Jason Frost

In Mansuri v. Travelers (LAT 20-001365, September 28, 2022), Vice-Chair McGee confirms there is no conflict for an adjuster and their counsel to represent an insurer for both an accident benefits claim and a priority dispute as to which insurer is the priority insurer. 

Certainty is finally here: the Court of Appeal confirms that an optional benefits insurer is the priority insurer.

In Intact v. Economical, Kadey Schultz successfully argued before the Superior Court on appeal that Economical was the priority insurer permitted to claim loss transfer.

In Arconti v. Smith, Justice Myers confirms an Examination For Discovery will be completed via videoconference, instead of waiting for physical distancing requirements to be relaxed.

On February 28, 2020, the Court of Appeal granted leave to appeal in the priority dispute optional benefits case of Chubb v. Continental, 2019 ONSC 3773 (CanLII).

Note: This Blog was prepared by Robbie Brar, articlng student at Schultz Frost LLP

On January 25, 2019, the Ontario Superior Court of Justice released its decision in Seetaram v. Allstate Insurance Company of Canada, 2019 ONSC 683. In his decision, Justice Glustein ruled that the applicant’s policy of automobile insurance was void due to their failure to advise the insurer of a change in risk:

“Had Avinash been disclosed to Allstate as a licensed driver living in his parents’ household when the Policy was renewed on April 17, 2013, Allstate would not have agreed to insure the Applicants at the stated premium of $2,112. Instead, the annual premium would have almost doubled to $3,954, since Avinash was in a high-risk insurance category as a 17 year old male with a G2 license.”

Most notably, Justice Glustein found that the insurer did not have a duty to explain to the insured what constitutes a material change in risk, responding to the fact that the Applicants had interpreted the policy’s “full coverage” description to include all licensed drivers within the household.

This decision can be contrasted with an earlier decision in DeKoning v. Vector Insurance Network (Ontario) Limited, 2009 CanLII 43644 (ONSC), where the named insured did not fail in her duty to disclose a material change in the risk by adding an under-25 novice male driver in a high-risk insurance category to the policy.

The DeKoning case raised two issues: the duty of an insured to report to the insurer of a high-risk category driver who is listed on the Policy, and whether, and to what extent, the insurer is obligated in law to inquire into matters it regards as material to the risk prior to a renewal of coverage.

The insurer had elected to accept risk for newly appointed G2 driver for the following year, despite being well aware that the driver was added by it to the coverage in the year prior, while in G1 standing. Upon renewal, the insurer asked no question about his driving record, nor did it obtain low-cost information (Motor Vehicle Record) after he had been legally driving unaccompanied for the first time.

In DeKoning, the Court also found that, in the absence of inquiry by the insurer of the driving record of the added driver, and knowing that they are within a high-risk category, the driving record (MVR) was not material to the decision of the insurer to enter the contract of insurance by way of renewal. Accordingly, since the insurer saw no materiality to accepting the risk prior to renewing the applicant’s policy, the insured was not obligated to voluntarily disclose the material change in risk to the insurer.

The Court in Seetaram concluded that both s. 233(1)(a)(ii) of the Insurance Act and the Statutory Conditions were breached when the Applicant failed to disclose upon the renewal of the Policy that a 17-year-old, G2-licensed driver was living in the insured’s household.

Seetaram affirms an insured's positive obligation to notify the insurer of any change that a reasonable insurer would consider relevant to assess the risk.

In Abyan and Sovereign (FSCO Appeal P17-00068, October 5, 2018), Delegate Evans quashed the Arbitrator's decision and remitted Mr. Abyan's non-MIG claims back to arbitration (likely with a different FSCO Arbitrator as ADR Chambers' contract with FSCO has ended and the original hearing arbitrator is no longer with ADR Chambers).

The constitutional assessment of the MIG was completed in a "factual vacuum". Before concluding that it was discriminatory to limit those suffering from chronic pain to the MIG limit of $3,500, the Arbitrator should have determined whether the claimant suffered from chronic pain and whether the chronic pain was related sequelae to predominantly minor soft tissue injuries.

In Zheng, Cai v. Aviva Insurance Company of Canada, 2018 ONSC 5707, the Divisional Court reverses the unsettling position of FSCO and the LAT that s. 38(8) non-compliance results in the entire claim being taken out of the MIG.

In the recent FSCO decision of Aydemir and Aviva (FSCO A14-003170), Jason Frost successfully obtained a dismissal of claims for Catastrophic Impairment, Non-Earner Benefits, 24 hour Attendant Care and related Treatment Plans.

The related legislation has yet to be implemented, but the Ontario Government's Press Release suggests:

1. many assessments for non-serious claims will be eliminated;
2. new 'standard treatment protocols' will be introduced for "one size fits all' treatment for certain impairments or combinations of impairments;
3. cash payouts or settlements are going to be restricted or eliminated; and
4. fraudulent claims and systemic fraud will be more aggressively prosecuted by a new "Serious Fraud Office".

In an eagerly anticipated Superior Court decision, Justice Belobaba dismissed a personal injury lawyer’s constitutional challenge to sections 267.5(1) and 280 of the Insurance Act.

This Priority Arbitration decision confirms student loans and lines of credit are a neutral factor when assessing financial dependency.