The Financial Services Commission of Ontario ('FSCO")
decision by Arbitrator Osundi in Jama and Aviva Canada
Inc. (FSCO A13-004308) ("Jama") is the most recent
decision considering the territorial limits of the Statutory
Accident Benefits Schedule ("SABS").
In this case, the Applicant was the surviving widow of an
individual who passed away in a motor vehicle accident in
Somaliland, Africa in May 2012. The Applicant applied for
death and funeral benefits.
The Arbitrator concluded that the Applicant was precluded from
claiming accident benefits because the accident was outside of the
territorial limits considered by Section 2(3) of the SABS.
As identified by the Arbitrator, the crux of the Applicant's
case rested on whether there was ambiguity in Section 2(3). Section
2(3) of the SABS states:
(3) The benefits set out in
this Regulation shall be provided in respect of accidents that
occur in Canada or the United States of America, or on a vessel
plying between ports of Canada or the United States of
America. O. Reg. 34/10, s. 2(3).
Section 243(2) of Insurance Act also deals with the
territorial limitations. It provides:
(2) Statutory accident
benefits provided under section 268 apply to the use or operation
of any automobile in Canada, the United States of America and any
other jurisdiction designated in the Statutory Accident Benefits
Schedule, and on a vessel plying between ports of Canada, the
United States of America or a designated jurisdiction. 1996, c. 21,
Arbitrator Osundi found that there was no ambiguity in either
the SABS or the Insurance Act.
The Applicant relied solely on the decision of the Superior
Court of Justice in TD Insurance Co. v Vaughan
("Vaughan") in support of their position that there was
ambiguity in the SABS. In that case, the accident occurred in the
United States Virgin Islands and as such, there was ambiguity in
what was meant by Section 2(3). Specifically, it wasn't clear
if the United States of America included any of the three
unincorporated organized territories, one of which was the United
States Virgin Islands. The Court concluded that the doctrine of
contra proferentem applied to resolve the ambiguity in
favour of the insured.
In contrast, in the subject case, the accident happened in
another part of the world - Somaliland, Africa. The
Arbitrator found that the ambiguity that existed in the
Vaughan case was only as it related to the United States
of America and not other parts of the world. Arbitrator
Osundi concluded that the legislature intended to restrict claims
for accident benefits to only those that happen in Canada or the
United States of America or a vessel plying between ports of Canada
or the United States of America.
Accordingly, the Applicant was precluded from bringing a claim
for accident benefits.
While not entirely ground breaking, this most recent case
confirms the strict meaning of the territorial limits set forth in
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