Wawanesa Mutual v. M.V. Accident Claims (2010), 261 O.A.C. 298 (DC)
MLB headnote and full text
Temp. Cite: [2010] O.A.C. TBEd. AP.077
Wawanesa Mutual Insurance Company (applicant) v. Motor Vehicle Accident Claims Fund, Karolis Valauskas and The Financial Services Commission of Ontario (respondents)
(80/09; 2010 ONSC 1949)
Indexed As: Wawanesa Mutual Insurance Co. v. Motor Vehicle Accident Claims Fund et al.
Court of Ontario
Superior Court of Justice
Divisional Court
McCombs, Molloy and Swinton, JJ.
March 31, 2010.
Summary:
Wawanesa Mutual Insurance Co. applied for judicial review of a Director’s Delegate’s decision which denied an appeal of an arbitrator’s order. The Director’s Delegate was determining whether the arbitrator erred in law in finding that the Motor Vehicle Accident Claims Fund was not an insurer under s. 268(2) of the Insurance Act and therefore not required to pay statutory accident benefits as the first insurer to receive a completed application for benefits. The arbitrator reached this decision because he found that no nexus had been established between the claimant and the Fund.
The Ontario Divisional Court held that a reasonableness standard of review applied and dismissed the application.
Insurance – Topic 704
Insurers – General – What constitutes an insurer – [See
Insurance – Topic 5080
].
Insurance – Topic 5080
Automobile insurance – Compulsory government schemes – Bodily injury and death benefits – Appeals or judicial review – Wawanesa Mutual Insurance Co. applied for judicial review of a Director’s Delegate’s decision which denied an appeal of an arbitrator’s order – The Director’s Delegate was determining whether the arbitrator erred in law in finding that the Motor Vehicle Accident Claims Fund was not an insurer under s. 268(2) of the Insurance Act and therefore not required to pay statutory accident benefits as the first insurer to receive a completed application for benefits – The arbitrator reached this decision because he found that no nexus had been established between the claimant and the Fund – The Ontario Divisional Court held that a reasonableness standard of review applied – The Director’s Delegate was protected by a full privative clause in s. 20(1) of the Act – The nexus issue was within the Director’s Delegate’s expertise, and the nexus principle was not of central importance to the legal system – It was only relevant to disputes respecting entitlement to Ontario no-fault motor vehicle accident benefits and was squarely within the Director’s Delegate’s expertise – Moreover, the nexus issue raised a question of mixed fact and law – The court dismissed the application.
Cases Noticed:
New Brunswick (Board of Management) v. Dunsmuir, [2008] 1 S.C.R. 190; 372 N.R. 1; 329 N.B.R.(2d) 1; 844 A.P.R. 1; 2008 SCC 9, refd to. [para. 3].
TTC Insurance Co. v. Watson et al. (2008), 241 O.A.C. 131 (Div. Ct.), refd to. [para. 3].
Aviva Canada Inc. v. Murugappa et al. (2009), 251 O.A.C. 193 (Div. Ct.), refd to. [para. 3].
Kingsway General Insurance Co. v. Ontario (Minister of Finance) (2007), 84 O.R.(3d) 507 (C.A.), refd to. [para. 5].
Statutes Noticed:
Insurance Act, R.S.O. 1990, c. I-8, sect. 268(2) [para. 2].
Counsel:
Lee Samis, for the applicant;
Robert W. Kerkmann, for the respondent, Motor Vehicle Accident Claims Fund;
Robert Conway, for the respondent, Financial Services Commission of Ontario;
Seth Kadish̀§ for the respondent, Karolis Valauskas.
This application was heard by McCombs, Molloy and Swinton, JJ., of the Ontario Divisional Court, on March 31, 2010. Swinton, J., delivered the following decision for the court on the same date.
