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1 CITATION: The Dominion of Canada General Insurance Company v. Optimum Insurance Company, 2016 ONSC 985 COURT FILE NO.: CV COURT FILE NO.: CV DATE: IN THE MATTER OF THE INSURANCE ACT, R.S.O. 1990, c. 1.8, SECTION 268 AND REGULATION 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 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: THE DOMINION OF CANADA GENERAL INSURANCE COMPANY Applicant - and- OPTIMUM INSURANCE COMP ANY Respondent D 'Arey McGoey for the Applicant Amanda M Lennox and And r ew Smith for the Respondent HEARD: January 27, 2016 PERELL,J. REASONS FOR DECISION A. INTRODUCTION [1] Before the court are two appeals from decisions of Arbitrator Ken Bialkowski dated April 25, The underlying facts for the cases are quite similar and the legal issues to be detennined for the cases are identical. Both cases concern a dispute between The Dominion of Canada General Insurance Company ("Dominion" and Optimum Insurance Company ("Optimum" about liability for the payment of statutory accident benefits ("SABS" associated with motor vehicle insurance policies under Ontario's no fault insurance scheme under the Insurance Act, R.S.O. 1990, c. I.8. In both cases, which were priority of payment disputes, the Arbitrator concluded that Dominion was liable to pay the SABS.

2 2 [2] In both appeals, the patties agree on the relevant decision precedents from the arbitration legal community, but they extrapolate the legal principles from those decisions about the Insurance Act, its regulations, and its forms differently. [3] In both appeals, the major question is whether the so-called "comprehensive coverage" motor vehicle insurance policies issued by Dominion for its insureds were continuations of "motor vehicle liability" policies for which there is SABS coverage. Put differently, the question in both appeals is: How, if at all, can an insurer change a "motor vehicle liability policy", which provides SABS coverage, to a "comprehensive coverage motor vehicle policy," which does not provide SABS coverage? [4] The parties agree that an insurer can issue a comprehensive coverage motor vehicle policy that does not provide SABS coverage; however, the parties disagree about how this can be brought about. The appellant Dominion's argument is that a motor vehicle liability policy with SABS coverage can be renewed as a comprehensive coverage motor vehicle policy without SABS coverage. In contrast, Optimum's argument is that what was once a motor vehicle liability policy cannot be changed or suspended or renewed without SABS coverage continuing. In effect, it is Optimum's argument that once a motor vehicle liability policy, always a motor vehicle liability policy. Optimum argued that the once an insurer issues a motor vehicle liability policy, the insurer can only avoid SABS coverage by cancelling the motor vehicle liability policy and issuing a brand new policy (new application, new policy number, etc. that is not a motor vehicle liability policy. [ 5] I agree with Optimum and, therefore, I dismiss the appeals in both cases. B. FACTUAL, PROCEDURAL, AND JURISDICTIONAL BACKGROUND 1. Factual Background [6] The parties agreed on the relevant facts and submitted an Agreed Statement of Facts to the Arbitrator. The claimants; i.e. the recipient of the SABS, were Dalia De Paz and Lawrence Robinson. I have set out the facts of the De Paz case and of the Lawrence case below. As will appear, the essential facts are similar but not identical. As will be seen, the legal issues are identical. On July 22, 2012, Ms. Dalia De Paz was a On May 18, 2013, Mr. Lawrence Robinson passenger of a motor vehicle with an Optimum was the operator of a motor vehicle with an motor vehicle liability insurance policy that Optimum motor vehicle liability insurai1ce provided coverage for SABS. policy that provided coverage for SABS. The vehicle in which Ms. De Paz was a The vehicle driven by Mr. Robinson was passenger was involved in an accident at1d Ms. involved in an accident and Mr. Robinson was De Paz was injured. injured. At the time of the accident, Ms. De Paz's At the tin1e of the accident, Mr. Robinson's husband was an insured under a policy of common law spouse, Judy McDougall, was an motor vehicle insurance issued by Dominion. insured under a policy of motor vehicle insurance issued by Dominion.

3 3 Whether this motor vehicle insurance policy Whether this motor vehicle insurance policy provided coverage for SABS was the question provided coverage for SABS was the question to be determined by the Arbitrator. to be determined by the Arbitrator. Before the accident, Mr. De Paz was the Before the accident, Ms. McDougall was the insured under a Dominion motor vehicle insured under a Dominion motor vehicle liability policy no. APP that provided liability policy no. APP that provided coverage for SABS. He paid an ammal coverage for SABS. She paid an annual premium of$3,716. premium of$956. Before the accident, on August 17, 2010, Mr. Before the accident, on February 4, 2013, Ms. De Paz reduced his insurance coverage on McDougall reduced her insurance coverage on Dominion policy no. APP to Dominion policy no. APP to comprehensive coverage for the period ending comprehensive coverage for the period April 25, February 4, 2013 to May 17, She paid an annual premium of $75. The comprehensive policy did not provide for SABS. A Suspension of Coverage Form "OPCF-16" A Suspension of Coverage Form "OPCF-16" was not used in reducing the coverage to was not used in reducing the coverage to comprehensive coverage. comprehensive coverage. A "Ce1tificate of Automobile Insurance" was used to remove the liability coverage from policy no. APP Before the accident, Mr. De Paz renewed his Before the accident, Ms. McDougall renewed Dominion motor vehicle insurance policy with her Dominion motor vehicle insurance policy comprehensive coverage with an annual with comprehensive coverage with an annual premium of$108. premium of$70. Before the accident, for a second time, Mr. De Paz renewed his Dominion motor vehicle insurance coverage with comprehensive coverage with an annual premium. After the accident, Ms. De Paz submitted an After the accident, Mr. Robe1tson submitted an Application for Accident Benefits (OCF-1 to Application for Accident Benefits (OCF-1 to Optimum. The OCF-1 noted that Ms. De Paz Optimum. The OCF-1 noted that Mr. Robinson was married and was not covered under any was a common-law spouse and was not motor vehicle policy. covered under any motor vehicle policy. After the accident, on August 20, 2012, After the accident, on August 20, 2012, Optimum sent Ms. De Paz and Dominion the Optimum sent Mr. Robinson and Dominion the Notice to Applicant of Dispute Between Notice to Applicant of Dispute Between Insurers. Insurers.

4 4 On June 20, 2013, the dispute was submitted to arbitration. On April 2, 2014, the dispute was submitted to arbitration. The Arbitrator concluded that Dominion was The Arbitrator concluded that Dominion was liable to pay SABS. liable to pay SABS. [7] To understand the analysis and discussion below, certain facts need to be kept in mind; namely: In both cases, before the respective accidents, Dominion had issued motor vehicle liability policies that provided SABS coverage to Ms. De Paz and Mr. Robinson respectively. Before the accident, both Mr. De Paz and Ms. McDougall reduced the coverage on the respective Dominion policies to a comprehensive coverage. In altering the insurance coverage, neither Mr. De Paz nor Ms. McDougall used Form "OPCF-16" (Suspension of Coverage. Before the accident both Mr. De Paz (twice and Ms. McDougall (once renewed their insurance policies with only comprehensive coverage. The accidents occurred after the renewals of the insurance policies as comprehensive coverage policies. 2. Procedural and Jurisdictional Background [8] Dominion and Optimum have signed arbitration agreements that reserve the right to appeal an arbitrator's decision to the Superior Court on issues of law or mixed fact and law. [9] The standard of review for decisions of arbitrators under the Insurance Act is correctness on questions of law and reasonableness on questions of mixed fact and law: Oxford Mutual Insurance Company v. Co-operators General Insurance Company (2006, 83 O.R. (3d 591 (C.A.. C. DISCUSSION AND ANALYSIS 1. Position of the Parties [10] Dominion's argument is that the renewal of what had been a motor vehicle liability policy as a comprehensive motor vehicle insurance policy constitutes the creation of a new policy of insurance with no SABS coverage. In advancing its argument, Dominion relies on State Farm v. TD General Insurance Co. (August 2011, Arbitrator Scott. [11 J Optimum does not dispute that the renewal of an insurance policy constitutes a new policy of insurance, but it submits that for the purposes of the Insurance Act, the new insurance policy as the successor of what once was a liability motor vehicle insurance policy continues to be liable to provide SABS coverage.

5 5 [12] Optimum submits that an insurer cannot reduce coverage without using an OPCF-16. Optimum submits that OPCF-16 is the prescribed form that must be used to reduce a motor vehicle policy to comprehensive coverage; it, thus, submits that Dominion's failure to use the prescribed form entails that the renewed Dominion policy was a motor vehicle liability policy. Further, Optimum submits that if Dominion had used OPCF-16, as it was required to do, the Dominion policy would still have been a motor vehicle liability policy. [13] Optimum submits that there is no means to convert a motor vehicle liability policy into comprehensive coverage; rather, the motor vehicle liability policy must be cancelled and a brand new policy purchased. The position of Optimum is set out in paragraphs 32 and 33 of its factum for Ms. De Paz. The position is similar for Mr. Robinson. Paragraphs 32 and 33 of the De Paz factum state with my emphasis added: 32. [Dominion] is arguing that there is no authority for the proposition that OPCF-16 must be used "in entering into a new "non-liability" contract of insurance ( emphasis added. [Optimum] agrees that an OPCF-16 is not required when entering into a non-liability contract of insurance. However, [Dominion] is ignoring the fact that Mr. De Paz's contract of insurance was a motor vehicle liability contract of insurance and the failure to use the OPCF-16 to reduce the policy of comprehensive coverage results in the policy continuing to be a motor vehicle liability policy of insurance containing SABS coverage at the time of each renewal. Dominion policy of insurance no. APP was never a "non-liability only" contract of insurance. 33. if [Dominion] wished to eliminate SABS coverage while maintaining comprehensive coverage [it] would be required to cancel Dominion policy of insurance no. APP and issue a nonmotor vehicle liability policy. If [Dominion] wished to maintain Dominion policy of insurance APP and reduce the policy to comprehensive coverage, [it] must use an OPCF-16 endorsement. [Dominion] did neither. 2. Statutory Background [ 14] Under Part VI of the Insurance Act and associated regulations, the content of an automobile insurance policy is prescribed. Pursuant to the legislation, there is a standard form contract that provides different types of automobile insurance coverage, and an insured has choices about the extent of coverage that he or she will purchase. Typically, an owner of a vehicle selects motor vehicle liability coverage because operated vehicles are required to have liability insurance. The owner of a vehicle may also purchase "collision insurance" covering damage to the vehicle if it is involved in an accident. An owner may also purchase "comprehensive coverage" that covers theft and miscellaneous causes of damage to the vehicle (viz. fire, falling tree, storm damage, etc.. [15] Section 1 of the Insurance Act, defines "motor vehicle liability policy" as follows: "Motor Vehicle Liability Policy" means a policy or part ofa policy evidence a contract insuring (a the owner or driver of an automobile or, (b a person who is not the owner or driver thereof where the automobile is being used or operated by that persons employee or agent or any other person on that persons behalf against liability arising out of bodily injury to or the death of a person or loss or damage to property caused by an automobile or the use or operation thereof. [16] Under s. 268 (1 of the Insurance Act, every motor vehicle liability policy is deemed to provide SABS coverage. Section 268 (1 states:

6 6 268 (I Every contract evidenced by a motor vehicle liability policy including eve1y such contract in force when the statut01y accident benefits schedule is made or amended shall be deemed to provide for the statutory accident benefits set out in the schedule and any amendments to the schedule subject to the terms conditions provisions exclusions and limits set out in that schedule [ 17 However, not every motor vehicle policy is a motor vehicle liability policy. It is possible and lawful for a car owner to obtain insurance coverage to provide coverage just for damage or theft of the vehicle and such a policy would not be a "motor vehicle liability policy" under s. 268 of the Act. See: Certas v. CGU!Aviva (December 5, 2005, Arbitrator Samis. [18 Although a car owner is required to obtain a motor vehicle liability policy that would provide coverage for personal injuries caused by operating the vehicle, a car owner is not required to obtain a motor vehicle liability policy if the car owner does not use his or her vehicle on the highway. Visualize: a car owner who stored his or her vehicle for the winter or a car owner that collected but did not drive his or her vehicles on the highway does not require a motor vehicle liability policy. As revealed by the facts of both cases now before the court, the substantially lower underwriting risk for a non-liability motor vehicle policy results in substantially lower premiums than the premiums for a motor vehicle liability policy. [ 19 In the immediate cases, the parties agree that in the first instance, it would be possible for an owner of a motor vehicle to purchase just comprehensive insurance coverage and if he or she did so then that policy would provide no SABS coverage for the insured and no SABS liability for the insurer. But that scenario did not occur in either of the two cases before the court. In both cases, the insured at one time had purchased a motor vehicle liability policy but renewed the policy with only comprehensive coverage. In both cases, the reduction of the extent of coverage was accomplished without the use ofa form entitled OPCF-16 (Suspension of Coverage. (I have attached OPCF-16 and also OPCF-17 (Reinstatement of Coverage as Schedule "A" to these Reasons for Decision. [20 Sections 227 and 228 of the Insurance Act addresses the creation and use of forms for motor vehicle insurance policies. Sections 227 and 228 state: Approval of forms 227 (I An insurer shall not use a form of any of the following documents in respect of automobile insurance unless the form has been approved by the Superintendent: I. An application for insurance. 2. A policy, endorsement or renewal. 3. A claims form. 4. A continuation certificate. Application for insurance (I.I Paragraph I of subsection (I does not apply if, in accordance with the regulations, the insurer uses a form of application for insurance that is prescribed by the regulations. Approval of policies in special cases (2 Where, in the opinion of the Superintendent, any provision of this Part, including any statuto1y condition, is wholly or partly inappropriate to the requirements of a contract or is inapplicable by reason of the requirements of any Act, he or she may approve a form of policy, or part thereof, or endorsement evidencing a contract sufficient or appropriate to insure the risks required or proposed to be it1sured, and the contract evidenced by the policy or endorsement in the form so

7 7 approved is effective and binding according to its terms even if those terms are inconsistent with, vary, omit or add to any provision or condition of this Part. Approval of extensions (3 The Superintendent may, ifhe or she considers it to be in the public interest, approve a form of motor vehicle liability policy or endorsement thereto that extends the insurance beyond that prescribed in this Part. Conditions of approval of extension (4 The Superintendent, in granting an approval under subsection (3, may require the insurer to charge an additional premium for the extension and to state that fact in the policy or in any endorsen1ent. Standard policies (5 The Superintendent may approve the form of standard policies containing insuring agreements and provisions in conformity with this Pai1 for use by insurers in general. Publication (6 If the Superintendent approves a form of standard policy, the Superintendent shall cause a copy of the form to be published in The Ontario Gazette, but it is not necessary to publish endorsement forms approved for use with the standard policy. Revocation of approval (7 The Superintendent may revoke an approval given under this section, and, upon notification of the revocation in writing, no insurer shall thereafter use or deliver a form that contravenes the notification. Reason for decision (8 The Superintendent shall, on request of any interested insurer, specify in writing his or her reasons for granting, refusing or revoking an approval of a form. App/icat ion form 228. Where so required by the regulations, no insurer shall use a form of application other than a prescribed f Analysis [21] Relying on Certas v. CGU/Aviva and the series of cases that followed it, including the decision of the Arbitrator in the immediate case, Optimum submits that in the immediate cases the insureds' change from a motor vehicle liability policy to a comprehensive policy did not shed the policies of their SABS coverage and Dominion's attendant liability. [22] For its pmt, Dominion does not dispute the authority of Certas v. CG VI Aviva, which is a case about the significance of not using OPCF-16. Rather, Dominion distinguishes the case and its argument is that it was not necessm-y to use OPCF-16 to effect a change of coverage and indeed Dominion submits it is a non sequitur; i.e. it is not logical to suggest that the OPCF-16 be used for the circumstances of these cases, where the former motor vehicle liability policy was renewed only as a comprehensive coverage policy. In making this argument, Dominion relies on the principle from Patterson v. Gallant, [1994] 3 S.C.R that each successive renewal ofa motor vehicle insurance policy constitutes a new contract.

8 8 [23] Optimum's counterargument is that while it does not dispute the principle from Patterson v. Gallant, the principle begs the question about what is the nature of the new contract being created. Optimum submits that as a matter of contracting that is regulated by statute, the insurance contract continues as a motor vehicle liability policy with attendant SABS coverage and SABS liability for the insurer. [24] To resolve the debate between the paities and to determine whether the Arbitrator in the two cases now before the cou11 was correct in his decisions, it is necessary to examine closely what Certas v. CGU/Aviva and its line of cases decided and to determine whether or not these decisions are a correct expression of the law. [25] Before turning to analyze Certas v. CGU/Aviva, it is worth noting that Certas did not involve a renewal of an insurance policy and it is wo11h repeating that neither patty in the immediate cases disagrees with what Arbitrator Samis decided for the Certas case in paiticular; rather, the parties in the immediate appeals extrapolate the principles from that case differently for cases that do involve renewals of insurance policies, like the immediate cases. [26] The facts of Certas v. CGU/Aviva were that Oleg Michnevich, Jr. was an eleven-year-old riding a bicycle when on September 23, 2002, he was struck by a vehicle insured by CGU/ Aviva. At the time of the accident, Oleg, Jr. was an insured under a Certas policy that at one time, had been a motor vehicle liability policy. However, on August 22, 2001, before the accident, Oleg, Sr. requested that only comprehensive coverage should be continued in force for his vehicle. Certas responded to this request by issuing a "Cettificate of Automobile Insurance," which it described as a policy endorsement. Ce11as did not use OPCF-16 to effect the change to the insurance policy's coverage. It was after the endorsement was issued, that Oleg, Jr. was involved in the motor vehicle accident. Ce1tas paid the SABS for Oleg, Jr. and then asked to be reimbursed by CGU/Aviva. When CGU/Aviva refused to assume responsibility for the SABS, Ce11as commenced arbitration. [27] On the arbitration, Arbitrator Samis ruled that Certas was liable for the SABS and there should be no reimbursement. The Arbitrator's reasoning was as follows. Ce11as's intention was to change the coverage on its policy to remove motor vehicle liability coverage. Under the statuto1y regime for motor vehicle insurance, the approved and exclusive form to suspend coverage is OPCF-16, but Certas had used an endorsement, which was a confusing and unclear document. Using the endorsement was improper and could not suspend coverage beyond the suspension that would have been possible had the proper form been used. Had OPCF-16 been used, some - but not all - liability insurance would have been removed. Because some liability insurance remained, along with the comprehensive coverage that was being continued, the insurance policy continued to be a motor vehicle liability policy and, therefore, Cettas was liable for the SABS. [28] For present purposes, the passages found on pages 5, 6 and 7 of Arbitrator Samis's decision are crucial in understanding his holdings and his reasoning; in these passages, the Arbitrator stated, with my emphasis added: On the other hand the Superintendent of Insurance has approved a form of endorsement for this purpose Entitled OPCFI 6 Suspension of Coverage. This document is an approved form issued by the Superintendent pursuant to Section 227 of the Insurance Act. It succinctly describes its purpose as follows:

9 9 This change is pm1 of your policy It cancels coverage for the use or operation of the described automobile until coverage is reinstated Section 2 of the endorsement describes the various changes. It is notable that the coverage deleted does not include Comprehensive Coverage. In other words, the coverage that would be found under a policy that includes only fire and theft coverage continues to be in force. The endorsement does delete liability coverage and accident benefits coverage for the use or operation of the described automobile. In other words, this approved endorsement which continues Comprehensive Coverage in force does not contemplate total elin1ination of liability coverage or accident benefits coverage. The approved endorsement would require an insurer to cany on with some residual risk to the extent that there is limited coverage under the policy for Statutory Accident Benefits or for liability coverage that may arise out the use or operation of some other automobile. If Certas had issued the approved form OPCFl6 instead of the documentation proffered Certas would remain as an insurer on risk for accident benefits coverage with respect to the claims of the dependant son of the named insured Oleg Michnevich. While it may be that Ce11as certificate of automobile insurance is also a form which is approved by the superintendent, the regulator has specified a particular form to be used when a person intends to suspend the coverage except for Comprehensive Coverage. By the terms and conditions of that form the Superintendent requires the person to continue to have residual liability coverage and accident benefits coverage and other features. If it is permissible for Certas to delete coverage in the manner in which they have purp011ed to do so, then the approved form the OPCFI6 serves no purpose whatsoever. It is obviously a useful and purposeful document. It explains in reasonably clear language the effect of the changes to the contract. It requires the signature of the insured person thereby communicating the import of the decision taken. There is an approved endorsement which deletes coverage except for comprehensive coverage but which leaves in force certain residual protection for the insured person In effect the approved form deals with the common event where an insured person decides not to use a vehicle for a period of time. Because the vehicle will be stored and is still a property in which they have an insurable interest the people like to continue to have protection against fire and theft by continuing the comprehensive feature of coverage. Regulators have seen that it is important for people that have coverage under suspension to continue to have residual protection for liability coverage and accident benefits coverage. Hence regulators have issued the OPCFI6 to provide this residual protection. Ce11as by taking the approach that it did purp011ed to delete the residual liability coverage. The residual liability coverage would arise if Oleg Michnevich incuned a liability while being the driver of someone else's vehicle. In that circumstance, the insurer of the vehicle would be primary insurer and Oleg Miclmevich's own insurer would provide excess protection for Mr Miclmevich while he was drivh1g the vehicle. Similarly, pursuant to the approved endorsement there would be some coverage for accident benefits but only when the accident benefits do not arise out of the use or operation of the described automobile. In this limited way coverage is extended beyond comprehensive coverage in order to protect interests of the insured person that the regulator considers h1 need of protection. In my view the transaction entered into by Certas and Michnevich on August is substantially the same transaction which is intended to be governed by the OPCFI6. It is for the most part a suspension of liability coverage and other coverage other than comprehensive. As such in my view Section 227 of the Act requires that the insurer use the available approved form for this pmpose the OPCFI6. [29] Certas v. CGU/Aviva was followed in Enterprise Rent-a-Car v. Ing (November 2006, Arbitrator Jones. In this case, which had similar facts to those in the Certas case, Arbitrator Jones reiterated the reasoning of Arbitrator Samis. Arbitrator Jones stated, with my emphasis added:

10 10 Counsel for ING argues that the policyholder got exactly what he wanted when he requested co1nprehensive insurance only. Th.is 111ay or 1nay not be the case. Insurance coverage in Ontario is a highly complex and highly regulated industry. The average consumer will not necessarily have a complete understanding of the complexities of insurance coverage including when accident benefit coverage continues and when it does not. Because of the complexities involved the legislature by means of Section 227 of the Insurance Act has required that changes be made in accordance with the approved forms. Those forms make it relatively clear what coverage is being removed and accordingly what remains. It required that the policyholder sign and return the form. In short, the legislature by way of Section 227 of the Insurance Act required that changes be made in accordance with the approved form. Because of the complexities of insurance coverage in Ontario there are good reasons for the use of such forms. If ING had used the correct form the statutory accident benefit coverage would have continued to be in place for limited purposes including the factual situation presented in this case. ING cannot benefit by its failure to use the required form. Accordingly, the benefits that would have been in place had the form been used should be deemed to have remained in place and accordingly ING is responsible for payment of accident benefits to or on behalf of the claimant [30] The next case in the Certas line of cases is Jevco v. State Farm (July 23, 2013 a decision of Arbitrator Bialkowski, who is the Arbitrator in the immediate cases of De Paz and Robinson. [31] In Jevco v. State Farm, Jevco was the insurer of the driver and owner of the vehicle (Mr. Azizi in which Ms. Faizi was injured in a car accident. The driver of the Jevco insured vehicle was Ms. Faizi's husband, and he owned another vehicle insured by State Farm under whose policy Ms. Faizi was an insured. Before the accident, the State Farm policy had been a motor vehicle liability policy, but Ms. Faizi's husband requested a suspension of all coverage and State Farm affected this change by issuing an "Acknowledgement of Vehicle Form." State Farm did not use an OPCF-16. The accident occurred while the policy was under suspension. [32] In these circumstances, the Arbitrator followed Certas v. CGU/Aviva and Ente17Jrise Rent-a-Car v. Ing, and he stated: I do not accept the submissions advanced by State Farm. Although the cases may he factually distinguishable, I accept the general proposition that approved forms must be used to modify an existing policy. l am satisfied that Section 227 of the Insurance Act requires all policy endorsements be completed in a form approved by the Superintendent. It is not that Mr. Azizi did not have options available to him. In April 20 I 0, Mr. Azizi had the option of terminating his policy (which cancels all coverage as contemplated by Section 11(2 of OAP I - Ontario Automobile Policy or, in the alternative execute an OPCFl6 - Suspension of Coverage, which would maintain comprehensive coverage and certain residual coverages. In any event, I am not satisfied that the form used by State Farm (Acknowledgement of Vehicle Withdrawn from Use form was clear enough on its face to eliminate all coverage including accident benefits coverage. The initial policy included accident benefits coverage. The State Fann form suspended accident benefits coverage but there is an asterisk limiting Coverages Suspended with the limiting words set out in the bottom left hand corner of the form which reads as follows: Liability Coverage Accident Benefits Uninsured Automobile and Direct Compensation Prope11y Damage coverages are suspended with respect only to the use or operation of: I. The Described Automobile 2. A Newly Acquired Automobile and 3. A Temporary Substitute Automobile as defined in the policy

11 11 I interpret this to mean tl1e various coverages are only suspended where they arise out of the use or operation of the described automobile a newly acquired automobile or a temporary substitute vehicle. [33] For present purposes, I emphasize several aspects of Arbitrator Bialkowski's decision in Je1>co v. State Farm. He accepted the proposition that changes in policy coverage be affected by the use of approved forms, which State Farm did not use. He concluded that, in any event, the form used by State Farm was not elear enough to remove all motor vehicle liability coverage, and he observed that there is a way to remove all coverage by terminating the policy. [34] Before completing a review of the case law and returning momentarily to the appeals in the immediate cases, as I understand Dominion's argument, it does not dispute the correctness of the Arbitrator's decision in Certas v. CGU/Aviva, but it submits that the situations of Ms. De Paz and Mr. Robinson in the cases now under appeal are different because their respective insul'llnce policies were not only changed to comprehensive coverage, but the policies were also subsequently renewed. Dominion asserts that a renewed policy is in law a fresh contracting. [35] For the immediate appeals Dominion relies on the decision of Arbitrator Scott in State Farm v. TD General Insurance Co. (August [36 The facts of State Farm v. TD General Insurance Co., were that Elvira Tokaeva was a passenger in a vehicle insured by State Farm that was involved in a collision. At the time of the accident, she held a policy of insurance with TD General Insurance that provided only comprehensive coverage. Several times before the accident, Ms. Tokaeva had changed her policy coverage from liability to comprehensive and back again to liability and then back again to comprehensive. For one of these changes, she had been offered the use of Form OPCF-16 but she had declined. Thus, the policy was renewed sometimes with liability coverage and sometimes with just comprehensive coverage. At the time of the accident, Ms. Tokaeva only had comprehensive coverage from TD General Insurance. In a priority dispute, Arbitrator Scott held that TD General Insurance was not liable for SABS notwithstanding that Fmm OPCF-16 had never been actually used. [37] After reviewing the Certas i. CGU/Aviva line of cases, Arbitrator Scott found as a fact that at the time of the accident Ms. Tokaeva had the insurance coverage that she had asked for. He reasoned that there was an inconsistency in the decisions to the effect that use of an OPCF-16 was mandatory because the decisions held that the resulting comprehensive coverage also included some liability coverage but these decisions and the case law inconsistently accepted that there could be comprehensive coverage without any liability coverage. He stated that an insured should be able to purchase the coverage he or she wants from an insurer. At pages 12 and 13 of his decision, Arbitrator Scott described how just comprehensive coverage could be purchased; he stated: I pause to note that statutory Conditions- Automobile Insurance, Ontario Regulation 777/93, Section 11 (2} deals with tennination of a policy. Section l 1(2 provides that an insured may terininate a contract Hat any tin1e on request.'' lt is my view that when an insured seeks to reduce coverage to comprehensive only, an insurer and/or a broker likely has an obligation to the injured to describe the availability of an OPCF-16 and the enhanced coverage it provides. As long as the endorsement and the provisions are adequately explained, an insured can then make an informed decision. If enhanced coverage is chosen, the approved form must be used.

12 12 Again, an insured seeking to reduce comprehensive coverage is likely entitled, from a broker or an insurer, to be informed about the availability and benefits coverage of an OPCF-16. It is not my view that an insured must purchase the additional coverage when reducing the coverage midpolicy. In conclusion, at the time of the motor vehicle accident in issue, the TD policy had only collision coverage. The Certificate of Insurance issued at the time of renewal, for the policy covering the date of the loss, which was not changed in any way from the renewal through the date of the loss, clearly provided only comprehensive coverage. The insured, when applying for Accident Benefits, believed that she did not have any other coverage to turn to. As a result, State Fann [not TD Genetal Insurance] is obliged to pay Accident Benefits [SABS] [38] As I read Arbitrator Scott's decision, it does not assist Dominion in the immediate cases except to the extent that it supports the propositions: (1 that OPCF-16, which does not eliminate all liability coverage, is not mandatory; and (2 that it is possible to eliminate liability coverage mid-policy. The effect of renewing a policy; i.e. that a renewal is a new contracting, does not play a role in the Arbitrator's decision, and, rather, the key to his decision is the proposition that provided that the insmed makes an informed decision, including being info1med about the coverage available under OPCF-16, the insured can decide to purehase a comprehensive eoverage without the enhanced coverage of some liability coverage available under OPCF-16. In State Farm v. TD General Insurance Co., the insured was offered OPCF -16, rejected it, and made an informed decision about comprehensive only coverage. [39] This brings the discussion and the analysis to the Arbitrator's decisions in the immediate appeals. In the immediate cases, Arbitrator Bialkowski preferred the reasoning in the Certas v. CGU/Aviva line of cases and concluded that there was a flaw in Arbitrator Scott basing his decision on the idea that mid-policy, provided the insured made an informed decision, he or she had the choice of not using OPCF-16 and of just purchasing comprehensive coverage. [ 40] Arbitrator Bialkowski felt that the fallacy in State Farm v. TD Genera/ Insurance Co. was that the Arbitrator ignored the reality that automobile insurance is highly regulated and the legislature often restricts the choices available to insureds and there were public policy reasons that would justify requiring a continuance of some liability coverage mid-term when the insured otherwise reduces his or her coverage to comprehensive. [41 J My own opinion is that Arbitrator Bialkowski's decision in the immediate cases was both reasonable and correct in law. [ 42] There are sound policy reasons for requiring the use of OPCF-16 mid-term even though its use means that the insured cannot cancel all of his or her liability coverage. The fact that the insurance policy is subsequently renewed as just a comprehensive policy begs the question of what was renewed and begs the question of whether the insured understood what he or she was purchasing in renewing a policy that at one time included liability coverage. [43] Recognizing that an insured has the alternative of terminating his or her policy mid-term and starting afresh by purchasing just comprehensive insurnnce, I agree with the Certas v. CGU/Aviva line of decisions. I see no inconsistency in the legislated scheme for motor vehicle insurance accepting that an insured could have applied for and purchased just comprehensive coverage at the outset ( without attendant SABS coverage and requiring an insured who did not at the outset apply for just comprehensive coverage but who has changed insurance needs midterm to te1minate his or her policy and start afresh by filing out an application for a new policy

13 13 for just comprehensive coverage. [44] The public policy advantages supporting the use ofopcf-16 mid-term or the alternative of starting afresh with a genuinely new policy is that it sustains the purpose of a non-fault insurance regime where more than one insurer may be liable for paying SABS unless they have clearly limited their exposure and it makes it more likely that the insured, as a consumer, understands what insurance coverage he or she has. D. CONCLUSION [ 45] For the above reasons, I dismiss the appeals. [ 46] If the parties cannot agree about the matter of costs, they may make submissions in writing beginning with Optimum's submissions within 20 days of the release of these Reasons for Decision followed by Dominion's submissions within a fmther 20 days. Released: Febrnary 8, \~- \ Perell, J.

14 Schedule "A" OPCF16 Suspension of Coverage Issued to Polley Number Effective Date of Change Year Month Day D This change applies only to automobile(s number Indicated on your Certificate of Automobile Insurance. The refund for this change is$ D See your Certificate of Automobile Insurance for which automobile(s this change applies to. The refund for this change is $. Please sign and return this form. Keep a copy for your records. 1. Purpose of This Change This change is part of your policy. It cancels coverage for the use or operation of the described automobile until coverage is reinstated. 2. What you Agree to 2.1 In return for the refund, you agree that the described automobile will continuously taken out of use and not operated as of the effective date of this change. 2.2 You agree that the following coverages will be cancelled for the use or operation of the described automobile, a newly acquired automobile, and a temporary substitute automobile: Section 3, "Liability Coverage," Section 4, "Accident Benefits Coverage," Section 5, "Uninsured Automoblle Coverage," and Section 6, "Direct Compensation -Property Damage Coverage." 2.3 You also agree that the following coverages will be cancelled for the described automobile, newly acquired automobile and temporary substitute automobile: Section 7, "Loss or Damage Coverages (Optional" All Perils, but only for loss or damage caused by Collision or Upset. and Collision or Upset. 2.4 We may choose to refund a portion of your premium when you sign this change or when we reinstate your coverages. 2.5 We will not pay a refund if you suspend your coverage for less than 45 consecutive days. 3. Period of Suspension This cancellation will be In effect from the effective date of this change until coverage Is reinstated by OPCF 17, "Reinstatement of Coverage." All other tenns and conditions of your policy remain the same. Signature of Insured Date

15 Issued to OPCF 17 Reinstatement of Coverage Policy Number Effective Date of Change Year Month Day DThis change applies only to automoblle(s number indicated on your Certificate of Automobile Insurance. The additional Premium/refund for this change Is$ or as indicated on your Certificate of Automobile Insurance. O See vour Certificate of Automobile Insurance for which automoblle(s this change applies to. The additional nrem!um/refund for this 1. Purpose of This Change This change Is part of your policy. It reinstates the coverages cancelled by OPCF 16, ususpension of Coverage.n 2. What We Wiii Cover In return for the premium charged, we will reinstate the coverages cancelled by OPCF 16, ususpension of Coverage", as of the effective date of this change. 3. Limitations on Your Coverage We will not pay any claims that would have been payable under the coverages cancelled by OPCF 16, ususpension of Coverage," for any incident occurring from the date you suspended your coverage until the effective dale of this change. All other tenns and conditions of your policy remain the same.

16 CITATION: The Dominion of Canada General Insurance Company v. Optimum Insurance Company, 2016 ONSC 985 COURT FILE NO.: CV COURT FILE NO.: CV DATE: BETWEEN: ONTARIO SUPERIOR COURT OF JUSTICE THE DOMINION OF CANADA GENERAL INSURANCE COMPANY -and- Applicant OPTIMUM INSURANCE COMPANY Respondent REASONS FOR DECISION PERELLJ. Released: Febrnary 8, 2016

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