O. Reg. 38/10: Disputes Between Insurers

 

ontario regulation 38/10

made under the

Insurance Act

Made: February 24, 2010
Filed: February 26, 2010
Published on e-Laws: March 2, 2010
Printed in The Ontario Gazette: March 13, 2010

Amending O. Reg. 283/95

(Disputes Between Insurers)

1. Ontario Regulation 283/95 is amended by adding the following section:

0.1 In this Regulation,

“application” means an application for accident benefits (OCF-1) approved by the Superintendent for the purposes of the Schedule;

“benefits” means statutory accident benefits as defined in subsection 224 (1) of the Act;

“completed application” means a completed and signed application;

“Fund” means the Motor Vehicle Accident Claims Fund continued under subsection 2 (1) of the Motor Vehicle Accident Claims Act;

“Schedule” means, in respect of an accident, the Statutory Accident Benefits Schedule as defined in subsection 224 (1) of the Act that applies in respect of the accident.

2. Section 2 of the Regulation is amended by adding the following subsection:

(2) Subsection (1) applies in respect of benefits that may be payable as a result of an accident that occurs before September 1, 2010.

3. The Regulation is amended by adding the following section:

2.1 (1) This section applies in respect of benefits that may be payable as a result of an accident that occurs on or after September 1, 2010.

(2) An insurer shall promptly provide an application and any other appropriate forms in accordance with the Schedule to an applicant who notifies the insurer that he or she wishes to apply for benefits.

(3) The application provided by the insurer must include the insurer’s name, mailing address and telephone and facsimile numbers.

(4) The applicant shall use the application provided by the insurer and shall send the completed application to only one insurer.

(5) An insurer that provides an application under subsection (2) to an applicant shall not take any action intended to prevent or stop the applicant from submitting a completed application to the insurer and shall not refuse to accept the completed application or redirect the applicant to another insurer.

(6) The first insurer that receives a completed application for benefits from the applicant shall commence paying the benefits in accordance with the provisions of the Schedule pending the resolution of any dispute as to which insurer is required to pay the benefits.

(7) An insurer that fails to comply with this section shall reimburse the Fund or another insurer for any legal fees, adjuster’s fees, administrative costs and disbursements that are reasonably incurred by the Fund or other insurer as a result of the non-compliance.

(8) In subsection (7),

“insurer” does not include the Fund.

4. Section 3 of the Regulation is amended by adding the following subsections:

(1.1) If the dispute relates to an accident that occurred on or after September 1, 2010, a notice required under subsection (1) must also be given to the Fund if the insurer claims the Fund is required to pay benefits.

. . . . .

(2.1) If the dispute relates to an accident that occurred on or after September 1, 2010, the Fund may give a notice under subsection (1) after the 90-day period and is not required to comply with subsection (2).

5. The Regulation is amended by adding the following section:

3.1 (1) This section applies to disputes relating to accidents occurring on or after September 1, 2010.

(2) Before giving a notice to the Fund under section 3, an insurer must,

(a) complete a reasonable investigation to determine if any other insurer or insurers are liable to pay benefits in priority to the Fund; and

(b) provide particulars to the Fund of the investigation and the results of the investigation.

6. Section 4 of the Regulation is amended by adding the following subsection:

(2) Despite subsection (1), if the insurer that gives notice under section 3 is the Fund, no notice shall be given to the insured person under subsection (1).

7. Subsection 5 (3) of the Regulation is amended by adding at the beginning “Subject to subsection 7 (5)”.

8. Section 7 of the Regulation is revoked and the following substituted:

7. (1) If the insurers cannot agree as to who is required to pay benefits, the dispute shall be resolved through an arbitration under the Arbitration Act, 1991 initiated by the insurer paying benefits under section 2 or 2.1 or any other insurer against whom the obligation to pay benefits is claimed.

(2) If an insured person was entitled to receive a notice under section 4, has given a notice of objection under section 5 and disagrees with an agreement among insurers that an insurer other than the insurer selected by the insured person should pay the benefits, the dispute shall be resolved through an arbitration under the Arbitration Act, 1991 initiated by the insured person.

(3) The arbitration may be initiated by an insurer or by the insured person no later than one year after the day the insurer paying benefits first gives notice under section 3.

(4) Despite subsection (3), the arbitration may be initiated by the Fund at any time before or after the expiry of the time limit set out in subsection (3) if the Fund is paying benefits in respect of an accident that occurred on or after September 1, 2010.

(5) No insured person is entitled to initiate or participate as a party to an arbitration under this section if the insurer paying benefits is the Fund.

(6) If the dispute relates to an accident that occurred on or after September 1, 2010, the failure of an insurer other than the Fund to comply with section 2.1 or 3.1 may be the subject of a special award made by the arbitrator.

9. Subsection 8 (2) of the Regulation is revoked and the following substituted:

(2) The following rules apply with respect to an arbitration of a dispute relating to an accident that occurs on or after September 1, 2010:

1. If an insurer to whom a notice to initiate arbitration is delivered does not respond to the notice within 30 days, the insurer is deemed to have accepted the jurisdiction of the arbitrator proposed in the notice.

2. A pre-arbitration hearing must be scheduled and take place no later than 120 days after the appointment of the arbitrator.

3. Subject to paragraph 4, once a date for the arbitration is scheduled, the arbitration must be conducted on that day.

4. The arbitrator may grant an adjournment on such terms as the arbitrator considers appropriate, but only if there is cogent and compelling evidence of the reasons why the hearing cannot proceed on the scheduled day.

5. Unless consented to by all parties, the hearing of the arbitration must be completed within two years after the commencement of the arbitration.

(3) The decision of an arbitrator made under this Regulation must be made public.

(4) If the decision relates to an accident that occurred on or after September 1, 2010, the decision must be made public,

(a) by the insurer that the arbitrator finds to be liable to pay the benefits; and

(b) in a manner and form specified by the Superintendent.

10. Section 11 of the Regulation is revoked.

11. This Regulation comes into force on the later of September 1, 2010 and the day it is filed.