No-fault coverage- Motor Vehicle Accident Claims Fund - Benefits - Statutory provisions - Uninsured motorist; Liability insurance - Motor vehicle accidents
McKenzie v. Zhang
A motion was brought by the Motor Vehicle Accident Claims Fund to determine whether Aviva Insurance was obliged to provide uninsured motorist coverage to the plaintiff. The Court determined that the plaintiff was not entitled to uninsured motorist coverage from Aviva.
 O.J. No. 638
2013 ONSC 982
Ontario Superior Court of Justice
E. Frank J.
February 11, 2013
The plaintiff was a pedestrian who had been struck by a bus. The driver was an employee of the defendant bus company. The company was a named insured under a motor vehicle liability policy issued by Aviva. The bus was not a listed vehicle under that policy at the time of the accident. The plaintiff applied to Aviva for payment of statutory accident benefits. Aviva paid the accident benefits without disputing the plaintiff’s entitlement to them.
The plaintiff commenced a tort action against the driver and the bus company. The defendants were noted in default. The action was defended thereafter by the Motor Vehicle Accident Claims Fund (“the Fund”). The plaintiff also commenced an action against Aviva for uninsured motorist coverage. Aviva denied that it was obliged to provide her such coverage. The Fund took the position that Aviva was required to respond to the tort claim and the claim for uninsured coverage by virtue of the fact that they had paid accident benefits to the plaintiff.
The Court first considered whether the payment of accident benefits had been made in error by Aviva. In accordance with the Aviva policy, the bus company would add and remove vehicles listed on the policy. The bus had been listed as an insured vehicle before the accident, was removed from the policy and relisted a week later. The Court found that there was a sufficient connection to obligate Aviva to respond to the plaintiff's application. The accident benefits paid were not made in error. Rather, Aviva had a statutory obligation to pay them.
The Court then considered whether the plaintiff, through the payment of accident benefits, became an insured and was therefore entitled to uninsured motor vehicle coverage from Aviva. It was found that there was no Aviva policy pursuant to which the plaintiff could be an insured. Therefore, she is not entitled to uninsured motorist coverage from Aviva. An injured person is unable to obtain uninsured motorist coverage from an insurer solely on the basis of the entitlement to statutory accident benefits from that insurer.