Ontario (Minister of Finance) v. Pilot Insurance Co., 2012 ONCA 33

• Judge: MacPherson, LaForme and Epstein, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: October 20, 2011
• Jurisdiction: Ontario
• Citations: 2012 ONCA 33;(2012), 287 O.A.C. 123 (CA)

Ont. v. Pilot Ins. (2012), 287 O.A.C. 123 (CA)

MLB headnote and full text

Temp. Cite: [2012] O.A.C. TBEd. JA.016

In The Matter Of the Insurance Act, R.S.O. 1990, c. I.8, as amended, and O. Reg. 283/95 made thereunder;

And In The Matter Of the Motor Vehicle Accident Claims Act, R.S.O. 1990, c. M.41;

And In The Matter Of the Arbitration Act, 1991, S.O. 1991, c. 17;

And In The Matter Of an Arbitration.

Her Majesty the Queen in Right of Ontario as represented by the Minister of Finance (applicant/respondent in appeal) v. Pilot Insurance Company (respondent/appellant)

(C53694; 2012 ONCA 33)

Indexed As: Ontario (Minister of Finance) v. Pilot Insurance Co.

Ontario Court of Appeal

MacPherson, LaForme and Epstein, JJ.A.

January 19, 2012.

Summary:

An uninsured cyclist was injured by an unidentified motorist on November 30, 2006. He applied for statutory accident benefits to the Motor Vehicle Accident Claims Fund. The Fund attempted to determine who the insurer of the striking vehicle was. There was no police report. The Fund made attempts to obtain information about the 911 call respecting the accident that was allegedly made by the motorist. On September 8, 2008, the Fund received the 911 call records. The Fund determined who the motorist was. On October 10, 2008, the Fund put the motorist's insurer (Pilot) on notice that the Fund was disputing its obligation to pay benefits. The Fund initiated arbitration. An arbitrator held that the Fund had not met the notice requirements of s. 3 of Insurance Act Regulations (Ont.), Disputes Between Insurers Regulation (Reg. 283/95), so Pilot could not be held responsible for covering the costs of the cyclist's statutory accident benefits. The Fund appealed.

The Ontario Superior Court, in a decision reported at [2011] O.T.C. Uned. 5361, allowed the appeal, concluding that the notice requirements had been met. Pilot appealed.

The Ontario Court of Appeal allowed the appeal and restored the arbitrator's order that it was the responsibility of the Fund to pay the accident benefits.

Insurance - Topic 5053

Automobile insurance - Compulsory government schemes - Bodily injury and death benefits - Application for (incl. information required) - An uninsured cyclist was injured by an unidentified motorist - He applied for statutory accident benefits to the Motor Vehicle Accident Claims Fund - The Fund attempted to determine who the insurer of the striking vehicle was - There was no police report - The Fund eventually obtained information about the 911 call respecting the accident that was allegedly made by the motorist and was able to identify the motorist and her insurer (Pilot) - The Fund put Pilot on notice that the Fund was disputing its obligation to pay the accident benefits - An arbitrator held that the Fund had not met the notice requirements of s. 3 of Insurance Act Regulations (Ont.), Disputes Between Insurers Regulation (Reg. 283/95), so Pilot could not be held responsible for covering the costs of the cyclist's statutory accident benefits - The arbitrator held that the Fund had not been diligent in obtaining the 911 call information, it could have provided Pilot notice several months sooner and, it was, therefore, outside the 90 day deadline - An application judge allowed the Fund's appeal, concluding that the notice requirements had been met - The Ontario Court of Appeal allowed Pilot's appeal and restored the arbitrator's order that the Fund had to pay the accident benefits - The Fund was required to exercise reasonable diligence in pursuing the missing information - It was one step away from turning an incomplete application into a functionally adequate application, but delayed seeking the court order for the 911 call information for more than seven months - Given the short 90 day notice period established by s. 3, it would be contrary to the legislative intent to allow the Fund to sit on the application without adequate investigation for months at a time.

Insurance - Topic 5053

Automobile insurance - Compulsory government schemes - Bodily injury and death benefits - Application for (incl. information required) - Section 2(1) of the Insurance Act Regulations (Ont.), Disputes Between Insurers Regulation (Reg. 283/95), provided that the first insurer to receive a completed application for benefits was responsible for paying statutory accident benefits pending the resolution of any dispute as to which insurer was required to pay benefits - Section 3(1) gave an insurer 90 days from receipt of a completed application to dispute its obligation to pay statutory accident benefits - The 90-day notice period in s. 3(1) was subject to extension by s. 3(2) - The Ontario Court of Appeal stated that an application for benefits that was not genuinely complete could nevertheless constitute a "completed application" if it was functionally adequate for its legislated purposed - The court discussed how to determine when an application was functionally complete - See paragraphs 46 to 55.

Cases Noticed:

ING Insurance Co. of Canada v. TD Insurance Meloche Monnex (2010), 266 O.A.C. 377; 103 O.R.(3d) 270; 2010 ONCA 559, refd to. [para. 12].

Ontario (Minister of Finance) v. Lombard Insurance Co. of Canada, [2010] O.T.C. Uned. 1770; 100 O.R.(3d) 51; 2010 ONSC 1770, refd to. [para. 12, footnote 3].

ING Insurance Co. of Canada v. State Farm Insurance Companies, [2009] O.T.C. Uned. K52; 97 O.R.(3d) 291 (Sup. Ct.), refd to. [para. 12, footnote 3].

Liberty Mutual Insurance Co. v. Commerce Insurance Co., [2001] O.T.C. 978; 36 C.C.L.I.(3d) 269 (Sup. Ct.), refd to. [para. 47].

Statutes Noticed:

Disputes Between Insurers Regulation - see Insurance Act Regulations (Ont.).

Insurance Act Regulations (Ont.), Disputes Between Insurers Regulation, Reg. 283/95, sect. 2(1) [para. 8]; sect. 3(1) [para. 9]; sect. 3(2) [para. 10].

Counsel:

Todd J. McCarthy and Stephanie Zwicker Slavens, for the appellant;

John Friendly, for the respondent.

This appeal was heard on October 20, 2011, before MacPherson, LaForme and Epstein, JJ.A., of the Ontario Court of Appeal. LaForme, J.A., released the following decision for the court on January 19, 2012.