Two recent decisions from Ontario highlight that unlike fine wine, wrongful dismissal claims do not get better with age. The Superior Court decision of Kennedy v. RBC, and the Court of Appeal decision of Bailey v. Milo-Food & Agricultural Infrastructure & Services Inc, highlight that limitation periods can be live issues where employees engage in protracted pre-litigation negotiations or are provided a long period of working notice. These decisions re-affirm the general rule that once proper notice of an employee’s termination is given, the limitation clock starts to run.
In Kennedy, the defendant brought a summary judgment motion to dismiss the plaintiff’s action as limitation barred. The plaintiff had been an employee of Royal Bank of Canada in Toronto. She moved to work at a Royal Bank in Trinidad and Tobago. For reasons that are unclear, sometime prior to November 27, 2009, the plaintiff resigned from the company. She subsequently retained counsel and attempted to rescind her resignation. On December 17, 2009, RBC determined that the employment relationship was irreparably damaged and advised that they would be offering her a severance package. What followed was several months of back and forth negotiations between lawyers for the parties. Eventually, no settlement was reached and the plaintiff issued a claim sometime after May 26, 2012.
The plaintiff attempted to rely on s. 5(1)(b) of the Limitations Act to claim she had not “discovered” her full claim until July or November 2010, when certain run-off payments from RBC were not received. Nakatsuru J. disagreed. The correspondence between the parties made it abundantly clear that by May 26, 2010, the plaintiff was aware of her claims and was explicitly threatening litigation. In finding that the plaintiff’s claim was limitation barred, the judge outlined several basic principles:
Generally speaking, a cause of action in contract arises when the alleged breach occurs;
In wrongful dismissal claims, the breach occurs when insufficient notice is provided upon termination;
A plaintiff does not need to know the full extent of the damages suffered, but merely that they are aware some loss occurred due to the defendant’s actions;
When addressing the issue of discoverability, the test is objective. It requires a determination of when a reasonable person in the plaintiff’s position with her abilities and circumstances would have been alerted to the elements of the claim; and
Engaging in negotiations to extract a tactical advantage from a party does not stop the limitation clock.
Nakatsuru J. also noted that the plaintiff was represented by counsel prior to her dismissal from RBC. This was far removed from the situation where an unsophisticated lawyer-less ex-employee was strong along by her employer and then failed to commence litigation in a timely fashion. Accordingly, the plaintiff missed the limitation period. Her clam was dismissed.
A similar result was confirmed in Bailey by the Ontario Court of Appeal. In that case, the plaintiff was advised on March 7, 2013 that his position was no longer sustainable. On March 18, 2013, he was given two years of working notice ending on March 22, 2015. He worked until that date and then commenced his claim on December 21, 2015. On a motion for summary judgment, the judge found that the limitation period began to run on the day he was provided notice, March 18, 2013, not the last day he worked. The Court of Appeal confirmed that this was the correct approach to take.
The take away from these decisions is that both employers and employees should be aware of when the notice of termination was given. If the notice is clear and unequivocal, the clock starts to run. Employees who wait too long may find themselves shut out of an otherwise meritorious claim. Similarly, employers should be cognizant that an employee’s attempt to enter into protracted settlement negotiations does not stop the limitation clock. As long as the employer does not take steps that might support a discoverability argument under section 5(1)(b) of the Limitations Act, this may be a strong defence to raise.
The plaintiff’s claim relates to a slip and fall that occurred, in a washroom, at Casino Rama on February 16, 2015. The plaintiff did not notice that the floor was wet, as she entered the washroom, but admitted she did notice a custodian and a yellow caution sign on the floor. The plaintiff claims that the floor was wet and slippery, which caused her to fall.
Casino Rama’s position was that the plaintiff had failed to provide any direct evidence that there was an unsafe condition and, rather, she had “rationalized the explanation for the fall.”
The court relied on the Hamilton v Ontario Corporation 2000533 decision where the court granted the defendant’s motion for summary judgment. In this decision, the plaintiff “subjectively believed” that her fall was caused by a slippery vinyl floor in the corridor outside of her apartment, but was unable to provide any objective evidence of anything that could have caused the floor to be slippery. Further, there was no evidence of a general lack of maintenance in the corridor that could give rise to a determination of an unsafe condition to which the plaintiff’s fall could be connected, causally, or by reasonable inference.
In Rietta the court agreed with the plaintiff’s assertion that her case differs from the Hamilton decision in that there are two objective facts: the presence of the custodian and a yellow caution sign in the washroom. The court felt that these facts gave rise to a triable issue and the defendant’s motion was dismissed.
This decision makes it clear that no evidence of a substance or debris in the area of a fall will not be enough to be successful on summary judgment. Objective evidence of “something” that could have caused an unsafe condition will create a triable issue. This decision also reiterates that solid maintenance logs confirming regular patrolling are key for defending slip and fall cases.
Still looking for the perfect Father’s Day gift? Can’t find that special tie that says “I love you Dad”?
Stop looking and get Dad the gift that says “You’re the best Dad ever!” by giving him his very own copy of Auto Insurance Coverage Law in Ontario.
Think of those frequent moments when Dad would rather skip a round of golf to read about what makes a motor vehicle an “automobile”. Or when he would prefer to pass on poker night so he can sit in his favourite chair and read the latest on the territorial limits of Ontario’s automobile insurance policy.
Read what one lucky dad had to say:
I remember Father’s Day 2017 like it was yesterday. It was sunny. There was a brisk northwesterly wind. The neighbour was mowing her lawn. The local children were playing street hockey. Brooks Koepka won his 1st major with a 16-under par 272 round at Erin Hills, Wisconsin.
I was bummed. My family didn’t take me out for brunch and I was starving. The Jays game was sold out. My pub ran out of Guinness.
All was lost. A bust. Worst Father’s Day ever.
But then, straight out of left field, my youngest called me into the den. My family was sitting on the couch. The kids gave me a wrapped gift.
It was a rectangular, slightly bendable object. It was three dimensional, measuring roughly 9 inches long, 6 inches wide, and half an inch thick.
I suspected it might be a book.
I started ripping the wrapping paper. My wife reminded me to go slowly so we could reuse the giftwrap. I could feel the sweat beading down my brow as I started peeling away the layers of what seemed like an endless amount of paper. The anxiety was overwhelming.
As that last layer of wrapping paper peeled away, I could see what appeared to be an image of a gargantuan yellow umbrella covering a red car.
Could it be? Was it?
My very own copy of Auto Insurance Coverage Law in Ontario!!!!
I LOVE my children!!!
Imagine the opportunity to spend a relaxing summer evening with Dad at the cottage, sitting by the camp fire, and reading about direct compensation property coverage under section 263 of the Insurance Act. The birds begin to sing that sweet summer song. The evening air smells like warm apple pie. And just when the moment couldn't be any more perfect, Dad reads out loud:
In 1990, Ontario decreased the need for litigation for property damage claims by removing the right to pursue a court action against other parties. The province introduced s. 263 of the Insurance Act, a direct compensation system for property damage claims. It is referred to as “direct compensation” because it focuses on the insured collecting insurance proceeds directly from their own insurer; the insured no longer has a right to pursue other parties who were at fault for the accident. As a result, the insurer cannot pursue these claims either. Indeed, the insurers’ subrogated claims under the old system were derived from the insureds’ own rights of action.
Make June 17, 2018 a day to remember for Dad. Say "Happy Father’s Day Dad" with the gift he’s always wanted! Order your copy of Auto Insurance Coverage Law in Ontario today and let Dad know that you are no longer a “dependant”, as that word is defined in section 3 (1) of the Statutory Accident Benefits Schedule.
The son of a plaintiff lawyer, Daniel decided in law school that he wanted to work for the insurance industry. Read more...
A priority dispute between Wawanesa, Northbridge and Allstatearose following the death of an insured truck driver. The truck driver had a policy of insurance on his personal vehicle (Allstate) and a policy of insurance on his work truck (Northbridge). His wife also had a policy of insurance on her personal vehicle (Wawanesa). As such, the truck driver (and his wife and children) were “insured persons” under all three policies.
In this priority arbitration, Arbitrator Samworth had to address two main questions:
Are death benefits “derivative”, i.e. do they flow from the status of the insured person who dies as a result of an accident?
When an insured submits an OCF-1 to an insurer, have they exercised their discretion to choose from which insurer they wish to claim benefits?
The arbitrator answered question 1 in the affirmative. She agreed that, based on the language of the SABS, the policy that must fund a death (or funeral) benefit claim is the policy that insures the person who dies (in this case, the truck driver). As noted above, the truck driver was insured under all three policies and, normally, would be able to choose from which insurer to claim benefits.
However, section 268 (5) of the Insurance Act provides that, when an insured person is both an occupant of a vehicle and also an insured under the policy covering that vehicle, then that policy is the priority policy. Therefore, in this case, there was no choice to be made: Northbridge was the priority insurer to pay the truck driver’s death benefits claim, as it insured the vehicle in which he was an occupant at the time of the accident.
The arbitrator answered question 2 in the negative. In this case, the truck driver’s wife and children submitted claims for psychological benefits to Wawanesa and the initial claim documentation indicated that they were not aware of any other policies.
She considered the wording of section 268 (5.1) of the Insurance Act and stated that it was clear that, in order for this section to be applicable, there must be "more than one insurer against which a person may claim benefits”. She went on to confirm that, if an insured submitting an OCF-1 is not aware that they can claim against other policies, then they cannot be said to have made a “choice” between policies.
The arbitrator also noted that the right to choose is an important consumer right and an insured must have adequate information and a reasonable opportunity to make a choice. As such, she concluded that the truck driver’s wife and children were now entitled to choose from which insurer (i.e. Wawanesa, Allstate or Northbridge) to claim psychological benefits.
This case confirms that, when it comes to priority, an insured person’s choice may not always be straightforward and sometimes there is no choice at all if the insured was unaware of all of his or her choices! Therefore, if a claimant is an “insured” under more than one policy, insurers should put the other insurer on notice and investigate whether the insured person is (i) able to make a choice, and (ii) has made an informed choice.
Julianne defends insurance claims covering all aspects of general insurance liability including motor vehicle accidents, occupiers’ liability, slip and falls, subrogated losses and general negligence claims. Read more...
The Ontario Court of Appeal’s recent decision in Martin v. Barrie (City) reaffirms that, in occupiers’ liability cases, the applicable standard is not one of perfection, but of reasonableness.
This appeal arose from an incident occurring in February 2011 at Winterfest, which was an event hosted by the City of Barrie. Winterfest attracted approximately 20,000 to 25,000 people over a two-day period. Many of the attendees were families with children. The Plaintiffs in this case, Andrea and Errol Martin, attended Winterfest along with their two young children.
A snow slide was specifically made for attendees at the festival. The slide was on a gradually sloped hill. It was not steep or tall. Users of the slide were to proceed down on their bottoms as opposed to using sleds or toboggans. Although it was intended to be used primarily by children, adults were permitted to go down the slide as well. In this case, Mrs. Martin accompanied her two children to the top of the slide, who went down the slide without any incident. Mrs. Martin allegedly told a City attendant that she did not want to go down the slide, but was told that she could not go back down the stairs she used to come up and that the slide was the only way down. She ultimately went down the slide. As she approached the bottom, she dug her heels in to slow herself down for fear of striking the safety fence at the end. Her buttocks then struck a chunk of ice that was protruding from the snow-covered slide, resulting in a tailbone injury. Mrs. Martin only saw the chunk of ice after she looked back. She allegedly heard someone say, “I have to fill this in again,” but it was unclear whether these words were uttered by a City employee. She also saw the same person kick snow to fill in the spot where the chunk of ice came from.
The trial judge dismissed the Plaintiffs’ claims on the basis of his finding that the Defendants had not breached the standard of care set out in s. 3(1) of the Occupiers’ Liability Act. Although he recognized that occupiers have a positive duty to take reasonablesteps to make the premises reasonably safe for those who enter it, he reiterated the leading case law that this duty is not an absolute one and that the occupier should not be considered an “insurer”. Just because a hazard exists does not necessarily mean that the occupier has failed to meet the standard of care, even in cases where the injury is catastrophic. The trial judge also specifically took issue with Mrs. Martin’s credibility in response to her testimony that she was instructed to proceed down the slide by City staff. Ultimately, considering the context, the trial judge found that the City took adequate and reasonable steps to safeguard the attendees using the snow slide at Winterfest.
Mr. and Mrs. Martin appealed on three grounds, all of which were rejected by the Court of Appeal:
1. The trial judge did not err in concluding that the ice chunk in question was “small”
Ms. Martin herself admitted that she did not see the ice chunk at any time before she struck it and described it as about four to six inches in size. According to the Court of Appeal, the trial judge’s characterization was entirely justified.
2. The trial judge did not err in refusing to infer liability from the City employee’s alleged comment (“I have to fill this in again”)
The Court of Appeal was also not persuaded that the City employee’s comment after the incident meant that the trial judge should have inferred liability on the part of the City. Instead, it supported the Defendants’ position that the City employee was paying close attention to the condition of the landing and filled in gaps and patches as would be expected.
3. The trial judge did not err in finding that the City met the requisite standard of care
The Appellants argued that, by inviting the public to ride the slide, the City failed to have “a system of regular inspection and maintenance of the run-off area of the busy slide”. The Court of Appeal disagreed. While a more rigorous inspection process and the use of a rake to comb the landing might have revealed the ice chunk before the incident occurred, this would equate to a standard of perfection and place too high an onus on the City.
The Court of Appeal’s decision gives us two important reminders: (1) occupiers’ liability cases are highly fact-specific and (2) credibility is key. Occupiers are not expected to be perfect. Even a reactionary system of maintenance can be appropriate, such as in this case. The bottom line is that the standard of care must be interpreted flexibly to reflect the particular circumstances in each case. The analysis will always come back to the specific facts and an assessment of credibility.
Krista has a diverse insurance law practice which focuses on bodily injury litigation, including general negligence/liability claims, motor vehicle accidents, commercial general liability, homeowners’ liability and occupiers’ liability, as well as priority/loss transfer disputes between insurers. Read more...
Apple watch leads to distracting driving conviction.
A recent Ontario Court of Justice case brings to light a new distracted driving concern – Apple wrist watches. Ms. Ambrose was convicted of “drive hand-held communication device” – really, distracted driving - after she was observed looking at her watch on several occasions while operating a vehicle. The police officer testified that as he was stopped beside the Defendant at a red light, he noted a glow from a handheld device. The officer observed her look up and down approximately four times. When the light turned green, the two cars in front of the Defendant moved forward but she did not. When the police officer turned on his spot light, she started to drive forward.
After the officer pulled over the Defendant, he learned that the handheld device was her Apple watch. While she testified that the watch was not connected to her phone, the Court found that whether it was actually connected to another device at the time of the offence was not a determining factor. It was the holding, or use of the device, that the Court must examine. Ms. Ambrose claimed that despite the capabilities of the watch, she was only checking the time which required touching the screen to activate and deactivate it. The Court noted that she did this instead of using the clock in her vehicle.
The Court found that the law was clear – driving occurs even when motor vehicles are stopped at a red light. As such, the evidence established that the Apple watch was used while the Defendant was driving a motor vehicle on a highway. The key was determining whether she was distracted. On this point, the Court found that it was “abundantly clear” from the evidence that the Defendant was distracted. She was looking up and down repeatedly over the 20 seconds that the officer observed her. In addition, she didn’t start driving when the light turned green. It was only when the floodlight illuminated the vehicle that she started to drive. The Court rejected the argument that the Defendant was checking the time because it was inconsistent with the officer’s observations.
Finally, the Court noted that even though the watch was smaller than a cellular phone, it was a communication device capable of receiving and transmitting electronic data. Specifically, the Court held “[w]hile attached to the defendant’s wrist it is no less a source of distraction than a cell phone taped to someone’s wrist. It requires the driver to change their body position and operate it by touch.”
This case is important for personal injury claims. During interviews, discoveries and trials, the use of all handheld devices (which now include smart watches) should be explored to determine whether a party was distracted at the time of the accident and thus negligent.
It takes little effort to identify the international behemoth that was recently scrutinized for disclosing its users’ personal data (*cough* Facebook *cough*). As of today, many business, big and small, have the potential to be vilified and fined for the same type of inadvertent disclosures. The key distinction between Facebook and other companies are their resources to deal with the fall out such a disclosure.
What does it do?
The GDPR was developed in 2016 and intended to take effect this year. The Regulation aims to protect people’s information when it is shared with businesses. It also allows people to permit or deny the distribution of personal data with third parties. The Regulation places certain disclosure requirements on entities to inform their users of a potential breach.
Although this is a European regulation, it affects businesses that operate out of a European signatory state marketing to a foreign country (i.e. Canada), or a foreign business marketing to and operating within a European signatory state. In essence, any company that seeks to advertise to an international population, which by using the Internet most companies do, they must comply with the requirements set out in the GDPR.
Failure to comply
The failure to comply with the GDPR can lead to severe consequences. One of them is a fine of up to €20 million. The GDPR also allows signatory states to implement their own regulations to ensure compliance. Another significant repercussion is the potential of lawsuits stemming from a data breach. The GDPR establishes a standard of care that business must meet. Failure to satisfy this standard, will expose business to not only fines but financially devastating legal actions.
The “big” insurance companies like Chubb, Lloyds, and Northbridge are beginning to offer comprehensive cyber insurance policies to businesses. Other new companies such as Boxx Insurance have started to exclusively offer cyber insurance policies to small and medium sized businesses.
Cyber insurance policies are designed to protect businesses when a data breach occurs, and may include coverage for fines, legal services, and PR services.
Insurance adjusters’ will soon be confronted with a significant number of claims originating from cyber policies. Adjusters must be ready to not only ensure that their clients are protected but that the insurer is not being defrauded.
Adjusters will have to undergo technical training to verify that their clients are compliant with not only the GDPR but also with the requirements of their insurance policy. It will also be imperative that adjusters identify technical “red flags” that may signal a fraudulent claim.
Striking this balance will be difficult but necessary.
Companies like Facebook can rebound from a data breach given their vast pool of resources, however, small business can go bankrupt from a single cyber-attack. As a result of this dichotomy, cyber insurance policies will continue to develop and may soon be as common as an auto insurance policy. Insurance companies and their adjusters must be prepared to understand and “speak the language” of their consumers to meet their needs and expectations.
Stas practices in insurance-related litigation. He has a broad range of experience including tort claims, accident benefits, subrogation, priority and loss transfer disputes, WSIB matters, and fraudulent claims. Read more...
In January 2012, the plaintiff was walking along the sidewalk in front of a newly built home when she allegedly tripped over the bottom of a construction fence that was covered in snow and fell into a depression in the road next to the sidewalk, injuring her ankle. She sued the homeowners, the builder, as well as Enbridge, who supplied the gas line to the home, and Link-Line Contractors Ltd., the contractor hired by Enbridge to install the line.
Enbridge and Link-Line brought a partial summary judgment motion to have the action and crossclaims against them dismissed. The Superior Court dismissed their motion.
Specifically, Enbridge and Link-Line argued that there was no genuine issue for trial because the plaintiff and co-defendants had failed to establish, based on the best evidence offered by them, that Link-Line’s work caused the depression in the road. They also argued that summary judgment should be granted as the parties failed to provide any expert evidence on the standard of care.
The Court held that, in summary judgment motions related to a professional negligence action, a defendant cannot rely on the plaintiff’s failure to proffer expert evidence unless the defendant has also put their best evidentiary foot forward. Only where the defendant discharges its burden of proving that there is no genuine issue on the merits of the defence does the burden shift to the plaintiff. In this case, Link-Line did not provide any evidence regarding whether its actions met the standard of care such that the evidentiary burden never shifted to the plaintiff or co-defendants.
The Court also found that the evidence offered by the parties did not allow for dispositive findings, which yielded a high risk of re-litigation and the prospect of inconsistent results. Since Link-Line’s crews of employees would likely be subpoenaed at trial, granting the partial summary judgment motion would also not allow for a fair and just resolution of the case or avoid the cost and expense of the trial process.
Key takeaway: If you are a defendant in a professional negligence action and want to bring a summary judgment motion, make sure you have your own ducks in a row before trying to point the finger at the plaintiff or a co-defendant. The right case will warrant obtaining your own expert report on how your actions met the applicable standard of care.
Shalini defends insurance claims covering all aspects of general insurance liability including motor vehicle accidents, occupiers’ liability, slip and falls, as well as accident benefits litigation and arbitration and priority and loss transfer disputes.
In the recent decision of Helmer v. Belairdirect Insurance Company, the Divisional Court dismissed the appeal a LAT adjudicator’s decision addressing the contentious issue of when professional service providers provide care “but for the accident” in the context of the Statutory Accident Benefits Schedule 2010 (“SABS”).
The issue of “but for the accident” was the central issue in dispute. In the present scenario, the claimant’s care provider was properly qualified as a personal support worker (“PSW”) prior to the accident. It was unclear whether she had been working in the capacity of a PSW until she began providing care for the claimant after the accident. At first instance, the LAT adjudicators found that the service provider was a professional.
Under the SABS, attendant care benefits provide reimbursement for expenses incurred to provide claimants with attendant care services. Due to legislative amendments in 2014, there are two classes of service providers who qualify for reimbursement. They are professionals (such as a PSW) and non-professionals who have sustained an economic loss by providing care. The SABS requires that for someone to be a “professional” they must be providing care “in the course of the employment, occupation or profession in which he or she would ordinarily have been engaged, but for the accident”.
Macleod J., speaking for the Court, addressed two main issues. First, the Court confirmed that the applicable standard of review for appeals from the LAT to the Divisional Court was reasonableness. Notably, the Court found that even if the standard was one of “correctness” they would have still upheld the decision.
Second, he considered the adjudicator’s analysis of section 3(7)(e)(iii)(A) and its application to professional service provider. In addressing this issue the Court agreed with the adjudicators’ decision. It was their conclusion that section 3(7)(e)(iii) (A) required that the service provider was working or was looking for work at the time s/he performed the attendant care services, not at the time of the accident. The phrase “but for the accident” did not have a temporal requirement. The Court noted the intention of the section was to prohibit injured parties from capitalizing on their injuries by inventing jobs for friends and family members who were not legitimate providers of care. As long as the care provider would have been providing such services whether or not the applicant had been injured, then the claimant could be reimbursed for payments made.
On a positive note, this decision suggests that the LAT and the Courts are aware of the concerns regarding improper classification of “professional” service providers. Insurers should feel comfortable asking for additional information from claimants to establish whether service providers are appropriately classified as “professionals”. Secondly, this decision suggests that the characterization of a professional requires something more than simply having the qualifications to provide care. A provider must be actively working or looking for work. Accordingly, situations where an individual is qualified but otherwise engaged in another occupation at the time a claimant needs care may not meet the “but for the accident” requirement.
Does Uber’s fleet policy with Intact provide primary accident benefits coverage to passengers who do not have their own auto insurance policies? The first arbitration decision on this issue says “yes”.
In July 2016, FSCO approved a new standard fleet auto policy to provide primary coverage for private passenger vehicles engaged in “ridesharing” activities with a “transportation network company” or TNC. Intact Insurance then issued the fleet policy to Uber and Rasier Operations B.V., which contracts with individual “rideshare drivers” who use their own automobiles for Uber.
The policy was created to address a coverage gap in the standard OAP 1 auto policy in Ontario. Section 1.8.1 of the OAP 1 excludes coverage if the vehicle is being used to carry paying passengers. This meant that every time an Uber driver was operating a vehicle and engaged in Uber activities, he or she was violating the OAP 1 and driving without full coverage.
The policy purports to fill the coverage gap in the OAP 1 by eliminating the exclusion for “carrying paid passengers” noted in Section 1.8.1. Section 2 of the Endorsement under the policy (IPCF-6TN), specifies that the policy provides “primary coverage” for the automobile while it is being used for ridesharing purposes:
Ontario’s Accident Benefits Priority Scheme
Subsection 268(2) of the Insurance Act sets out a priority scheme for determining which insurer is responsible for paying a claimant statutory accident benefits after an automobile accident:
The claimant first has recourse against the insurer of an automobile in respect of which they are “an insured” (i.e., named insured, spouse, dependant, listed driver).
If recovery is unavailable under such policy, the claimant has recourse against the insurer of the automobile that they were in or which struck them.
If recovery in unavailable under such policy, the claimant has recourse against the insurer of any other vehicle involved in the accident.
Finally, if recovery in unavailable under such policy, the claimant has recourse against the Motor Vehicle Accident Claims Fund.
Ontario’s Priority Scheme and Uber
After Intact’s “Uber policy” was released, there was never any doubt that an Uber driver injured in an accident while driving for Uber would have recourse first against Intact, under the Uber policy, pursuant to section 2 of the Endorsement. There was also no question that a passenger who happened to have their own auto policy would have recourse against that policy for their accident benefits, pursuant to section 268 (2) of the Act.
However, Intact started taking the position that its policy did not provide “primary coverage” to passengers. Intact asserted that the second paragraph in section 2 of the Endorsement specifies that “for greater clarity…” Intact would be primary over any other policy insuring the rideshare driver. According to Intact, it followed that the policy was primary only with respect to the driver’s claims and not the passenger’s claims.
Intact also argued that any Uber vehicle was insured by two insurers at the time of an accident: The underlying insurer of the vehicle and Intact. Therefore, Intact asserted that passengers, who did not have their own policies, at the very least, would have coverage under both policies.
The First Uber Decision
In Northbridge v. Intact, the claimant passenger was involved in an accident while he was using an Uber to get from Point A to Point B. He applied to Northbridge for accident benefits, seeking recourse against the (underlying) insurer of the vehicle he was in. Northbridge then pursued a priority dispute against Intact, who took the position that it was not the primary payor of the passenger’s benefits.
Arbitrator Vance Cooper sided with Northbridge, finding that the wording in the Endorsement was clear, unequivocal, and unambiguous that the policy was primary for all accident benefits claims arising from passengers who did not have their own insurance:
However, the grant of coverage set out in Section 2. of IPCF 6TN - Coverage for Ridesharing Endorsement, goes further. It clearly, unequivocally and without ambiguity specifies that Intact, as the ridesharing insurer, provides primary coverage for the automobile only while the automobile is used in the pre-acceptance period and the postacceptance period. While Section 2 provides "greater clarity" for purposes of the rideshare driver's accident benefits coverage and the priority of third party liability coverage, this does not limit the grant of coverage specified in Section 2.
I am satisfied, on a plain reading of IPCF 6TN - Coverage for Ridesharing Endorsement, that Intact provides primary coverage for statutory accident benefits in relation to the claim of Romello B., being an occupant in the rideshare vehicle during the postacceptance period and by reason of Ramella B. having no access to any other policy of insurance (apart from the Northbridge policy).
Arbitrator Cooper also disagreed with Intact that the passenger could choose as between Intact and Northbridge. He held that Intact’s argument ignored the clear and unambiguous wording in the Endorsement, since it specifies that Intact is primary.
In my "humble" opinion, Arbitrator Cooper’s decision is right on the mark. Not only does it pay homage to the clear wording in the policy; it is consistent with the primary purpose of the policy, which is to fill the coverage gap in auto insurance during Uber activities. It also protects underlying insurers from paying benefits arising from risks they never intended to cover.
We expect Intact will appeal Arbitrator Cooper’s decision. In the interim, the Northbridge decision is a huge victory for underlying insurers, especially for those who not have any appetite for Uber risks.
My office is currently involved in several other arbitration cases against Intact on the same facts. Another hearing against Intact on the same facts is scheduled for June 18, 2018 before Arbitrator Philippa Samworth.
The Uber Coverage Debate appears to be far from resolved.