Category: Exclusions

Akinyimide v. Economical Mutual Insurance Company (2023 ONSC 5272)

The claimant appealed the Tribunal’s decision that section 31 barred her claim for IRBs. The claimant reported to her insurer that she lived in Windsor, rather than Toronto, when obtaining her auto insurance policy. The misrepresentation resulted in lower premiums. She was involved in an accident in October 2017. The insurer learned of the misrepresentation in December 2017, and charged the claimant back-premiums from the date she moved to Toronto, which the claimant paid. The claimant argued that the insurer waived its right to rely on section 31 exclusions once she paid the premiums. The Tribunal held that section 31 barred the claim, and held that it had no jurisdiction to apply equitable remedies. On appeal, the Court accepted that the Tribunal correctly applied section 31 of the SABS, but erred in failing to consider section 131 of the Insurance Act, which can excuse an insured from failing to comply with proper reporting in certain circumstances. The Court held that consideration of section 131 of the Insurance Act was not an equitable remedy, and that the Tribunal has jurisdiction to consider the Insurance Act as a whole, so long as its decisions are “in accordance with the SABS.” The matter was returned to the Tribunal to consider whether section 131 allows the claimant to receive IRBs despite the material misrepresentation.

Sexsmith v Certas Home and Auto Insurance Company (21-000943)

The claimant disputed the insurers decision that he was precluded from receiving specified benefits pursuant to s. 31 of the SABS. The claimant’s uninsured motorcycle, which was involved in the accident, was not listed on any policy despite the claimant owning multiple vehicles and holding separate policies. The Tribunal found that the claimant failed to notify the insurer of the motorcycle purchase within the required timeframe was, therefore, not compliant with the insurance policy. Despite the claimant’s arguments citing specific policy conditions and previous cases, the Tribunal determined that the claimant did not meet special conditions for coverage for unnamed vehicles in the policy since the claimant was found to be the owner of the motorcycle. The Tribunal determined that the claimant was precluded from claiming specified benefits because he ought to have been aware of his insurance obligations due to his job as a mechanic. The Tribunal dismissed the appeal.

Del Grosso v. Intact Insurance Company (20-013318)

The claimant was involved in an accident in Michigan and elected to receive Michigan no-fault benefits, including Work Loss Benefits (the Michigan equivalent of IRBs). The insurer later learned that the claimant misrepresented his driving history and insurance history when applying for his auto policy. The insurer terminated the claimant’s entitlement to Work Loss Benefits and requested repayment of over $72,000 based on the section 31(1)(b) exclusion. The claimant argued that Michigan benefits were not equivalent to IRBs, and were not excluded and argued that the Tribunal did not have jurisdiction to consider his entitlement to Michigan no-fault benefits. Adjudicator Norris found that he had jurisdiction to consider the matter as the Michigan level benefits were being paid under the SABS. He agreed with the insurer’s position, concluding that the claimant made material misrepresentations in his application for insurance (failing to report an earlier accident and termination of an auto policy), that section 31 (1)(b) barred entitlement to IRBs, and that Work Loss Benefits were equivalent to IRBs. Adjudicator Norris ordered the claimant to repay all Work Loss Benefits received.

Nagalingam v. Economical Insurance Company (20-006884)

The claimant sought entitlement to pre-104 week and post-104 week IRBs. The insurer denied the claimant’s entitlement and argued that section 33 barred the claim as the claimant failed to provide information relating to his place of residence, which was relevant to a potential section 31 exclusion. Adjudicator Maleki-Yazdi found that the claimant did not meet the medical test for IRBs during either the pre-104 week or post-104 week period. Even if the claimant had met either test, the adjudicator held that it was reasonable for the insurer to request information relating to the claimant’s place of residence as the policy was issued to an address other than the address on the OCF-1 and OCF-3. The claimant’s refusal to provide the information was not reasonable. Additionally, the claimant failed to comply with section 33 requests for medical records, despite the insurer agreeing to pay for the cost of obtaining the requested records. The claimant argued that he had not received the section 33 requests. The adjudicator rejected the claimant’s explanation for non-compliance, as the letters were also sent to his counsel, and therefore deemed to have been received by him.

Vaillancourt v. Intact Insurance Company (19-009063)

The claimant was injured in an accident and sought benefits including IRBs. The insurer denied the claimant’s IRBs based on the claimant not having proper insurance in place to access those benefits relying on the s. 31(1)(a)(i) exclusion for operation of an uninsured vehicle. Adjudicator Chakravarti concluded that the s. 31(1)(a)(i) exclusion did not apply. Adjudicator Chakravarti noted that s. 31(1)(a)(i) requires that the driver knew or ought reasonably to have known that he or she was operating an automobile while not insured. The onus was on the insurer to show that the claimant knew or ought to reasonably have known that he was operating a motorcycle without insurance when the accident occurred. The facts of this case were unique. The claimant had previously insured his motorcycle along with other vehicles with the insurer. He then contacted the insurer to remove the motorcycle from the policy as he put the motorcycle in storage for the winter. The broker advised the claimant he no longer had “road coverage” for the motorcycle. The claimant was never advised that he did not have liability coverage nor the consequences of removing liability coverage from his policy. The claimant testified that he understood the removal of “road coverage” to mean property damage. Adjudicator Chakravarti noted that the evidence from the broker was unconvincing as the broker did not have specific memory of discussions with the claimant or changes to the policy. The claimant also relied on email communications with the broker to support his claim. Adjudicator Chakravarti also noted that the adjuster who attended on behalf of the insurer confirmed that it was possible to remove collision coverage from the motorcycle and leave the liability coverage in place and so it was reasonable for the claimant to believe that he altered his coverage so that only collision coverage was affected. Adjudicator Chakravarti also held that the certificates of insurance provided to the claimant for the motorcycle and his other vehicles were unclear and confusing and carried little weight in showing what the claimant ought to have reasonably known that liability insurance was removed from his motorcycle. Finally, Adjudicator Chakravarti noted the claimant was a paramedic and a dispatcher with helicopter emergency ambulances and he testified that he knew the types of serious and life threatening injuries that are sustained in accident and that he would not drive without insurance given the seriousness of these types of injuries and because it is a criminal offence. Ultimately, Adjudicator Chakravarti accepted the claimant’s evidence and found the insurer did not satisfy its burden of proof.

Phillip v. Intact Insurance Company (20-000674)

The claimant was injured in an accident and sought benefits including IRBs from the insurer. The insurer denied the claimant’s IRBs relying on the s. 31(1) exclusion based on the claimant failing to notify the insurer of his change of address from Brantford to Toronto and therefore, intentionally failing to disclose a material change in risk. Adjudicator Grieves agreed with the insurer that the claimant intentionally failed to notify the insurer that he moved from Brantford to Toronto and therefore, s. 31(1)(b) applied. At the hearing, the insurer played a telephone call that occurred after the accident between the claimant and the insurer. During that telephone call, the claimant explained that he had moved to Toronto before the accident. The insurance representative advised the claimant that because of the move to Toronto, his insurance premiums would increase. The claimant then told the representative he would move back to Brantford. However, based on evidence from the hearing, his lease had expired at his Brantford residence and he admitted during the hearing that he had no intention of moving back and was frustrated that the insurer wanted to charge him higher premiums. Adjudicator Grieves held that the claimant intentionally failed to tell the insurer that he moved to Toronto, which occurred approximately four months prior to the accident. Therefore, the insurer was not required to pay the claimant an IRB pursuant to s. 31(1)(b).

Johnson v. Jevco (2021 ONSC 4870)

The insurer appealed the Tribunal’s reconsideration decision which concluded that the motorcycle operated by the claimant was insured under its policy as a “”newly acquired automobile””. The claimant had purchased the motorcycle 11 days before the accident, but did not notify the insurer until one month after the purchase. The “”newly acquired automobile”” provision of the OAP 1 provides coverage to newly acquired automobiles for 14 days, provided the insurer is notified of the purchase and the policyholder pays any additional premiums. The insurer argued that the motorcycle was not insured under its policy because it was not notified within 14 days of the purchase, and because it did not underwrite motorcycle insurance generally. The Court dismissed the appeal and affirmed the Tribunal’s reconsideration. The Court held that the “”newly acquired automobile”” required the insurer to insure the motorcycle regardless of the insurer’s general approach to not insuring motorcycles, because the OAP 1 was a standard form contract that the insurer could not unilaterally opt out of. The Court also held that the claimant did not need to notify the insurer of the purchase within 14 days, and that the 14 days referred to a “”grace period”” for which coverage was provided to the motorcycle regardless of notification or payment of any premium. The expectation of additional premium being required was for continued insurance after the 14 days. The premium being paid by the claimant already provided the 14 day grace period to him automatically. Only once the 14 day grace period elapsed was the motorcycle no longer covered by the policy, as the claimant had not notified the insurer of the purchase until later. The insurer was therefore not allowed to rely upon the section 31 exclusions relating to the claimant’s operation of an uninsured automobile, as the motorcycle was in fact insured.

Sadni v. Allstate Canada (20-000670)

The claimant applied for accident benefits following a motorcycle accident. The insurer argued that the motorcycle was not insured at the time of the accident, and that section 31 applied to bar entitlement to IRBs. Adjudicator Boyce agreed with the insurer that the motorcycle was not insured, and that the claimant was not entitled to claim IRBs. The claimant failed to provide documentation he relied upon in basing his belief that the motorcycle was insured. The claimant had an automobile policy insuring a Porsche, and the claimant new the process for obtaining insurance on a vehicle. He was also aware of the premiums he was paying solely for the Porsche. Adjudicator Boyce rejected the claimant’s argument that he believed his motorcycle was automatically included on the policy insuring the Porsche, and noted that the premium increase for the motorcycle would have been substantial and the claimant would have known of the increased premium or additional premium withdrawals if the motorcycle had been insured. Adjudicator Boyce also found it unreasonable for the claimant not to follow up with the motorcycle vendor regarding the pink slip and purported insurance that the vendor had on the motorcycle when it was sold to the claimant.

Hines v. TD Insurance Meloche Monnex (19-006324)

The claimant disputed entitlement to IRBs. The insurer sought repayment of IRBs paid to date due to the exclusion barring IRB entitlement when a person is operating an uninsured vehicle (section 31(1)(a)(i)). Adjudicator Farlam dismissed the IRB claim and ordered the claimant to repay all IRBs due to the exclusion. She held that the claimant new or ought to have known that his vehicle was uninsured. He placed insurance through a “broker” by email after meeting the “broker” at a gas station. The claimant paid the “broker” in cash, and he received no payment or policy documentation from the “broker”. He also never received an invoice for insurance. Additionally, the text messages with the “broker” contained blatant irregularities, including misspelling “insurance” and “Ontario”. Adjudicator Farlam found the claimant’s evidence that he believed he had purchased valid insurance to be non-credible. The claimant was employed and high school educated, and had previously placed legitimate insurance on a vehicle.

B.A. v. Economical Mutual Insurance Company (18-005968)

The claimant applied for reconsideration of the Tribunal’s decision that section 31 barred his claim for IRBs because of a material misrepresentation relating to her address, which resulted in lower insurance premiums. Vice Chair Johal dismissed the reconsideration request. The Vice Chair held that the Tribunal did not err in allowing evidence of the phone call where the claimant purchased insurance to be admitted, and rejected the argument that the claimant was not permitted to make submissions regarding the issue. The Vice Chair also held that the SABS did not give the Tribunal power to apply equitable remedies such as waiver or estoppel.