Civil Liability under the No Fault System in Ontario

Caselaw.Ninja, Riverview Group Publishing 2021 ©
Date Retrieved:	2024-11-23
CLNP Page ID:	2208
Page Categories:	[Insurance Law]
Citation:	Civil Liability under the No Fault System in Ontario, CLNP 2208, <https://rvt.link/5x>, retrieved on 2024-11-23
Editor:	Sharvey
Last Updated:	2023/05/19

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Insurance Act, R.S.O. 1990, c. I.8

PART III (122 - 141)

127 (1) Every policy shall contain the name of the insurer, the name of the insured, the name of the person or persons to whom the insurance money is payable, the amount, or the method of determining the amount, of the premium for the insurance, the subject-matter of the insurance, the indemnity for which the insurer may become liable, the event on the happening of which the liability is to accrue, the date upon which the insurance takes effect and the date it terminates or the method by which the latter is fixed or to be fixed. R.S.O. 1990, c. I.8, s. 127 (1).

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135 (1) An insurer, immediately upon receipt of a request, and in any event not later than sixty days after receipt of notice of loss, shall furnish to the insured or person to whom the insurance money is payable forms upon which to make the proof of loss required under the contract.

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136 No action shall be brought for the recovery of money payable under a contract of insurance until the expiration of sixty days after proof, in accordance with the provisions of the contract,

(a) of the loss; or

(b) of the happening of the event upon which the insurance money is to become payable,

or of such shorter period as is fixed by the contract of insurance. R.S.O. 1990, c. I.8, s. 136.

PART VI (224 - 289) AUTOMOBILE INSURANCE

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Partial payment of loss clause
261 (1) A contract or part of a contract providing insurance against loss of or damage to an automobile and the loss of use thereof may contain a clause to the effect that, in the event of loss, the insurer shall pay only,

(a) an agreed portion of any loss that may be sustained; or

(b) the amount of the loss after deduction of a sum specified in the policy,

and in either case not exceeding the amount of the insurance. R.S.O. 1990, c. I.8, s. 261 (1).

Mandatory deductible

(1.1) Despite subsection (1), in the circumstances prescribed by the regulations, a contract or part of a contract providing insurance against loss of or damage to an automobile and the loss of use thereof shall contain a clause to the effect that, in the event of loss, the insurer shall pay only the amount of the loss after deduction of a sum specified in the policy not exceeding the amount of the insurance. 1996, c. 21, s. 23 (1).

Stamping required

(2) Where a clause is inserted in accordance with subsection (1) or (1.1), there shall be printed or stamped upon the face of the policy in conspicuous type the words “This policy contains a partial payment of loss clause” or the French equivalent. R.S.O. 1990, c. I.8, s. 261 (2); 1996, c. 21, s. 23 (2).

Claims under other contracts to be adjusted
262 (1) Where a claim is made under any contract other than a contract evidenced by a motor vehicle liability policy, the insurer shall, despite any agreement, adjust the amount of the claim with the insured named in the contract as well as with any person having an interest indicated in the contract. R.S.O. 1990, c. I.8, s. 262 (1).

Exception

(2) Despite subsection (1), if notice of a claim is given or proof of loss is made by a person having an interest indicated in the contract, and no notice is given and no proof of loss is made by the insured within sixty days after the day the notice or proof is required under the contract, the insurer may adjust and pay the claim to the other person having an interest indicated in the contract. 1993, c. 10, s. 20.

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Subrogation
278 (1) An insurer who makes any payment or assumes liability therefor under a contract is subrogated to all rights of recovery of the insured against any person and may bring action in the name of the insured to enforce those rights. R.S.O. 1990, c. I.8, s. 278 (1).

Pro-rating recovery

(2) Where the net amount recovered whether by action or on settlement is, after deduction of the costs of the recovery, not sufficient to provide complete indemnity for the loss or damage suffered, the amount remaining shall be divided between the insurer and the insured in the proportion in which the loss or damage has been borne by them. R.S.O. 1990, c. I.8, s. 278 (2).

Action when s. 261 applies

(3) Where the interest of an insured in any recovery is limited to the amount provided under a clause in the contract to which section 261 applies, the insurer shall have control of the action. R.S.O. 1990, c. I.8, s. 278 (3).

Application to court

(4) Where the interest of an insured in any recovery exceeds that referred to in subsection (3) and the insured and the insurer cannot agree as to,

(a) the solicitors to be instructed to bring the action in the name of the insured;

(b) the conduct and carriage of the action or any matters pertaining thereto;

(c) any offer of settlement or the apportionment thereof, whether action has been commenced or not;

(d) the acceptance of any money paid into court or the apportionment thereof;

(e) the apportionment of costs; or

(f) the launching or prosecution of an appeal,

either party may apply to the Superior Court of Justice for the determination of the matters in question, and the court shall make such order as it considers reasonable having regard to the interests of the insured and the insurer in any recovery in the action or proposed action or in any offer of settlement. R.S.O. 1990, c. I.8, s. 278 (4); 2006, c. 19, Sched. C, s. 1 (1).

Idem

(5) On an application under subsection (4), the only parties entitled to notice and to be heard thereon are the insured and the insurer, and no material or evidence used or taken upon the application is admissible upon the trial of an action brought by or against the insured or the insurer. R.S.O. 1990, c. I.8, s. 278 (5).

Concurrence in settlement or release

(6) A settlement or release given before or after an action is brought does not bar the rights of the insured or the insurer, as the case may be, unless they have concurred therein. R.S.O. 1990, c. I.8, s. 278 (6).

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267.4 (1) Sections 267.5 to 267.11 apply only to proceedings for loss or damage from bodily injury or death arising from the use or operation, after November 1, 1996, of an automobile in Canada, the United States of America or a jurisdiction designated in the Statutory Accident Benefits Schedule. 1996, c. 21, s. 29; 2020, c. 34, Sched. 7, s. 10.

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Protection from liability
Income loss and loss of earning capacity
267.5 (1) Despite any other Act and subject to subsections (6) and (6.1), the owner of an automobile, the occupants of an automobile and any person present at the incident are not liable in an action in Ontario for the following damages for income loss and loss of earning capacity from bodily injury or death arising directly or indirectly from the use or operation of the automobile:

1. Damages for income loss suffered in the seven days after the incident.

2. Damages for income loss suffered more than seven days after the incident and before the trial of the action in excess of 70 per cent of the amount of gross income that is lost during that period, as determined in accordance with the regulations.

3. Damages for loss of earning capacity suffered after the incident and before the trial of the action in excess of 70 per cent of the loss of earning capacity during that period, as determined in accordance with the regulations. 1996, c. 21, s. 29; 2010, c. 1, Sched. 11, s. 1 (1); 2011, c. 9, Sched. 21, s. 3 (1); 2020, c. 34, Sched. 7, s. 11.

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(6) Subsections (1), (3) and (5) do not protect a person from liability if the person is defended in the action by an insurer that is not licensed to undertake automobile insurance in Ontario unless the insurer has filed an undertaking under section 226.1. 1996, c. 21, s. 29.

(6.1) In respect of an incident that occurs on or after the date this subsection comes into force, subsections (1), (3) and (5) do not protect the owner or driver of a public transit vehicle if it did not collide with another automobile or any other object in the incident. 2011, c. 9, Sched. 21, s. 3 (4).

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267.6 (1) Despite any other Act, a person is not entitled in an action in Ontario to recover any loss or damage from bodily injury or death arising directly or indirectly from the use or operation of an automobile if, at the time of the incident, the person was contravening subsection 2 (1) of the Compulsory Automobile Insurance Act in respect of that automobile.