DSF Lawyers Successful at Ontario Court of Appeal

November 30th, 2012 by Meliha Waddell

George O. Frank, and Maya Krishnaratne were counsel for the successful insurer in a recently released decision of the Ontario Court of Appeal relating to payment of Statutory Accident Benefits. The case involved a dispute between two insurers as to who was responsible for paying no-fault accident benefits to an injured “owner/operator” of a commercial delivery vehicle of which the owner/operator was an occupant at the time of the accident.

Pursuant to the Owner Operator agreement between the owner/operator and the transport company, the owner/operator provided a truck and driver to the transport company to deliver cargo on behalf of the transport company’s customers. Insurance coverage was placed on the truck pursuant to a “fleet policy” arranged by the transport company. Although the truck in question was listed on the fleet policy, the owner/operator was not named as an insured on the fleet policy.

The owner/operator owned a personal use vehicle which was insured pursuant to a policy which named the owner/operator as insured. The insurer on the fleet policy took the position that the injured owner/operator had to claim accident benefits from the insurer of his personal vehicle.

The court’s decision turned on the interpretation of section 66 of the Statutory Accident Benefits Schedule. Section 66 provides that where a vehicle is provided for an individual’s regular use by a “corporation, unincorporated association, partnership, sole proprietorship or other entity”, the individual will be deemed to be a named insured on the insurance policy covering that vehicle, even if not named as an insured on the policy.

Similar situations had been addressed by several courts and arbitrators in a lengthy string of decisions. In those cases, the arbitrators and courts focused on the question whether the truck was provided for the regular use of the owner/operator by the transport company. In the majority of those cases, the answer was no – the truck was provided by the owner/operator for the transport company, not the other way around. The Court of Appeal held that these previous decisions had addressed the wrong question. The question should have been whether the owner/operator could provide the truck to himself for his own regular use. The Court held that the wording of section 66 of the Schedule was sufficiently broad to include such a situation, and that the question should be answered affirmatively. The truck was provided for the regular use of the injured owner/operator, and accordingly the owner/operator was deemed to be a named insured on the fleet policy covering the truck. The insurer on the fleet policy had to respond to the owner/operator’s claim for Statutory Accident Benefits, and the insurer of the personal vehicle did not.

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