Prasad v. Gan Canada Insurance Co., (1997) 100 O.A.C. 63 (CA)

• Court: Court of Appeal (Ontario)
• Case Date: May 05, 1997
• Jurisdiction: Ontario
• Citations: (1997), 100 O.A.C. 63 (CA)

Prasad v. Gan Can. Ins. Co. (1997), 100 O.A.C. 63 (CA)

MLB headnote and full text

Priya Prasad (plaintiff/respondent) v. Gan Canada Insurance Company (defendant/appellant)

(Court File No. C25640)

Indexed As: Prasad v. Gan Canada Insurance Co.

Ontario Court of Appeal

McMurtry, C.J.O., McKinlay, J.A., and Southey, J.(ad hoc)

May 5, 1997.

Summary:

Prasad was injured in a motor scooter accident in Mexico and sued her insurer to enforce a claim for accident benefits under her automobile insurance policy. The policy, approved by the Commissioner of Insurance, included territorial coverage limitations. However, s. 268(1) of the Insurance Act required that every policy provide the no fault benefits set out in the Statutory Acci­dent Benefits Schedule. The Schedule had no territorial limits. Con­versely, it provided for benefits for extra-territorial accidents. Fur­ther, the policy provided that the Schedule prevailed in the event of a conflict between the policy and the Schedule. The defendant sought summary judgment to dismiss the action or, alternatively, determination of an issue before trial under rule 21.

The Ontario Court (General Division), in a judgment reported 14 O.T.C. 155, dis­missed the motion and held that the Sched­ule pre­vailed. Prasad was covered under the policy. The insurer appealed.

The Ontario Court of Appeal dismissed the appeal.

Insurance - Topic 1041

The insurance contract - Official approval of policy terms - General - Prasad sought statutory accident benefits under her auto­mobile insurance policy for injuries sus­tained in Mexico - The insurer invoked the insurance policy's territorial coverage limitations - The insurer argued that the limitation was valid where the policy form was approved by the Commissioner of Insurance under s. 227(2) of the Insurance Act - Section 227(2) provided that the Com­missioner could approve a policy form which was inconsistent with the Act - The Ontario Court of Appeal rejected the argu­ment - There was no evidence that the Commis­sioner approved an inconsistent policy form - Furthermore, the effect of s. 227(2) was not to validate any policy form approved by the Commissioner, regardless of the extent to which it departed from the Act or the reasons for such departure - See paragraphs 12 and 13.

Insurance - Topic 5004.1

Automobile Insurance - Compulsory gov­ernment schemes - General - Territorial coverage limits - Prasad sustained per­sonal injuries in a motor scooter accident in Mexico and sought statutory accident benefits (s. 268(1), Insurance Act) under her automobile insurance policy - The insurer sought summary judgment dismiss­ing the action, alleging a territorial limita­tion on coverage - A trial judge dismissed the motion - The insurer appealed, invok­ing s. 243 of the Act and a territorial limitation clause inserted in the insurance contract - The Ontario Court of Appeal dismissed the appeal - There was no territorial limi­tation on coverage - Section 243 did not apply and the insurance con­tract could not reduce coverage under the Benefits Sched­ule - That coverage, re­quired by statute, could only be limited by statute - See paragraphs 4 to 11.

Cases Noticed:

Luu v. Zurich Insurance Co. (1997), 98 O.A.C. 344 (Div. Ct.), refd to. [para. 11].

Statutes Noticed:

Insurance Act, R.S.O. 1990, c. I-8, sect. 227(2) [para. 12]; sect. 243 [para. 4]; sect. 268(1) [para. 6].

Insurance Act Regulations (Ont.), Statutory Accidents Benefits Schedule, Reg. 776/93, generally [para. 7].

Statutory Accident Benefits Schedule - see Insurance Act Regulations (Ont.).

Counsel:

Harry Brown, for the appellant/defendant;

R. Shawn Stringer, for the respon­dent/plaintiff.

This appeal was heard on April 25, 1997, before McMurtry, C.J.O., McKinlay, J.A., and Southey, J.(ad hoc), of the Ontario Court of Appeal.

The decision of the Court of Appeal was delivered by Southey, J.(ad hoc), and released on May 5, 1997.