Siskinds LLP’s personal injury lawyer, Mariana Peres Toledo, was recently published in The Lawyer’s Daily. In this article, Mariana examines two types of automobile insurance policy’s, mandatory coverage and optional accident benefits coverage.
This article was originally published by The Lawyer’s Daily (www.thelawyersdaily.ca), part of LexisNexis Canada Inc.
Read the full article below.
Mariana Peres Toledo – The Lawyer’s Daily – Posted: June 8, 2022
Every motor vehicle insurance policy in Ontario covers at minimum mandatory accident benefits. An insured, based on their needs, may opt to increase their coverage by purchasing optional accident benefits. Optional benefits do not have to be purchased in a bundle; an insured can choose which benefits they would like to have.
A table provides an overview of some differences between the benefit under mandatory and optional accident benefits coverage; to see the table, click here.
Generally, as shown in the table, optional benefits increase the monetary amount that one may claim for a benefit. Optional benefits have yet another particularity: they are portable. (The portability feature is very much evident in the OPCF-47 endorsement, the document which an insurer must issue whenever an optional accident benefit is purchased. See: Financial Services Commission of Ontario Bulletin: “Understanding the operation of OPCF 47 — Optional Accident Benefits.”)
They are called portable because they follow the insured person, their spouse, dependants and any listed drivers on the policy, not the automobile. Having optional benefits allows the person to claim mandatory and optional benefits from the insurer from whom they have purchased the policy, regardless of the priority rules described under s. 268 of the Insurance Act.
Subsection 268(2) of the Insurance Act states that generally, an occupant of an automobile involved in a crash may apply for statutory accident benefits in the following order:
- Against the insurer of an automobile in respect of which the occupant is an insured;
- Against the insurer of the automobile in which he or she was an occupant;
- Against the insurer of any other automobile involved in the incident from which the entitlement
to statutory accident benefits arose; - Recourse against the Motor Vehicle Accident Claims Fund.
Similarly, non-occupants of a motor vehicle who have been involved in a crash may apply for
statutory accident benefits in the following order:
- Against the insurer of an automobile in respect of which the non-occupant is an insured;
- Against the insurer of the automobile that struck the non-occupant;
- Against the insurer of any automobile involved in the incident from which the entitlement to statutory accident benefits arose;
- Against the Motor Vehicle Accident Claims Fund.
For instance, a person may be insured under two automobile policies (e.g., under a personal vehicle and work vehicle) but only one of these policies has optional benefits in addition to the mandatory accident benefits. Despite what s. 268 of the Insurance Act states, this individual may claim accident benefits from whatever policy they choose.
This situation was specifically dealt with by the Ontario Court of Appeal in March 2022 in the decision Continental Casualty Company v. Chubb Insurance Company of Canada 2022 ONCA 188. In this case, the individual was jogging when hit by a pickup truck. He suffered catastrophic injuries as a result of the collision. Under his personal motor vehicle policy, he had only mandatory accident benefits. However, he was deemed by the court to be insured under his employer’s automobile policy. This allowed him to have access to the optional benefits present on that particular policy.
Another example would be spouses who each have their own vehicle and separate policies. Let’s say that they had purchased complementary optional benefits. If the spouse who had not purchased the optional income replacement benefit was injured in a crash and could no longer return to work due to the injuries sustained, this person could still access the policy of their spouse, and therefore have access to the optional income replacement benefit.
It is crucial to note that a person will have to choose between one of the two policies, as opposed to choosing different benefits among the two policies. Only one policy can respond to a claim for accident benefits.