Luu v. Zurich Insurance Co., (1997) 98 O.A.C. 344 (DC)

• Judge: Saunders, Keenan and Sharpe, JJ.
• Court: Ontario Court of Justice General Division (Canada)
• Case Date: March 17, 1997
• Jurisdiction: Ontario
• Citations: (1997), 98 O.A.C. 344 (DC)

Luu v. Zurich Ins. Co. (1997), 98 O.A.C. 344 (DC)

MLB headnote and full text

Thuyen Thi Luu (applicant) v. Zurich Insurance Company (respondent)

(451/96)

Indexed As: Luu v. Zurich Insurance Co.

Ontario Court of Justice

General Division

Divisional Court

Saunders, Keenan and Sharpe, JJ.

March 17, 1997.

Summary:

Luu was covered by a motor vehicle in­surance policy in Ontario. Luu was killed in a motor vehicle accident while visiting Viet Nam. Luu's wife claimed under the policy. The insurer denied the claim on the ground that the accident occurred beyond the terri­torial limits of the policy. The wife took the matter to arbitration. The Director of Arbi­trations of the Ontario Insurance Com­mis­sion affirmed the insurer's decision to deny the claim. The wife applied for judicial review.

The Ontario Divisional Court dismissed the application.

Administrative Law - Topic 5008

Judicial review - Certiorari - Scope of review - Luu was covered by a motor vehicle in­surance policy in Ontario - Luu was killed in a motor vehicle accident while visiting Viet Nam - Luu's wife claimed under the policy - The insurer denied the claim on the ground that the accident occurred beyond the terri­torial limits of the policy - The wife took the matter to arbitration - The Director of Arbi­trations of the Ontario Insurance Com­mis­sion affirmed the insurer's decision to deny the claim - The wife applied for judicial review - The Ontario Divisional Court observed that the standard of review of a decision of the Director was correct­ness not patent unreasonableness - See paragraphs 9 to 11.

Insurance - Topic 5004.1

Automobile insurance - Compulsory gov­ernment schemes - General - Territorial coverage limits - Luu was killed in a motor vehicle accident while on vacation in Viet Nam - His wife claimed benefits under a motor vehicle insurance policy issued in Ontario - The insurer denied benefits on the ground that s. 1.2 of the policy limited coverage to Canada and the United States - Luu's wife submitted that pursuant to s. 4.2 of the policy, when there was a difference between the policy and the Schedule, the Schedule prevailed - Therefore, the policy should apply in the instant case because paragraph (c) of the definition of an "insured person" included a resident of Ontario who was injured out­side Ontario - The Ontario Divisional Court held that the accident occurred beyond the territorial limits of the policy.

Practice - Topic 9153

Appeals - Stated case - When available - An insurer denied a claim under a motor vehicle insurance policy - The claimant took the matter to arbitration - The Direc­tor of Arbi­trations of the Ontario Insurance Com­mis­sion affirmed the insur­er's decision to deny the claim - The Director was informally asked to state a case following her decision but declined to do so on the basis that she was "functus" - On an appli­cation for judicial review, the Ontario Divisional Court observed that "[w]hile she had a discretion to refuse [to state a case], she may have been wrong in her reason for refusal. Stated cases are sometimes framed as questions as to whether the adjudicator was right or wrong in a decision that has been made or is proposed to be made." - See paragraph 8.

Cases Noticed:

Prasard v. Gan Canada Co. (1996), 14 O.T.C. 155 (Gen. Div.), not folld. [para. 7].

Statutes Noticed:

Insurance Act, R.S.O. 1990, c. I-8, sect. 20(2) [para. 9]; sect. 268(1) [para. 13]; sect. 279, sect. 280(1), sect. 283 [para. 6]; sect. 285 [para. 8].

Judicial Review Procedure Act, R.S.O. 1990, c. J-1, generally [para. 4].

Counsel:

Michael J. Gillen, for the applicant;

Lee Samis, for the respondent, insurer;

John T. Petrosoniak, for the Ontario Insur­ance Commission.

This application was heard on February 19, 1997, before Saunders, Keenan and Sharpe, JJ., of the Ontario Divisional Court.

The decision of the court was delivered by Saunders, J., with written reasons released on March 17, 1997.