Case Summary: Insured v Uninsured Vehicles

CASE SUMMARY
Alyssandra Dunn

Re: Eva Janousek (Applicant) and Halifax Insurance Company, Canadian Surety Company, Liberty Mutual Insurance Company (Insurers) and Motor Vehicle Accident Claims Fund

Review of Facts

– On August 14, 1993, Ms. Janousek, a pedestrian, was struck by an uninsured vehicle driven by Shawn Montreul
– After hitting Ms. Janousek, the vehicle also struck a nearby parking lot fence
– The debris from the fence damaged three unoccupied vehicles in the parking lot
– These vehicles were insured by Halifax Insurance Company, Canadian Surety Company and Mutual Insurance Company
– None of the three vehicles came into contact with Ms. Janousek or the uninsured vehicle
– As Ms. Janousek had no automobile insurance of her own to access for payment of accident benefits she submitted a claim for benefits with the Motor Vehicle Accident Claims Fund (MVACF)
– Originally the MVACF accepted the claim but on March 24, 1994 the payments ceased as the Fund believed that one of the three insurance companies should be responsible for the payments
– All three companies received an application for accident benefits for Ms. Janousek but denied the claim
– The insurance companies were not able to come to an agreement and resolve disputes through mediation
– Ms. Janousek then applied for arbitration under the Insurance Act, R.S.O. 1990, c. I.8.

Key Issue

– Which insurer is responsible for paying any statutory accident benefits to which Ms. Janousek may be entitled?

Relevant Laws and Statutes

– Motor Vehicle Accident Claims Fund payable under Ontario Regulation 672
– Insurance Act, R.S.O. 1990, c.I.8

Decision

MVACF is responsible for paying any statutory accident benefits to which Ms. Janousek may be entitled.

Reasons for Decision

Subsection 268(2) of the Act:
(2) The following rules apply for determining who is liable to pay statutory accident benefits:
2. In respect of non-occupants,
i. the non-occupant has recourse against the insurer of an automobile in respect of which the non-occupant is an insured,
ii. if recovery is unavailable under subparagraph i, the non-occupant has recourse against the insurer of the automobile that struck the non-occupant,
iii. if recovery is unavailable under subparagraph i or ii, the non-occupant has recourse against the insurer of any automobile involved in the incident from which the entitlement to statutory accident benefits arose,
iv. if recovery is unavailable under subparagraph i, ii or iii, the non-occupant has recourse against the Motor Vehicle Accident Claims Fund.

It was decided that Ms. Janousek did not fall under (i) as she did not possess any automobile insurance of her own and she did not fall under (ii) because the automobile driver and vehicle that struck her also was uninsured. The Judge then had to determine whether or not the insurance companies of the three other vehicles involved in the accident had a responsibility to pay Ms. Janousek’s accident benefits.

In order for any of the insurance companies listed to be responsible for paying the accident benefits of the victim, each of the insured vehicles had to have caused her injuries. It was decided in this case that the three insured vehicles did not cause, directly or indirectly, any of the injuries that Ms. Janousek suffered therefore she is not entitled to statutory benefits under the specified insurance companies policies. In this case Ms. Janousek has recourse against MVACF to pay her statutory accident benefits.

Signficance

This case is significant because under the Act Section 268(2) there has been no amendments and the rules are still the same as to who is responsible to pay statutory accident benefits to insured and uninsured persons.

Alyssandra Dunn is a Paralegal student at Centennial College in Toronto studying professional communications with Omar Ha-Redeye.

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