

Winnipeg (City) v. Morguard Properties Ltd. et al., [1983] 2 S.C.R. 493; 50 N.R. 264; 25 Man.R.(2d) 302, refd to. [para. 42].

Statutes Noticed:

Alberta Motor Association Act, S.A. 1938, c. 102, sect. 3(c), sect. 3(d), sect. 4 [para. 5].

Insurance Act, R.S.A. 2000, c. I-3, sect. 1(v) [para. 34]; sect. 107(2) [para. 31]; sect. 505 [para. 11]; sect. 613.1 [para. 17].

Authors and Works Noticed:

Sullivan, Ruth, Sullivan on the Construction of Statutes (5th Ed. 2008), pp. 172 [para. 42]; 175 [para. 43]; 244 [para. 35]; 343 [para. 27].

Counsel:

Mathew F. Wesolowski and Ramon T. McKall (Alberta Motor Association Insurance Company), for the applicants;

Christopher D. Holmes (Alberta Justice, Civil Law), for the respondents.

This application was heard on June 3, 2010, by Yamauchi, J., of the Alberta Court of Queen's Bench, Judicial District of Edmonton, who filed the following reasons for judgment on August 4, 2010.