Falling off the Priority Ladder: ONCA Denies Attempt to Import Causation Requirement into s. 268(2) of the Insurance Act, and Clarifies the Difference Between “Incident” and “Accident”

INTRODUCTION

The decision of the Ontario Court of Appeal in Ontario (Government and Consumer Services) v. Gore Mutual Insurance Company[1] stresses that there is no room for a causation analysis when interpreting the priority rules in s.268(2) of the Insurance Act. These priority rules are used to determine who is liable to pay statutory accident benefits after an automobile accident.

THE ACCIDENT

Christopher Ugulini and his fiancée, Lindsay Lance, went snowmobiling with Christopher’s brother, Casey Ugulini. The couple was riding Christopher’s snowmobile, which was uninsured, whereas Casey drove his own snowmobile, which was insured under a policy issued by Gore Mutual Insurance Company.

As the two snowmobiles whisked along, Christopher’s snowmobile was leading and Casey’s snowmobile followed closely behind. Unfortunately, both vehicles were moving at dangerously high speeds in an area where snowmobiling was prohibited. Both snowmobiles collided with a tree that had fallen across the path they were travelling. The collisions occurred within one second of each other and tragically resulted in the deaths of both men. Lindsay was the only survivor.  Lindsay applied for statutory accident benefits and a claim for death benefits was also made on behalf of Christopher. Although it was clear that the benefits were to be paid, it was unclear as to who should be paying according to the priority rules enumerated in s.268(2) of the Insurance Act.