Healy v. Interboro Mutual, (1999) 119 O.A.C. 354 (CA)

• Judge: Weiler, Goudge and Borins, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: May 17, 1999
• Jurisdiction: Ontario
• Citations: (1999), 119 O.A.C. 354 (CA)

Healy v. Interboro Mutual (1999), 119 O.A.C. 354 (CA)

MLB headnote and full text

Temp. Cite: [1999] O.A.C. TBEd. MY.033

Peter Joseph Healy (plaintiff/respondent) v. Interboro Mutual Indemnity Insurance Company (defendant/appellant) and Guardian Insurance Company of Canada (defendant/respondent)

(C29961)

Indexed As: Healy v. Interboro Mutual Indemnity Insurance Co. et al.

Ontario Court of Appeal

Weiler, Goudge and Borins, JJ.A.

May 17, 1999.

Summary:

Healy, a New York state resident, was seriously injured in a motor vehicle accident in Ontario, while a passenger in Blake's motor vehicle. Blake's vehicle was insured in Ontario by Guardian. Healy was insured in New York by Interboro. In 1964, Inter­boro had filed a power of attorney and under­taking (PAU), which had effect in Ontario. Interboro undertook not to set up any defence which could not be set up had the contract been entered into in the province where proceed­ings were instituted. Healy sued both Guard­ian and Interboro for statu­tory accident benefits (SABS). Guardian and Interboro each moved for an order that the other was required to pay the SABS and an order dismissing the action against it.

The Ontario Court (General Division), in a decision reported at 66 O.T.C. 105, held that Interboro was required to pay the SABS under the PAU. Interboro appealed.

The Ontario Court of Appeal dismissed the appeal.

Insurance - Topic 5010.6

Automobile insurance - Compulsory gov­ernment schemes - General - Reciprocal schemes - Healy, a New York state resi­dent, was seriously injured in a car acci­dent in Ontario, while a passenger in Blake's car - Blake's car was insured in Ontario by Guardian - Healy was insured in New York by Interboro - In 1964, Interboro had filed a power of attorney and undertaking (PAU), with the British Columbia Financial Institutions Commis­sion - Inter­boro undertook not to set up any defence which could not be set up had the contract been entered into in the prov­ince where pro­ceedings were instituted - Healy sued Guardian and Interboro for statutory acci­dent benefits (SABS) - At issue was which insurer was liable - The Ontario Court of Appeal held that Interboro was liable under the PAU - The court rejected Interboro's submissions that: (1) the PAU only applied if the vehicle insured under the foreign policy was being operated in Ontario; (2) the PAU did not provide for the payment of SABS and (3) the PAU was no longer in force in Ontario because of subsequent legislative changes.

Insurance - Topic 5135

Automobile insurance - Compulsory gov­ernment schemes - Actions by insured against insurer - Defences - Circum­stances where insurer is precluded from raising a defence - [See Insurance - Topic 5010.6 ].

Cases Noticed:

Potts v. Gluckstein et al. (1992), 56 O.A.C. 290; 8 O.R.(3d) 556 (C.A.), refd to. [para. 9].

Prasad v. Gan Canada Insurance Co. (1997), 100 O.A.C. 63; 33 O.R.(3d) 481 (C.A.), refd to. [para. 13].

Counsel:

Richard H. Krempulec, Q.C., and Stephen R. Moore, for the appellant;

Leah K. Bowness, for the respondent, Peter Joseph Healy;

Harry P. Brown, for the respondent, Guardian Insurance.

This appeal was heard on April 16, 1999, by Weiler, Goudge and Borins, JJ.A., of the Ontario Court of Appeal.

Goudge, J.A., released the following judg­ment for the Court of Appeal on May 17, 1999.