Successful Priority Dispute Arbitration

Successful Priority Dispute Arbitration

Viktoria Anteby of Reisler Law PC was recently a successful Respondent on behalf of Echelon General Insurance Company in a priority dispute arbitration with Aviva Insurance Company of Canada. The dispute involved a determination as to which insurer stands in priority to pay statutory accident benefits to the claimant Luis Jorge, with respect to injuries sustained in a motor vehicle accident on December 5, 2015. The proceeding was heard over the course of two days by Arbitrator Kenneth Bialkowski.

Here are some of the relevant facts:

Mr. Jorge has first purchased insurance with Echelon Insurance in 2006. In or around September 30, 2014, Echelon discovered several of the insured’s traffic convictions and a determination was made not to renew the policy effective December 10, 2014.  This resulted in a non-renewal letter being sent to Mr. Jorge by Echelon, by regular mail on October 28, 2014.

The broker file from Riders Plus confirmed that there was a conversation that took place with the insured on November 3, 2014 advising him that the policy would not be renewed. Log notes confirmed that the insured understood that it would be necessary to place insurance through another broker. The broker also sent a letter indicating same. The letter was dated November 3, 2014 and was also sent by regular mail.

At the time of the accident, the insured testified that he believed he was insured under a valid policy of automobile insurance issued by Echelon. This was despite not being administered new pink slips in 2014 and not having premium payments deducted from his bank account. His claim was that he never received any telephone calls, letters, e-mails or faxes or any contact from Echelon advising him that the policy was being cancelled. The insured’s spouse was insured with Aviva. As such, the dispute boiled down to the validity of the Echelon non-renewal.

The central issues in the dispute were:

  1. Is an insurer required to send the notice of non-renewal via registered mail?
  2. If registered mail is not a requirement, does the evidence support that the non-renewal was sent to the insured?

Competing positions were advanced on the issue of whether non-renewals are to be sent by registered mail. Arbitrator Bialkowski decided that the non-renewal requirements are set out in s.236 of the Insurance Act. As a result, it was found that the notice of non-renewal need only be sent in writing with no requirement that it be sent by registered mail or personally delivered.

Despite conflicting evidence, Arbitrator Bialkowski was satisfied that on the balance of probabilities, notice of non-renewal was sent by both Echelon and Riders Plus to the insured’s last known address.

On the basis of the above findings, it was ordered that Aviva was the priority insurer. This decision included a costs award in favour of Echelon.

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