The Ontario Court of Appeal upheld the decision of Judge Nordheimer in Lombard General Insurance Company of Canada v. Allstate Insurance Company of Canada (2000) O.J. 3805, O.S.C. in an endorsement on May 3, 2001. The panel was comprised of Justices Laskin, Sharpe and Simmons. In Lombard, Judge Nordheimer considered three cases where he was asked to determine whether a person who is injured while driving a company vehicle, is to be paid statutory accident benefits by the insurer of the company vehicle or by the insurer of the injured person's personal vehicle (p. 1). He concluded that the insurer of the company vehicle was responsible for the payment of the statutory accident benefits. In making his decision, he cited with approval the decision of Madame Justice Lax in AXA Insurance (Canada) v. Old Republican Insurance Company (1998), 38 O.R. (3d) 630 (Gen. Div.), which considered the equivalent section under the SABS 1994:

Section 91(4) now provides that the individual "shall be deemed to be the named insured under the policy insuring the automobile for the purpose of payment of the statutory accident benefits set out in this Regulation" (emphasis added). I do not think that this language is susceptible to any interpretation other than that the legislation intended that regular users of company cars were to be treated as if they were owners (who invariably are "named insureds") and that priorities as between insurers would be determined accordingly (p. 3).

Judge Nordheimer found nothing in the material before him "to suggest that the Legislature intended to restrict or constrain the interpretations that had been given to s. 91(4) under the immediately preceding regime" and found that the approach taken by Madam Justice Lax in Axa (supra) was equally applicable to the proper interpretation of s. 66(1) under the SABS-1996 (p. 4).

On June 11, 1999, Rick and Shirley Hisson lost their seventeen year old daughter, Becky Joe, in a tragic motor vehicle accident (Hisson and Zurich, A00-000905, May 15, 2001). Zurich Insurance paid a $10,000 death benefit to Shirley Hisson under s. 25(2)(5)(i) of the Schedule. A claim was made for a further death benefit of $10,000 for Rick Hisson, which was denied by Zurich. The insurer took the position that s. 25(2)(5)(i) authorizes only one single payment of $10,000 and as it had made a payment to Shirley Hisson it had no further obligations under the provision. The arbitrator reviewed the court decisions John v. CIBC Insurance, (1998), Ontario Court (Gen. Div.) and Fraczek v. State Farm, (2000), Ontario Court (Gen. Div.). These cases found that the benefit was payable to only one insured (p. 7). The reasons in John and Fraczek, however, failed to ask why the Legislature would allow only one payment of $10,000 to be made to a potential group of more than one recipient, without any set method of dividing that sum between those falling within that category (p.8).

The arbitrator preferred the reasoning of Director's Delegate Naylor in Kristensen and State Farm (A98-001416), September 30, 1999 in which it was held that both parents of a deceased 16 year old were each entitled to a $10,000 death benefit, under s. 25(2)(5)(i). He found that fairness and logic supported such an interpretation. He was also persuaded on a balance of probabilities, that s. 25(2)(5)(i) allows payments of $10,000 to each person who comes within the definition of "dependant" in s.2(6) which states:

2(6) For the purpose of this Regulation, a person is a dependant of another person if the person is principally dependent for financial support or care on the other person or the other person's spouse.

A special award was denied as the case law is divided on the issue and in the circumstances the insurer could not be found to have acted unreasonably.

In Kumar, (A00-000201), April 27, 2001, the applicant, a taxi driver , was struck on the head with a rock by a passenger. The arbitrator found that the he was not injured in an "accident" as defined in s. 2(1) of the SABS - 1996. Following previous case law concerning the definition of "accident" the arbitrator found that she was required to determine first, that the incident resulted from the ordinary use or operation of an automobile (the purpose test), and second, that it directly caused the impairment (the causation test). She was satisfied that Mr. Kumar's use of his taxi-cab that night was an ordinary use or operation of his vehicle and therefore the purpose test was met.

With respect to the second part of the test, however, she was not convinced that his injuries were directly caused by the use or operation of the taxi-cab. The attack did not arise from a dispute with respect to the fare. While there was a connection between the fact that Mr. Kumar was driving a taxi-cab, which has a commercial component, and an attempt at a robbery, the arbitrator found that the use or operation of the vehicle was peripheral or incidental to the assault. Finding that the taxi-cab was merely the location of the attempted robbery, and not the cause of Mr. Kumar's injuries, she dismissed the claim for benefits.

In Abdi, (A00-000015), May 2, 2001, the TTC denied the applicant's claim for accident benefits on the grounds that he was not involved in an accident within the meaning of s. 2 of the Schedule. The arbitrator, however, found that Mr. Abdi was involved in an accident within the meaning of s. 2 of the Schedule. It was the applicant's evidence that when he went to board a bus, the driver's view of him was obscured by a woman who had entered the bus ahead of him. The doors were then closed on his leg and the bus pulled away from the stop. Mr. Abdi fell and hit his head on a pole, at which point the bus driver stopped the bus and came to his assistance. The bus driver testified that Mr. Abdi had hit his head on a pole while running to catch the bus. However, the arbitrator found the bus driver's testimony to be contradictory and self serving, remarking that the evidence of the TTC supervisor who was called to the scene would have been valuable. The TTC supervisor did not appear, although he was listed as a witness for the hearing. The arbitrator agreed with counsel for the applicant that an adverse inference should be drawn from his absence. Ultimately, the arbitrator accepted Mr. Abdi's version of events and found that his injuries were a direct result of the normal use and operation of a motor vehicle and therefore he was involved in a motor vehicle accident as defined by s. 2(1) of the Schedule.

In Chin and Coseco Insurance (A00-001024), April 8, 2001, the applicant was injured in a motor vehicle accident on May 29, 1999. Income replacement benefits were terminated on March 3, 2000 and a dispute arose with respect to the amount of the income replacement benefits to be paid and the insurer requested a repayment of benefits paid. Coseco was the insurer in both the AB and the related tort action arising from the accident. At a pre-hearing, the applicant opposed Coseco's request for discovery transcripts from the related tort action. The applicant took the position that he was not required to produce the examination for discovery transcripts because Rule 30 of the Rules of Civil Procedure, the implied undertaking rule, prevented them from being produced at the arbitration hearing. In making this argument, he relied on the decisions in Hornick and State Farm (A00-000337), November 30, 2000 and Goodman v. Rossi (1995), 24 O. R. (3d) 359.

The arbitrator held that the applicant was required to produce the examination for discovery transcripts in the tort file, stating:

With respect, I disagree with the ruling in the Hornick arbitration decision. It did not consider the powers afforded arbitrators under the Act. I find that s. 22 of the Act expressly vests in arbitrators the same powers as the Ontario Court, General Division, to among other things, order the production of documents. Section 20 authorizes arbitrators to decide any question of fact or law brought before them. I find that by extension, arbitrators have the authority to grant the relief provided by the Rule 30.1.01(8) exception to the implied undertaking rule. In exercising this power, like the courts, arbitrators should be guided by considerations of relevance, the balance between competing access and privacy rights, fairness and any possible prejudice to a party (p. 8).

In Dhawan, (A00-000031), April 20, 2001, the arbitration was dismissed, as the arbitrator found that the matter had been fully and finally settled before the arbitration hearing date. State Farm bore the onus of proving that a settlement had been reached. A claims manager testified that he received a call on his car cell phone on January 29, 2001 from Mr. Spiegel, the applicant's representative. The claims manager testified
that Mr. Spiegel demanded a figure of "X" dollars, which he rejected. The claims manager stated that he would not have participated in a discussion unless it was for a full and final settlement of all issues. He further testified that he made a counter offer of "Y" dollars and that Mr. Spiegel had ultimately agreed to settle all claims for this amount on a full and final basis. On the following day, the claims manager prepared a letter confirming the settlement and send it with a Notice of Settlement and a Release as required by s. 9.1 of Reg. 664. The letter stated that when the signed documentation was received by State Farm and the 48 hour cooling off period had expired, funds would be sent to Mr. Spiegel's office.

Mr. Spiegel submitted that the "Y dollars" figure was only a proposal and not an agreement. He also testified that the applicant had until February 2, 2001 to accept State Farm's offer, although the claims manager denied this evidence. Under cross-examination, Mr. Spiegel was asked why he had not responded to the January 30, 2001 letter, confirming or denying its contents. Mr. Spiegel responded that he had attempted to call the claims manager a number of times, but had not been able to reach him. He admitted that he had not left any messages, although he had the claims manager's office and cell phone numbers.

Mr. Spiegel also argued that as he was not a lawyer he should not be held to the same professional standard as lawyers (p. 7). The arbitrator rejected this assertion, finding that non-lawyer representatives, like lawyers, must comply with the law and honour agreements into which they enter on behalf of their clients (p. 10).
The arbitrator preferred the evidence of the claims manager to that of Mr. Spiegel, finding that his testimony had a clear and more credible ring (p. 8). The arbitrator concluded that the parties had entered into an unconditional agreement on January 30, 2001 within the meaning of s. 9.1(2) of the settlement regulation. If an applicant is to rescind an agreement during the 48 hour cooling off period, written notice is to be given within two business days after the settlement was entered into (p. 9). Given that the settlement regulation was not complied with in this regard, the arbitrator found that the settlement had not been rescinded and dismissed the arbitration.