Ontario Snowmobile Accident and Loss Transfer / Liability Dispute Between Insurers

The Issue: Sometimes after an Ontario car accident, insurers fight each other over who is “responsible” for paying the injured person(s) Accident Benefits claims.

The Background

This is not usually a concern of those in car accidents, but it is interesting to consider some of the background dealings that arise from car accidents.

With car accidents in Ontario, the people involved usually have an entitlement to Accident Benefits regardless of fault – i.e. the driver who caused the accident is usually entitled to the same level of benefits as the innocent victim.

Accident Benefits are taken care of by your own insurance company – each insurer knows, statistically, that a certain percentage of it’s clientele will make a claim for Accident Benefits regardless of fault.

The exception is when very small (i.e. motorcycles) or very large vehicles (i.e. large trucks) are involved in accidents, at which point a “loss transfer” of Accident Benefits make take place – fault is determined in these accidents in order to apportion responsibility for Accident Benefits according to fault.

This is to level out dramatic injuries where the Accident Benefits claimed will typically be extremely high (i.e. a motorcyclist generally always loses) and that where hardly any accident benefits will be claimed, at all (i.e. tractor trailer drivers often do not suffer physical injury when a collision occurs).

This Case

Such was the case in Pafco Insurance Company v. TD General Insurance Company, 2014 ONSC 914 (CanLII), where a snowmobile was hit by a pickup truck at a road crossing for a snowmobile trail which was maintained by the Ontario Federation of Snowmobile Clubs.

The issue involved an apportionment of responsibility between the snowmobile driver and the pickup truck and one argument was whether the Fault Determination Rules applied. As no agreement could be reached between the insurers, an Arbitration was held in which it was found that the snowmobiler was 75% contributorily negligent for the accident, while the driver was 25% responsible.

The Ontario Court of Appeal considered the standard of review and held that since the question was one mixed as to fact and law, defence was appropriate as to consideration of the Arbitrator’s decision and that the standard was one of reasonableness and not correctness.

Gregory Chang

Toronto Personal Injury and Insurance Lawyer

Source: Ontario Superior Court, Pafco Insurance Company v. TD General Insurance Company, 2014 ONSC 914 (CanLII), dated February 7, 2014.