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January 2020

Location of Loss

Case Study: Benson v. Belair Insurance Company (2019 ONCA 840)

Van Krkachovski
Van Krkachovski,

Theresa Hartley
Theresa Hartley,

By Van Krkachovski and Theresa Hartley

This case involves two accidents involving two recreational off-road vehicles – an all-terrain vehicle (“ATV”) and a dirt bike – heard together because they raise the same jurisdictional issue at law.

In Perneroski v Echelon (2018 ONSC 2297), Mr. Perneroski suffered a traumatic brain injury while riding a dirt bike along a closed track at a sports resort located in Georgia, USA. At the time of the accident, Mr. Perneroski was the owner of a standard OAP policy. After the accident, Mr. Perneroski submitted an application for statutory accident benefits, which was subsequently denied by his insurer on the grounds that a the dirt bike was not an “automobile” pursuant to the policy, and that as a result, the subject incident was not an “accident” as defined under the Statutory Accident Benefits Schedule.

In the second matter before the Court, Benson v. Belair Insurance (2019 ONSC 1415), the appellant was an Ontario resident in British Columbia, who while seated as a passenger on an ATV fell off and suffered a severe brain injury. The ATV was not required to be insured pursuant to the laws of British Columbia. In a manner analogous to Perneroski, the appellant was a named insured under a standard OAP policy – a policy that did not list an ATV as an insured vehicle.

As a result, the appellant's application for statutory accident benefits was denied on the grounds that since the subject accident occurred in British Columbia, the question of whether an ATV constitutes an “automobile” under the policy was to be considered solely under the laws of British Columbia, which do not list ATV's as insured vehicles.

The issue before the Court was whether Ontario's statutory accident benefits regime applies differently if the subject accident occurs outside of Ontario. Coverage in both of the above cases was denied on the basis that the vehicles – the ATV and dirt bike – were not “automobiles” for the purposes of Ontario's statutory accident benefits regime, as they were not required by law in either the province of British Columbia or the state of Georgia to be insured.

The Court of Appeal found that Ontario law – and therefore the Ontario statutory accident benefits regime – ought to apply equally for accidents that occur both inside and outside the province. The Court of Appeal decided that there ought to be no differentiation based on the location of the loss. The SABS Regulations make it clear that if someone is an insured under a policy, they are covered for incidents in the insured automobile or “another automobile”. An insured under a policy ought to expect coverage if the accident occurs in an automobile “within the extended definition”.

Read the full decision or read other Case Summaries for January:

  1. A Duty of Good Faith is Foundational
  2. A power outage may not qualify for damage on premise

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