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AUTOMBILE INSURANCE - Accident benefits

Friday, November 16, 2018 @ 9:43 AM  

Lexis Advance® Quicklaw®
Appeal by Elite Insurance from a decision finding its policy with the claimant was in effect at the time the claimant was struck by an uninsured vehicle. The appellant sent the claimant a letter by registered mail that indicated it would be unable to provide automobile insurance on the claimant’s vehicle as of September 2010 because of the claimant’s failure to install an Autograph device in his vehicle. The claimant contacted the appellant to discuss the issue but did not pursue further coverage with the appellant. He obtained coverage through another insurer but subsequently cancelled that policy. He was injured when struck by an uninsured vehicle in December 2011. The priority dispute over who was responsible for payment of the claimant’s statutory accident benefits was referred to arbitration. The arbitrator concluded the appellant’s notice of non-renewal was premature but the policy was not in force at the time of the accident. The appeal judge found s. 236(5) of the Insurance Act extended the existing contract until such time as a compliant notice of non-renewal was given, with the effect that the claimant remained insured under the appellant’s policy on the date of the accident.

HELD: Appeal allowed. There was no reason to interfere with the arbitrator’s reasonable conclusion that the notice of non-renewal was premature. The arbitrator’s conclusion that the policy was not in force at the time of the accident, supported by his interpretation of s. 236(5) of the Insurance Act and its application to the facts, was reasonable and ought not to have been overturned by the appeal judge. The arbitrator’s approach that s. 236(5) of the Act did not prevent the termination of the policy because of the parties’ mutual intention to bring the contract to an end was reasonable. Consideration of other circumstances that might have arisen and brought the policy to an end did not undermine the policy behind s. 236(5) to ensure continuous coverage. The fact the claimant obtained alternate coverage confirmed his intention to terminate the appellant’s policy. The appellant was not required to provide the claimant with statutory accident benefits.

Ontario (Finance) v. AXA Insurance (Canada), [2018] O.J. No. 5187, Ontario Court of Appeal, K.M. van Rensburg, G.I. Pardu and D. Paciocco JJ.A., October 9, 2018. Digest No. TLD-November122018008