Atwi v. Certas Direct Insurance 2015 ONSC 2683 (DivCt)
The plaintiff was involved in a motor vehicle accident. She claimed accident benefits from Certas, and long-term disability benefits from Manulife. Her claim for income replacement benefits was approved. The LTD claim was denied and she commenced an action against Manulife.
Certas successful brought a motion to be made a third party to the LTD litigation. The motion judge was of the view Certas “want to be made a party to help the Plaintiff get LTD…which will be in their best interest because they will be reimbursed.”
Manulife successfully appealed. The Divisional Court held that Certas was not a necessary party to the LTD litigation. Certas was not a party to the LTD contract and had no cause of action against Manulife. Further, the Divisional Court noted that in Vanderkop v. Personal Insurance Co. 2009 ONCA 511, the Ontario Court of Appeal held that an accident benefits insurer does not have an absolute right to reduced IRBs where LTD benefits, while applied for, are not received. Further, as set out in Ng v. Cole 2013 ONSC 6588, an accident benefits carrier has no cause of action on the basis of unjust enrichment as against an LTD insurer.