Category: Exclusions

Harsanyi v. The Co-operators General Company (20-001245)

A preliminary issues hearing was held to determine whether the claimant’s claim for IRBs was barred pursuant to s. 31(1)(a)(ii) of the SABS, which provides that an insurer is not required to pay an IRB if the claimant was driving an automobile without a valid driver’s licence. The claimant asserted that he was unaware at the time of the accident that his licence had been suspended for failure to pay a fine. The claimant submitted that the LAT should allow a defence of due diligence and grant relief against penalties and forfeiture under s. 98 of the Courts of Justice Act. Adjudicator Farlam held that the wording of s. 31(1)(a)(ii) does not provide for a defence of due diligence or any other defence or explanation including the driver’s knowledge that his licence was not valid. Adjudicator Farlam declined to impose a “knew or ought reasonably to have known” requirement upon s. 31(1)(a)(ii) given the clear, unambiguous, wording of the section, and given that a knowledge requirement is expressly provided for elsewhere in s. 31(1)(a). Adjudicator Farlam held that the LAT cannot grant relief under s. 98 of the Court of Justice Act. The claim for IRBs was barred.

J.J. v. Jevco Insurance (18-012155)

The insurer sought reconsideration of the Tribunal’s decision that the claimant’s newly purchased motorcycle was insured under the policy as a “newly acquired automobile”. The insurer’s arguments were primarily based on failure to follow two Superior Court decisions. Vice Chair Flude rejected the reconsideration, holding that he did not make an error that would change the result. He held that his initial decision did consider the relevant case law, but came to a different result based on factual distinctions.

J.J. v. Jevco Insurance (18-012155)

The insurer sought reconsideration of the Tribunal’s decision that the claimant’s newly purchased motorcycle was insured under the policy as a “newly acquired automobile”. The insurer’s arguments were primarily based on failure to follow two Superior Court decisions. Vice Chair Flude rejected the reconsideration, holding that he did not make an error that would change the result. He held that his initial decision did consider the relevant case law, but came to a different result based on factual distinctions.

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

The insurer denied the claim for IRBs pursuant to section 31(1)(b), arguing that the claimant had made a material misrepresentation that induced the insurer to enter into the contract. In particular, the claimant allegedly misrepresented her address for the purpose of obtaining a lower premium. As a preliminary issue, the claimant sought to exclude audio recordings between herself and her broker in which she was arranging to buy insurance. The claimant argued that the recordings were made without her consent and violated the Freedom of Information and Protection of Privacy Act. Adjudicator Johal permitted the audio recordings to be considered, noting that the Statutory Power Procedures Act allowed the Tribunal to consider any evidence unless it was inadmissible by reason of privilege. Further, the audio recordings were highly relevant to the issue in dispute. Regarding the section 31 exclusion, Adjudicator Johal concluded that the claimant did make a material misrepresentation and that the insurer was therefore not required to pay IRBs. The claimant did not make an honest mistake regarding her place of residence and knew the importance of providing her correct address to the insurance broker. Adjudicator Johal rejected the claimant’s arguments that waiver or estoppel should bar the claimant from relying on section 31 because the insurer did subsequently increase her premiums after learning of the misrepresentation. Adjudicator Johal held that the Tribunal could not exercise equitable remedies, but also noted that the claimant failed to prove the necessary factual steps to rely on either remedy.

V.A.D. v. Intact Insurance Company (19-003332)

The claimant sought entitlement to IRBs. The insurer argued that the section 31(b) exclusion applied because the claimant intentionally failed to notify the insurer of a material change in risk. The claimant had moved from Quebec to Ontario but did not notify the insurer; the insurer argued that this resulted in the claimant lower premiums than she otherwise would have. Adjudicator Parish accepted the insurer’s position and held that the exclusion applied. The claimant had a valid driver’s licence at the time of the accident and an Ontario address, while her vehicle had Quebec licence plates and was registered in Quebec. There was also evidence that the claimant was working in Ontario as of the date of loss. Finally, the insurer led evidence that the claimant’s premiums would have been higher if the claimant had disclosed her Ontario residency, making the non-disclosure material. Adjudicator Parish held that the Tribunal did not have jurisdiction to grant relief from forfeiture.

Applicant v. Motor Vehicle Accident Claims Fund (17-001681)

The claimant suffered a catastrophic impairment following a motorcycle accident which caused a traumatic brain injury. He sought entitlement to NEBs, ACBs, a rehab support worker, home modifications, and a special award. The Fund denied his entitlement to the claimed benefits. It also argued that the claimant did not have a valid licence and was not entitled to NEBs, and that no attendant care services had been incurred. Regarding the exclusion, Adjudicator Hines concluded that it did not apply because the claimant did have a valid driver’s licence (G1) even though it was not the proper licence for operating a motorcycle. She awarded NEBs, concluding that the claimant’s life had changed significantly following the accident. Even though the claimant was receiving ODSP for various disabilities before the accident, the brain injury resulted in significant changes in the claimant’s independent functionality. ACBs were also awarded at the rate of $6,000 per month. Adjudicator Hines concluded that 24 hour care was reasonable based on the claimant’s brain injury and the need for constant supervision. She also held the ACBs to be deemed incurred up to the date of the hearing because the Fund had failed to consider its IEs with a critical eye to ensure that they were medically sound and unbiased. Rehab support worker services were awarded because it was reasonable to teach the claimant skills and strategies to reintegrate into the community. Home modifications were not awarded because the majority of recommended modifications were for someone with severe physical disability rather than a brain injury. Finally, Adjudicator Hines granted a special award in relation to ACBs and the rehab support worker. She concluded that the denials were unreasonable and that the Fund did not critically consider its own IE reports. The Fund also failed to follow the recommendations of its own independent adjustors.

M.F. v. Belair Direct (16-002057

The insurer brought a preliminary issue motion asserting the claimant was not entitled to income replacement since the claimant knowingly drove without a license, pursuant to section 31 of the SABS. Adjudicator Sewrattan reviewed Section 2.2.1 of OAP 1. It was noted that while a broad interpretation favouring the insured was asserted, not even a broad interpretation could interpret “delivery” as meaning only taking physical possession. Instead, Adjudicator Sewrattan found the claimant had constructive possession on the date of purchase. The claimant ought to have known he was operating without insurance. Accordingly, the claimant was barred from obtaining income replacement benefits, under section 31.

B.C. v. Economical Mutual Insurance Company (16-000024)

The accident occurred while the claimant was operating a motor vehicle with an expired licence. The insurer brought a motion that the claim for IRBs must be dismissed due to the exclusion at section 31. The claimant argued that he was not aware of his licencing having expired. Vice Chair Flude agreed with the insurer that there was no mental element required for the particular exclusion at section 31(1)(a)(ii) to apply.