The issues on this appeal arise out of a priority dispute where the SABS claimant had basic mandatory SABS coverage under one policy and both basic mandatory and optional enhanced SABS coverage under another policy.
Continental denied both that its policy provided optional enhanced SABS coverage and that the claimant had coverage under its policy.
At arbitration, the arbitrator held that absent misinformation provided by Continental, the claimant would have elected to receive SABS from Continental, the optional enhanced SABS insurer, and the claimant was entitled to re-elect in the circumstances.
On appeal to the Superior Court, it was held that while Continental was the priority insurer, Chubb was liable to repay "mandatory" benefits and adjusting expenses back to Continental. Notably, this was not a ground of appeal or an issue raised by the parties to the appeal.
The Court of Appeal corrected this error and provided certainty to insurers in Ontario: if an insured person has coverage for optional benefits, that insurer is the priority insurer, responsible for paying both mandatory and optional benefits.
This decision is also important as it confirms the rarely relied upon jurisdiction of an arbitrator to provide equitable relief under s. 31 of the Arbitration Act, 1991. It also assists with multiple similar proceedings currently at the arbitral stage.
You can read the entire decision here: https://www.ontariocourts.ca/decisions/2022/2022ONCA0188.pdf
