As personal injury lawyers dealing with Ontario Car Accident Injuries, we often get calls from people confused about where to send their forms to apply for benefits.
People automatically assume that they can send the papers to the at-fault driver's insurance company and are often angry about sending them to their own insurer or the insurer of one of their family members.
These angry people often ask me how it makes any sense that their insurance company has to pay instead of the insurer of the at-fault driver. I let them know Ontario's law has a very detailed structure for who pays under the Accident Benefits system.
There is a "priority list", which sets out where to send the application for benefits. However, the law also protects claimants to ensure that they are probably covered if they send the application to the wrong insurer on the list.
A very basic summary (this is not intended as legal advice or to address any specific case and you should consult a lawyer for your specific fact scenario as exceptions and details may affect your case) is as follows:
1.WHERE TO SEND THE AB APPLICATION
*the injured person is entitled to send the completed AB application to any insurer on the priority list
*the first insurer who receives an application must pay benefits, but can dispute priority in the meantime
*the injured person must provide all requested needed info to determine priority
https://www.ontario.ca/laws/regulation/950283
2.WHO PAYS AB BENEFITS ONGOING
*The question of who handles the AB file ongoing(in the event of a dispute between insurers) is resolved by looking at section 268(2) of the Insurance Act, there is a hierarchy of Insurers who are obligated to pay Statutory Accident Benefits. Specifically, it provides:
(2) The following rules apply for determining who is liable to pay statutory accident benefits:
In respect of an occupant of an automobile,
- the occupant has recourse against the insurer of an automobile in respect of which the occupant is an insured,
- if recovery is unavailable under subparagraph i, the occupant has recourse against the insurer of the automobile in which he or she was an occupant,
- if recovery is unavailable under subparagraph i or ii, the occupant has recourse against the insurer of any other automobile involved in the incident from which the entitlement to statutory accident benefits arose,
- if recovery is unavailable under subparagraph i, ii or iii, the occupant has recourse against the Motor Vehicle Accident Claims Fund.
In respect of non-occupants,
- the non-occupant has recourse against the insurer of an automobile in respect of which the non-occupant is an insured,
- if recovery is unavailable under subparagraph i, the non-occupant has recourse against the insurer of the automobile that struck the non-occupant,
- if recovery is unavailable under subparagraph i or ii, the non-occupant has recourse against the insurer of any automobile involved in the incident from which the entitlement to statutory accident benefits arose,
- if recovery is unavailable under subparagraph i, ii or iii, the non-occupant has recourse against the Motor Vehicle Accident Claims Fund. R.S.O. 1990, c. I.8, s. 268 (2); 1993, c. 10, s. 1; 1996, c. 21, s. 30 (3, 4).
https://www.ontario.ca/laws/statute/90i08
3.WHAT ARE THE USUAL DISPUTES BETWEEN INSURERS
Under the Insurance Act, an Insured means “a person insured by a contract whether named or not and includes every person who is entitled to statutory accident benefits under the contract…” Priority disputes don't arise when an Applicant is the named Insured. Instead, these claims arise when someone other than the named Insured seeks benefits under an insurance policy. Priority disputes arise when an Insurer argues that there is another Insurer in higher priority. Generally, there are three instances where priority disputes arise:
*Where there is a dispute about whether the Applicant is Dependent on a Named Insured;
*Where there is a dispute about whether the Applicant is a Spouse of a Named Insured; and,
*Where there is a dispute about whether the Applicant has Regular Use of an Automobile during the course of their employment.
https://www.lerners.ca/lernx/priority-disputes-step-by-step-guide-to-handling-claims/
4.WHAT HAPPENS WHEN THE INSURERS FIGHT IT OUT
When insurance companies fight it out about who is responsible to pay the benefits, they follow a set process for determining who has the long-term obligation to pay.
https://www.sbalawyers.ca/coverage/sabs-priority-disputes-101-help/
Steven Polak is a car accident, injury and disability lawyer at Lerners LLP in Whitby and Toronto Ontario. www.law123.ca