Court interprets “insured person” under OPCF 44R

Application for summary judgment by the superintendent of Financial Services Commission of Ontario dismissing the claim of the plaintiff on the basis that the plaintiff was an insured person for the purposes of coverage under an automobile policy and was thus not entitled to seek payment of any judgment rendered in her favour out of the Motor Vehicle Accident Claims Fund (the “Fund”). The Ontario Superior Court of Justice (the “Court”) held that the plaintiff was an insured person for the purposes of coverage under the optional Family Protection Coverage Endorsement (“OPCF 44R”) and as such had no recourse to payment out of the Fund.

Graham v. Ontario (Superintendent, Financial Services Commission), [2010] O.J. No. 5602, December 21, 2010, Ontario Superior Court of Justice, K.B. Corrick J.

The plaintiff was struck by an unidentified vehicle while riding her bicycle. At the time of the accident, the plaintiff was living with her sister who had an automobile insurance policy that included an optional OPCF 44R. The plaintiff commenced an action against the Financial Services Commission of Ontario but discovered at her Examination for Discovery that she may be able to recover under her sister’s OPCF 44R policy.

The main issue was whether the plaintiff fell within the definition of a “dependent relative” in s.1.2 of the OPCF 44R. If so, she was an insured person under the policy. To make a claim under the provisions of the OPCF 44R, the plaintiff had to be a dependent relative of the named insured which, pursuant to the policy, required her to reside at the same dwelling premises as the named insured. However, the policy also stated that where the person could only be a “dependent relative” where the person is not an insured person as defined in the family protection coverage of any other policy of insurance or does not own, or lease for more than 30 days, an automobile which is licensed in any jurisdiction of Canada where family protection coverage is available.

The insurer submitted that the plaintiff did not meet the definition of “dependent relative” because at the time of the accident she owned an automobile that was licensed in Nova Scotia. The Court held that the plaintiff not only did not have insurance on her car but that as Nova Scotia does not offer coverage for accidents involving unidentified drivers such that, she could not have a Nova Scotia standard automobile policy to which she could add family protection coverage. Thus, family protection coverage was not “available” to the plaintiff. The Court found that as the plaintiff did not own an automobile that was licensed in a jurisdiction in Canada where family protection coverage was available, she qualified as a “dependent relative” and was an “insured person” for the purposes of coverage under the OPCF 44R endorsement.

The Court held that as the plaintiff was able to claim under the OPCF 44R endorsement, there was no recourse to the Fund as that Fund is the payer of last resort.

The Court dismissed the action as against the Superintendent.

This case was digested by Katherine E. Linton and edited by David W. Pilley of Harper Grey LLP. If you would like to discuss this case further, please feel free to contact them directly at klinton@harpergrey.com or dpilley@harpergrey.com or review their biographies at http://www.harpergrey.com.

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