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Insurance - Auto - No-Fault. Ontario (Government and Consumer Services) v. Gore Mutual Insurance Company
In Ontario (Government and Consumer Services) v. Gore Mutual Insurance Company (Ont CA, 2023) the Court of Appeal upheld a Superior Court when it allowed an appeal under s.45 Arbitration Act (on "questions of law" only), here where an auto insurance arbitrator implicitly imported 'fault' as a causation factor in determining whether a vehicle (here a snowmobile) was "involved in the incident from which the entitlement to statutory accident benefits arose" [s.268(2)(1)(iii)]:E. THE APPEAL JUDGE’S DECISION
[19] The Fund appealed the Arbitrator’s decision to the Superior Court. Under s. 45 of the Arbitration Act, 1991, S.O. 1991, c. 17, it was only permitted to do so on an issue of law.
[20] The appeal judge held that the Arbitrator had wrongly imported a causation requirement:The arbitrator engrafted a requirement for causation or fault for claimants’ injuries into the no-fault payment priority ladder. He focused on injuries caused or contributed to by the accidents rather than mere involvement in the broader incident as directed by the statutory language. He further explained that this was an error of law that drove the result the Arbitrator reached:The arbitrator engrafted a fault criterion into the priority ladder because he could not help but think that the Legislature meant to limit insurer’s payment obligations to those whose insured vehicles caused or contributed to the claimant’s injuries. Why? The statute does not mention fault or causation in s. 268 (2)(1) at all. This is neither a loss transfer nor a tort law determination of ultimate responsibility for the accident(s). Subparagraph 268 (2)(1)(iii) uses the word ‘incident’ rather than accident. The insured vehicle does not need to be involved in an accident at all. Recall that an accident is an incident in which injuries are caused. So, for the purpose of (iii), there needs only be an incident i.e. some event, occurrence, or happening. Moreover, involvement is a vague term that involves proximity or nexus in time or place.
In my view the arbitrator made an error of law superimposing a causation requirement into the statutory definition before him. The two brothers and Ms. Lance went snowmobiling together. They drove on a path together where they were not allowed to be. They both drove too fast. They were sadly killed together – within a second of each other – by the same cause. There certainly were two different impacts. It is conceivable that there were two different accidents. But there was only one incident.
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