IN THE MATTER OF THE INSURANCE ACT, R.S.O. 1990, c. 1.8, AS AMENDED AND REGULATION 283/95 MADE UNDER THE INSURANCE ACT

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1 IN THE MATTER OF THE INSURANCE ACT, R.S.O. 1990, c. 1.8, AS AMENDED AND REGULATION 283/95 MADE UNDER THE INSURANCE ACT AND IN THE MATTER OF THE ARBITRATION ACT S.O. 1991, c. 17 AND IN THE MATTER OF AN ARBITRATION BETWEEN: THE DOMINION OF CANADA GENERAL INSURANCE COMPANY - and Applicant THE CO-OPERATORS GENERAL INSURANCE COMPANY Respondent Counsel for the Applicant: D'Arcy McGoey, Esq. Counsel for the Respondent: Ms. Philippa G. Samworth A W A R D This Arbitration arose out of a dispute between The Dominion of Canada General Insurance Company (Dominion) and Co-operators General Insurance Company (Cooperators) as to which insurer is required to pay Statutory Accident Benefits to John Berlec under the Statutory Accident Benefits Schedule - Accidents on or after November 1, 1996 (Bill 59 SABS) by reason of a motor vehicle accident which occurred on March 20, Pending the resolution of the dispute, Dominion has agreed to provide benefits to Mr. Berlec.

2 - 2 As the Insurers were unable to agree as to which Insurer is required to pay the benefits, the dispute must be resolved through an Arbitration under the Arbitration Act, 1991, as required by Ontario Regulation 283/95. AGREED STATEMENT OF FACTS Attached hereto as Schedule "A" is a copy of the Statement of Facts agreed to by both Insurers. The important facts may be summarized as follows-. (a) The accident which was the subject of the claim for Statutory Accident Benefits occurred on March 20, 1997; (b) At the time of the accident, John Berlec was operating a 1997 Ford Econoline Van owned by his employer, Global Travel Apartments Inc. (GTAI). The vehicle was insured by Dominion. The vehicle was made available to Mr. Berlec for his job-related tasks. Mr. Berlec's duties included maintenance work on fixtures, appliances and equipment In various apartment buildings owned by GTAI. In order to attend to those duties, he would drive to and from the various properties owned by GTAI to carry out the repairs. Mr. Berlec had possession of the van 24 hours per day, seven days weekly. According to the Agreed Statement of Facts, he was restricted in his use of the van to work hours and work-related activities; (c) At the time of the accident, Mr. Berlec's spouse owned a 1996 Plymouth Voyager, insured by Co-operators. Mr. Berlec's spouse was the named insured under the contract of insurance with Co-operators. EXAMINATIONS FOR DISCOVERY OF JOHN BERLEC AND THE GUEST SERVICE MANAGER OF GTAI When examined for discovery, Mr. Berlec gave evidence that he was the only driver

3 - 3 of the GTAI van. He confirmed that he was advised that the van was to be used for maintenance only. However, on the examination of the representative of GTAI, that representative gave evidence that there was no prohibition on Mr. Berlec using, the vehicle for personal purposes. The representative confirmed that Mr. Berlec had a set of keys to the vehicle and that he was the sole user of the vehicle. ISSUE OF REGULAR USE The first issue for determination is whether the GTAI van was being made available by GTAI to John Berlec for his regular use. It was argued on behalf of Dominion that a vehicle furnished for business use only, was not being made available for "regular use". In support of its position, Dominion has made reference to three cases: (a) The issue and the policy provisions referred to in Yamada v. Canadian General Insurance Company, (1982) I.L.R are different from the issue and the policy provisions in the subject case. In my view, the Yamada case is not helpful in determining the issue of "regular use" in this case; (b) In the case of Laurie v. Federated (Mutual) Insurance Co. (1991), 2 C.C.L.I. (2d) 283, Mr. Justice Herold determined that a garage truck was not made available for the "regular use" of a particular employee. On the facts in that case, the particular vehicle was made available to the Plaintiff and all other trusted employees of the garage for general business purposes and, with permission, for limited personal use. Mr. Justice Herold appeared to conclude that there had to be some general right to use the vehicle rather than use with permission, in order to constitute " regular use" - Again, I do not find the Laurie case particularly helpful in the subject case. In the

4 - 4 subject case, the vehicle was made available to Mr. Berlec for his sole use on a 24 hour basis, seven days weekly, notwithstanding that the use of the vehicle was to be restricted to maintenance work. The facts in the subject case are dissimilar to the facts in the Laurie case; (c) The case of Maddalena v. Crouse (1996), 28 O.R. (3d) 474 deals with an issue as to whether the insurer of an employer's vehicle or the insurer of the personal vehicle of the employee should respond to a claim by the employee under Uninsured Motorist Coverage. That is not an issue in the subject case, and I do not find the comments made in the Maddalena case to be helpful in determining the regular use issue in this case. Counsel for Co-operators has made reference to three cases when addressing the regular use" issue: (a) In Sittler v. Canadian General Insurance Co., (1993) O.I.C.D. No. 72, Arbitrator Makepeace determined that the provision of a cab to be driven 12 hours daily, six days weekly, constituted "regular use"; (b) In the case of Fiscor v. Atlantic County Board of Chosen Freeholders and Maryland Casualty Insurance Company, No. A T3, the Appellate Division of the Superior Court of New Jersey determined that a vehicle supplied to the Warden of the Atlantic County Jail was furnished for his rearular use. The Court determined that "when an accident occurs while a vehicle ftirnished for unrestricted business use is beincy used for business purposes... the 'regular use' exception should apply... In the subject case, the Aoreed Statement of Facts is silent as to the use to which the vehicle was being put at the time of the accident. (c) During the time that this Decision was reserved, I was provided with copies of the Decisions in Riesner v. Liao (1993) O.J. No. 805 and the

5 - 5 Decision of the Divisional Court in the same matter (1994) O.J. No Mr. Justice Jenkins concluded that a vehicle was furnished for regular use since the vehicle was provided to the two Plaintiffs on a regular basis, notwithstanding that they did not have exclusive use of the vehicle and notwithstanding that they did not have personal use of the vehicle outside of business operations. On Appeal in the Riesner case to the Divisional Court, that Court confirmed the Decision of Mr. Justice Jenkins as to "regular use". An Application for Leave to Appeal to the Court of Appeal in the Riesner case was dismissed, (1995) O.J. No Having considered all of the cases referred to above, I conclude that the GTAI van was being made available for regular use by John Berlec. Mr. Berlec had keys to the vehicle, and had exclusive use of the vehicle 24 hours daily, seven days weekly. That clearly constitutes habitual, repeated, constant and regular use. The fact that the use of the vehicle was to be restricted for maintenance purposes, does not change the categorization of the use as regular". WHICH INSURER IS RESPONSIBLE TO PAY BENEFITS UNDER THE SABS During the last four years, there have been numerous Decisions dealing with disputes between insurers as to which insurer is responsible to pay benefits under the SABS under the OMPP Regime, the Bill 164 Regime prior to the 1995 amendments and the Bill 164 Regime after the 1995 amendments. The legislators have seen fit to revise the provisions dealing with company automobiles and rental automobiles from time to time. With each Regime, there were changes in the wording. Clearly, it was the intention of the legislators that the insurer of a company vehicle would respond to claims by those who are regular users of that company vehicle. It appears that it was the intention of the legislators to provide a carrier

6 - 6 to which a company employee might apply for benefits under the SABS in cases in which the employee did not have a personal vehicle. In addition, even in cases when the employee had a personal vehicle, it appeared to be the intention of the legislators to have the employee apply to the insurer of the company vehicle when the employee was injured while an occupant of the company vehicle. The problem that developed is that the legislators did not choose wisely when wording the provisions dealing with company automobiles. Under the OMPP Regime, s. 3(1) of the SABS (pre-january 1, 1994) was worded so that it appeared that the section classified the regular user as a named insured", only for the purposes of the Regulation (the SABS). There were a number of Decisions supporting the proposition that s. 3(1) did not extend the definition of "named insured" for the purpose of the priority rules in s. 268(2) of the Insurance Act, R. S. O. 1990, c Those cases included AXA Home Insurance Company v. Western Assurance Company (1994) 21 C.C.L.I. (2d) 120; Portch v. Markel Insurance Co. of Canada, (1996) O.I.C.D. No. 204 and my own Decision in State Farm Mutual Automobile Insurance Company v. Canadian Surety Insurance Company (November 26, 1996). When the legislators came out with the Bill 164 SABS, s. 91(1) again gave the status of a "named insured" to regular users of a company vehicle but, appeared to confine that status "for the purpose of this Regulation". Aoain, various Decisions determined that the status of "named insured" was granted for the purpose of the Recrulation and not for the purpose of the bie priority rules in s. 268(2) of the Insurance Act. Those cases were Crosbie v. Co-operators General Insurance Company, OIC File No. A and A ; Aujla v. Progressive Casualty Insurance Co. of Canada, OIC File No. A and A and my own Decision in State Farm Mutual Automobile Insurance Companv v. Canadian Surety Insurance Company (November

7 - 7 26, 1996). The legislators went on to amend s. 91 of the Bill 164 SABS. They clearly set out that the regular user was to be the named insured under the policy insuring the automobile for the purpose of payment of the Statutory Accident Benefits... The 1995 amendment finally meant that the regular user was to be a named insured, not only for the purpose of the SABS but for the purpose of the application of the priority rules in s. 268(2) of the Insurance Act. I found that to be the case in the case of State Farm v. Canadian Surety (November 26, 1996). I reached the same conclusion in the case of The Dominion of Canada General Insurance Company v. Zurich Canada (July 10, 1997). A similar conclusion was reached by the Arbitrator in the case of Allstate Insurance v. State Farm Mutual Automobile Insurance Company (October 30, Arbitrator Rudolph). The issue to be determined in this case is whether the classification of a regular user as a named insured by reason of s. 66 of the Bill 59 SABS is simply for the purpose of the Bill 59 SABS, or whether the granting of that status can be applied to the priority rules in s. 268(2) of the Insurance Act. It is aroued on behalf of Dominion that the regular user is deemed to be a "named insured... for the purpose of this Regulation". Dominion argues that the reference to "this Regulation" is similar to the reference to "this Regulation" in s. 3(1) of the OMPP SABS and that it is similar to the reference to "for the purpose of this Regulation" in s. 91(1) of the Bill 164 SABS. Dominion argues that the legislators after amending the Bill 164 SABS to provide the wording in s. 91(4), clearly decided to change the wording and the meaning of the section when legislating s. 66 of the Bill 59 SABS. Dominion argues that in s. 91(4) of the Bill 164 SABS, the legislators clearly set out that the regular user was to be "the named insured... for the purpose of payment of

8 - 8 the Statutory Accident Benefits.... No similar wording was inserted into s. 66 of the Bill 59 SABS. Co-operators argues that the regular user is given the status of a "named insured under the olicy" and that that wordina, also present in s. 91(4) of the Bill 164 SABS has been preserved. It is argued on behalf of Co-operators that once the recular user has the status of named insured under the policy, that that is a sufficient link to allow the application of the priority rules for the regular user as a "named insured". The Decisions which held that regular users were deemed to be "named insureds" for the purpose of the SABS and not for the purpose of the priority rules in s. 268(2) of the Insurance Act, were all made prior to the release of the Decision of the Court of Appeal in the case of Warwick, et al v. Gore Mutual Insurance Company (1997) 32 O.R. (3d) 76. In the Warwick case, the Plaintiff was a passenger in an automobile insured by Gore Mutual. At the time of the accident, she was a listed occasional driver on a policy of insurance on two vehicles owned by her father. Those vehicles were insured by State Farm. The issue was whether or not the Plaintiff was an "insured person" under the Gore Mutual policy and under the State Farm policy. Once the Plaintiff had been classified as an "Insured person" under one or both policies, resort would then be had to s. 268 of the Insurance Act, the so-called "priority" rules. In the Warwick case, Mr. Justice Laskin underlined the fact that every motor vehicle liability policy is deemed to provide for the statutory accident benefits set out in the Statutory Accident Benefits Schedule, "subject to the terms, conditions, provisions, exclusions and limits set out in that Schedule". Mr. Justice Laskin set out that "Contractual entitlement to no-fault benefits is determined by s. 268(1) of the Act... Section 268(1) adds the Schedule to every contract of automobile insurance but then delegates to the Schedule-maker authority to

9 - 9 define the classes of persons insured under any particular contract. Mr. Justice Laskin, in the final analysis, looked to s. 2 of the OMPP SABS for the definition of "insured person". He did that because s. 268(1) of the Insurance Act added the SABS to every insurance policy but, added the SABS subject to the terms of the SABS themselves. Mr. Justice Laskin interpreted that to me that the SABS defined the classes of persons insured under any particular contract. When lookino, at s. 2 of the OMPP SABS, he found that the Plaintiff in the Warwick case was an insured person under the Gore Mutual policy since she was an occupant of the vehicle insured by Gore Mutual when the vehicle was involved in an accident in Ontario. When he examined the definition in s. 2, he found that the Plaintiff was not an insured person under the State Farm policy. Having resorted to the OMPP SABS for the definition of insured person, he then applied that finding as to "insured person" when examining s. 268(2) of the Insurance Act. He transposed the definition and classification of a Plaintiff from the SABS to the Insurance Act. Mr. Justice Laskin determined that the legislators delegated to the Schedulemaker authority to define the classes of persons insured under any particular contract. In the subject case, s. 66 of the Bill 59 SABS classifies regular users of a vehicle as "named injureds". Just as Mr. Justice Laskin employed the classification of a claimant in the SABS and then applied that classification when having regard to the priority rules in s. 268 of the Insurance Act, in the subject case, I find that s. 66 of the SABS classifies Mr. Berlec as a named insured" under the Dominion policy. When I then have resort to s. 268, I find by having regard to s. 268(5) that Mr. Berlec would be a "named insured" under the Dominion policy and the spouse of a "named insured" under the Co-operators' policy. I then move on to s. 268 (5.2) which sets out that when a person may claim against

10 - 10 more than one insurer, and was, at the time of the incident, an occupant of an automobile in respect of which the person is the named insured... the person shall claim Statutory Accident Benefits against the insurer of the automobile in which the person was an occupant". The legislators have inter-woven the statutory provisions of the Insurance Act with the Statutory Accident Benefits Schedule. Had the Warwick case been considered in the earlier cases interpreting s. 3(l) of the OMPP SABS and s. 91(1) of the Bill 164 SABS, those Decisions referred to under those sections above would likely have been decided differently. However, it is not necessary for me to consider whether or not those Decisions were correctly decided. The issue before me is the interpretation of s. 66 of the Bill 59 SABS. Having found that Mr. Berlec was a regular user of the GTAI van, and having, determined that Mr. Berlec was a "named insured" by having regard to s. 66 of the SABS, I then apply s. 268 (5.2) of the Insurance Act and find that The Dominion of Canada General Insurance Company is the company responsible to pay benefits under the SABS to Mr. Berlec. While this Decision was reserved, counsel for Co-operators referred me to a recent Decision of Arbitrator Robinson in the case of Lloyd's London v. State Farm Mutual Automobile Insurance Co. (October 13, 1998). Mohinder Kang was the regular user of a cab insured by Lloyd's. He was operating that cab at the time of the accident. He was also the named insured under a policy issued by State Farm on a personal vehicle. Arbitrator Robinson concluded that the insurer of the cab, the company vehicle, was responsible to pay benefits to Mr. Kana. Arbitrator Robinson applied the Warwick case to support a conclusion similar to the conclusion which I have reached. Accordingly, The Dominion of Canada General Insurance Company will continue to be responsible for payment of Statutory Accident Benefits to John Berlec.

11 In accordance with the Arbitration Agreement, The Dominion of Canada General Insurance Company is ordered to pay costs of this Arbitration, fixed at the sum of $2,500.00, inclusive of GST, to Co-operators General Insurance Company. The Dominion of Canada General Insurance Company is also to be responsible for payment of the fees and expenses of the Arbitrator. February 9, 1999 Stephen M. Malach, Q.C. Arbitrator

12 SCHEDULE "A" IN THE MATTER OF THE INSURANCE ACT, R.S.O. 1990, c. 1.8 SECTION 268 AND REGULATION 283/95 MADE UNDER THE INSURANCE ACT AND IN THE MATTER OF THE ARBITRATION ACT S.O. 1991, c.17 AND IN THE MATTER OF AN ARBITRATION BETWEEN THE DOMINION OF CANADA GENERAL INSURANCE COMPANY Applicant -and- THE CO-OPERATORS GENERAL INSURANCE COMPANY Respondent AGREED STATEMENT OF FACTS BACKGROUND 1. On March 20, 1997, Mr. John Berlec was involved in a motor vehicle accident. 2. Mr. Berlec was operating a 1997 Ford Econoline Van northbound on the Don Valley Parkway. 3. The van was owned by Global Travel Apartments Inc. ("GTAI") and was insured with the Dominion of Canada General Insurance Company ("Dominion"). 4. At the time of the accident, Mr. Berlec's spouse owned a 1996 Plymouth Voyager which was insured with the Co-operators General Insurance Company ("Cooperators"). Mr. Berlec's spouse was the named insured under the contract of insurance with the Co-operators. 12. Mr. Berlec was told by a representative of GTAI to use the van for maintenance. If he were at home and he wanted to go shopping, for instance, he would have used the Co-operators' insured van.

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