Superior Court affirms arbitral finding of priority insurer in car accident injury case

The Ontario Superior Court has found no errors justifying the appellate review of an arbitrator’s determination that Gore Mutual Insurance Company was the priority insurer liable for statutory accident benefits under s. 268(5.2) of Ontario’s Insurance Act, 1990. 

On Oct. 11, 2020, the claimant was driving a 2004 Chevrolet Silverado owned by his elderly mother to return to her farm and harvest a crop of beans after Thanksgiving dinner at his home. He suffered serious personal injuries when another vehicle struck the Silverado head-on. 

Gore Mutual – the appellant in Gore Mutual Insurance Company v. Hamilton Township Mutual Insurance Company, 2026 ONSC 255 – insured the Silverado. As the Silverado’s principal user, the claimant was a listed driver on the appellant’s policy. 

The respondent, Hamilton Township Mutual Insurance Company, insured two vehicles co-owned by the claimant and his wife, as well as a truck owned by Korel Farms Inc. and principally operated by the claimant. The claimant was the named insured on the respondent’s policy. 

The claimant was a director, manager, and vice president of Korel, of which his mother was a shareholder. He applied for statutory benefits from the respondent insurer, which notified the appellant insurer of its plan to dispute priority. 

The respondent insurer commenced an arbitration to determine which insurer stood in priority for the claimant’s statutory benefits. 

On June 19, 2023, the arbitrator held that the appellant was the priority insurer responsible for paying statutory benefits to the claimant, a “deemed named insured” under its policy. 

The arbitrator also found that the claimant had regular use and control of the Silverado, made available to him by a corporation or another entity, specifically a “family unit” or a joint venture. The arbitrator added that the claimant regularly used the Silverado to transport bales of hay between two farms. 

Gore Mutual appealed the arbitral award. 

Arbitral award upheld

The Ontario Superior Court of Justice dismissed the appeal. The court ruled that the arbitrator instructed himself on the appropriate onus and considered all the evidence, including: 

• the claimant’s examinations under oath 
• additional questions and answers 
• the documentary evidence, particularly the deduction of the Silverado’s costs as business expenses 
• the Silverado’s mileage, which supported the fact of its regular use 

The court held that the arbitrator made factual findings supported by the evidence. Specifically, the court said he was entitled to find that: 

• The family operated as a unit to manage two farm locations, a grain farm where the claimant’s mother lived and a cattle farm where the claimant and his wife resided 
• The claimant could freely use the cars and trucks for himself, his family, and the farming operations that he managed 
• The regular movement of bales of hay between farms was neither irregular nor out of the ordinary 

The court determined that the arbitrator made a legal analysis that reflected the evolution of the case law interpreting s. 3(7)(f)(i) of the Statutory Accident Benefits Schedule, O. Reg. 34/10 (SABS). 

The court found that the arbitrator did not err in interpreting that “other entity” under s. 3(7)(f)(i) could cover family purposes or joint ventures, and did not err in recognizing the claimant’s substantial connection with a vehicle used regularly to support the farming operations. 

Lastly, the court awarded the respondent insurer $6,500 in costs.