Joe v. The Wawanesa Mutual Insurance Company, 2020 YKSC 38

SUPREME COURT OF YUKON Citation: Joe v. The Wawanesa Mutual Insurance Company , 2020 YKSC 38 and Bear v. The Wawanesa Mutual Insurance Company , 2020 YKSC 38 Date: 20200929 S.C. No. 17-A0133 Registry: Whitehorse BETWEEN: ARTHUR JOE PLAINTIFF AND THE WAWANESA MUTUAL INSURANCE COMPANY DEFENDANT S.C. No.: 17-A0154 BETWEEN: EMILY BEAR, SPOUSE OF KENNETH RAYMOND BAKER AND BENEFICIARY OF THE ESTATE OF KENNETH RAYMOND BAKER PLAINTIFF AND THE WAWANESA MUTUAL INSURANCE COMPANY DEFENDANT Before Madam Justice S.M. Duncan Appearances: Daniel S. Shier Counsel for the Plaintiff Arthur Joe Anna C.

Starks-Jacob Counsel for the Plaintiff Emily Bear, spouse of Kenneth Raymond Baker and Beneficiary of the Estate of Kenneth Raymond Baker Aron M. Bookman Counsel for the Defendant, The Wawanesa Mutual Insurance Company REASONS FOR JUDGMENT INTRODUCTION [ 1 ] This is a stated case to determine whether accident benefits payable to occupants of a vehicle under the unidentified motorist coverage of the owner of the vehicle in a motor vehicle accident are first loss insurance, or whether the unidentified motorist coverage of one of the occupants of the vehicle in the accident can be accessed first.

FACTUAL BACKGROUND [ 2 ] The case arises from a motor vehicle accident that occurred on June 4, 2017. Kenneth Baker was driving Henry Broeren’s car (the “Broeren vehicle”). Arthur Joe was his sole passenger. They were travelling along the Alaska Highway past Squanga Lake. A piece of metal, called a porta anchor in the Coroner’s report (similar to a portable winch), from a semi-truck and trailer passing in the opposite direction flew through the driver’s side of the windshield, instantly killing Kenneth Baker. Mr.

Joe sustained physical and psychological injuries. [ 3 ] The semi-truck and trailer were never identified.

[ 4 ] Henry Broeren was insured by The Wawanesa Mutual Insurance Company (“Wawanesa”), by the Yukon Standard Automobile Policy (“S.P.F. No. 1”). Mr. Broeren also had a Standard Endorsement Form No. 44 (“S.E.F. 44”) (“Broeren Policy”). [ 5 ] Mr. Joe also had S.P.F. No. 1 and S.E.F. 44 insurance policies on his own vehicle, also with Wawanesa (“Joe Policy”). [ 6 ] The S.P.F. No. 1 Policy,

Section B is entitled “Accident Benefits”, and subsection 3 of

Section B provides “Uninsured Motorist Cover” (“UMC”). It contains the following approved wording:

Section B – Accident Benefits The Insurer agrees to pay to or with respect to each insured person as defined in this

section who sustains bodily injury or death directly and independently of all other causes by an accident arising out of the use or operation of an automobile. …. Subsection 3 – Uninsured Motorist Cover All sums which every insured person shall be legally entitled to recover as damages for bodily injury, and all sums which any other person shall be legally entitled to recover as damages because of the death of any insured person, from the owner or driver of an uninsured or unidentified automobile as defined herein. [ 7 ] The following definition in

Section B is pertinent: Special Provisions,

Definitions, and Exclusions of

Section B (1) “ Insured Person ” Defined in this section, the words “insured person” mean

a) any person while an occupant of the described automobile or of a newly acquired or temporary substitute automobile as defined in this policy;

b) the insured and, if residing in the same dwelling premises as the insured, his or her spouse and any dependent relative of either while an occupant of any other automobile; … [ 8 ] Mr. Joe is an Insured Person under the Broeren Policy on the basis of

a) of the definition, because he was an occupant of the described automobile, which is the Broeren vehicle. As well, he is an insured person under the Joe Policy, on the basis of

b) of the definition, as an occupant of the Broeren vehicle, which is “any other automobile” under the policy. [ 9 ] Kenneth Baker, the driver, was also an Insured Person under the Broeren Policy on the basis of

a) of the definition, because he was an occupant of the Broeren vehicle, the described automobile. [ 10 ] The definition of unidentified automobile in the S.P.F. 1 Policy is relevant:

(3) Unidentified automobile defined An “unidentified” automobile under this subsection means an automobile which causes bodily injury or death to an insured person arising out of physical contact of such automobile with the automobile of which the insured person is an occupant at the time of the accident, provided

a) the identity of either the owner or driver of such automobile cannot be ascertained...

[11] Automobile as defined in the Insurance Act, R.S.Y. 2002, c. 119, includes “trailers, accessories, and equipment of automobiles”.The porta anchor that struck the Broeren vehicle was a piece of a trailer, is considered to be an automobile within the Insurance Act, andan unidentified automobile in the UMC. [12] Mr. Joe has commenced a tort action and an insurance action. Kenneth Baker’s spouse, Emily Bear, has also commenced a tortaction and an insurance action. She and certain of her family members are also entitled to claim under the Fatal Accidents Act, R.S.Y.2002, c. 86. [13] There is a $200,000 limit under each of the Broeren UMC and the Joe UMC. POSITIONS OF THE PARTIES

i) Wawanesa [14] Wawanesa’s position is that the Broeren Policy is first loss insurance. It relies on s. 172(1) of the Insurance Act, arguing that itapplies in this fact situation and requires Mr. Joe, an occupant of the vehicle in the accident, to be reimbursed under the Broeren Policyfirst. Section 172(1) is attached hereto as Appendix “A”.

It provides that the liability insurance of the owner of a vehicle in an accident isfirst loss insurance, and insurance attaching under any other valid motor vehicle liability policy is excess insurance only. [15] Wawanesa says that even though UMC falls under the “Limited Accident Insurances” section, which addresses statutory benefitssuch as medical, funeral, death and disability (see s. 163, s. 164), and s. 172 falls under the “Miscellaneous - Other Insurance” section,this does not preclude the s. 172 priority scheme from applying to circumstances involving UMC.

Wawanesa says that the trigger forUMC coverage is the liability of an unidentified driver for the resulting death or injury. Since s. 172 addresses liability insurancegenerally, it must also include liability by an unidentified motorist. Wawanesa says that UMC’s inclusion in Limited AccidentInsurances, separate from the third party liability sections in the statute, is an illusory and immaterial distinction. Wawanesa relies onolder case law from Ontario in support of its position.

Wawanesa notes the plaintiffs have provided no alternative priority analysis, butinstead have provided a result-oriented analysis, which is convenient in the circumstances because Mr. Joe has his own UMC. [16] The implications of Wawanesa’s

interpretation are that the coverage under the UMC provisions of the Broeren Policy is splitbetween the Bear claimants and Mr. Joe. If Mr. Joe’s claim is not satisfied by the proportionate share received under the Broeren Policy,he can access the UMC provisions of his own policy to pay the excess amounts of his claim. The Bear plaintiffs will likely not have theirentitlements under the Fatal Accidents Act satisfied, given the $200,000 limit that must be shared. Wawanesa says there is no authorityto support Mr.

Joe’s argument that he can choose to be covered by his own policy first, leaving the Broeren Policy to pay for the Bearclaimants. ii) Bear and Joe [17] The Bear plaintiffs adopt the arguments of Mr. Joe. He relies on the modern approach to statutory

interpretation. He notes thatthe provisions in question are s. 162 (UMC), s. 167 (First Liability), and s. 172(1) - (Miscellaneous, Other Insurance), in the InsuranceAct, and S.P.F. No. 1,

Section B, subsection 3, UMC in the Standard Automobile Policy. All of these are attached hereto as Appendix“B”. [18] The Bear claimants and Mr. Joe argue that UMC is properly characterized as a contractual obligation (between insured andinsurer) and not a tort liability provision. The priority provisions in s. 172(1) apply only to tort liability. The tort liability of anunidentified motor vehicle is addressed through the statutory and policy requirements of the insured to pay sums representing damagesfor recovery from injuries sustained in an accident with an unidentified motor vehicle.

The requirements set out in s. 162 mean that UMCis of a different nature than the tort liability referred to in s. 172, making s. 172 inapplicable. [19] Mr. Joe says the Ontario authorities relied on by Wawanesa are inapplicable because of various distinguishing factors, includingthe differences in the legislation and the development of the law in each jurisdiction. Specifically, Mr. Joe urges the Court to reject theOntario Court’s decision in Harrison v. Dumfries Mutual Insurance Co., (ON SC), [1996] 29 O.R. (3d) 724(O.N.G.D.) (“Harrison”), which was followed in Morrison v.

Ashley, 2012 ONSC 745 (“Morrison”), and Oliveira (Litigation Guardianof) v. Mullings, (ON SC), [2009] 94 O.R. (3d) 751 (O.N.S.C.) (“Oliveira”). In Harrison a motor vehicle accidentoccurred between a van being driven by Harrison, who had permission from the van owner to drive, and an unidentified motor vehicle.The van owner had UMC, applicable to Harrison, an occupant. Harrison had his own insurance policy on his own vehicle, a Nova, whichalso contained a UMC provision.

The two insurers were disputing whether or not Harrison could access his own policy on the Nova, orwhether the van policy was first loss insurance. The argument in favour of accessing Harrison’s own policy on the Nova was that s.241(1) of the Ontario Insurance Act, R.S.O. 1990, c. 218, a

section similar to s. 172(1) of the Yukon Insurance Act, did not applybecause it did not address the responsibility to pay first party benefits such as UMC. Section 241(1) used the words “in respect ofliability arising from…”. The Court rejected the argument that s. 241(1) did not apply based on the placement of s. 231 (equivalentto the UMC provision in s. 162 of the Yukon Insurance Act) in the liability

section of the Ontario statute, not in the limited accidentinsurance/statutory benefits section. The Ontario Court held that s. 241(1) set out the priority in situations arising under s. 231. In otherwords, the van owner’s UMC was first loss insurance and Harrison’s Nova insurance was excess insurance only. [20] Mr. Joe notes that in the Yukon statute, unlike the Ontario statute in Harrison, s. 162 is clearly part of Limited AccidentInsurances, and s. 172 is in the following section, under a different heading, Miscellaneous - Other Insurance. [21]

Section 167 is a provision in the Limited Accident Insurances

section of the Yukon statute that addresses first loss for benefitsunder that section. It states that the insurer of the owner of the vehicle involved in the accident provides first loss insurance to anoccupant of the vehicle involved in the accident. However, s. 167 refers only to medical and funeral benefits (s. 163) and death anddisability benefits (s. 164) in providing that the insurer of the owner of the motor vehicle provides first loss insurance.

Section 167 doesnot address the priority of benefits payable under s. 162, UMC.

[22] Mr. Joe points to the purpose of UMC, described by the Ontario Court of Appeal in Chambo v. Musseau, (ONCA), [1993] 15 O.R. (3d) 305 (“Chambo”), as: …part of a broad statutory scheme which required that all motor vehicles in Ontario be insured and which provided that all automobileinsurance policies issued in Ontario had to include, among other things, uninsured motorist coverage. The coverage is statutory in thesense that its basic elements are set out in s. 231 of the Insurance Act. The legislative intent was to internalize costs to the activity(driving a motor vehicle) which created them.

Before March 1980 the costs resulting from the negligence of an uninsured driver wereexternalized, in that they were paid by the taxpayers generally, through the Motor Vehicle Accidents Claim Fund. In my view, theuninsured motorist coverage legislation is remedial and should be given a broad and liberal

interpretation. [23] Mr. Joe says he has paid an increased premium for UMC on his own policy. As a result, he should be able to obtain its benefit.Instead, he is being forced to wait until the determination of Wawanesa’s argument that the Broeren Policy is first loss insurance and theJoe Policy excess insurance only for Mr. Joe, before obtaining recovery. This situation is unusual because it is the same insurer for bothplaintiffs, causing the delay in payment to Mr. Joe.

ISSUE [24] The main issue is whether s. 172(1) of the Insurance Act applies to recovery under UMC by an occupant of a vehicle in anaccident with an unidentified motor vehicle, where that occupant has their own UMC in their policy. [25] In other words, must Mr. Joe access the Broeren Policy first, based on s. 172 of the Insurance Act, sharing on a pro-rata basiswith the Bear claimants as one unit? This would leave fewer funds to be shared by the Bear claimants before Mr. Joe could access hisown policy, which would provide excess insurance only. Or, can Mr.

Joe recover under the UMC in his own policy up to its limit for hisinjuries as an occupant of the Broeren vehicle, leaving the Broeren Policy UMC to be accessed by the Bear family? SHORT ANSWER [26] Certain facts of this case distinguish it from those cases referenced by Wawanesa. The primary one is that there were twooccupants in the Broeren vehicle, neither of whom was the owner. [27] A reasonable

interpretation of s. 172(1) is that it does not apply to recovery under UMC in this case, as UMC is statutory, andpart of the contractual benefits

section for the purpose of the statute and the policy. This accords with the plain reading of the provisionsat issue, the structure and object of the legislation, the intent of the legislature. As a result, Mr. Joe is not bound to use the BroerenPolicy as a first loss policy, but may access his own policy, for which he has paid a premium, for recovery under the UMC provisions.The Bear claimants will have their recovery from the Broeren Policy UMC provisions. ANALYSIS [28] This case requires statutory

interpretation and application to the facts of this case. The modern approach to statutoryinterpretation was adopted by the Supreme Court of Canada in the case of Rizzo & Rizzo Shoes Ltd. (Re), (SCC),[1998] 1 S.C.R. 27, and reinforced in Bell ExpressVu Ltd. Partnership v. Rex, 2002 SCC 42 and B010 v. Canada (Minister ofCitizenship and Immigration), 2015 SCC 58: 29 ...The modern rule of statutory

interpretation requires us to read “the words of

an Act…in their entire context, in theirgrammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament”: R. Sullivan, Sullivan on the Construction of Statutes (6th ed. 2014), at p 7… [29] The importance of context in the modern approach to statutory

interpretation was discussed specifically as it applies inautomobile insurance cases in the decision of David Polowin Real Estate Ltd. v. Dominion of Canada General Insurance Co. (ON CA), [2005] 199 O.A.C. 266, (“Polowin”), application for leave to appeal to the Supreme Court of Canada dismissedwith costs, January 26, 2006. In that case, the Court was examining the question of the

interpretation of statutory conditions in a standardautomobile insurance policy. Although a different issue than the case at bar, the principles of

interpretation are still applicable here,especially since the factual context is similar. The Court held at paras. 62-63: [62] The context for interpreting a statutory condition 6(7) includes its basic purpose, its mandatory inclusion in the standard Ontarioautomobile policy, the wording of the policy… [63] …the court should adopt an

interpretation that complies with the legislative text, promotes the legislative purpose, and producesa reasonable and sensible meaning. … [30] And at paras. 79 and 80: [79] Statutory condition 6(7) is not just a legislative provision; because of s. 234(1) of the Act, it is also part of the Ontarioautomobile insurance policy. In this context, its meaning should be considered in the light of the principles for interpreting insurancepolicies. One such principle is interpreting the scope of coverage to give effect to the reasonable expectations of the parties. …

[80] …it is always desirable when a court’s

interpretation accords with the parties’ reasonable expectations. … [31] In this case, the statutory provisions in question are: 1. Insurance Act:

Section 162 - Uninsured Motorist Cover;

Section 167- First Liability; and 2. Section 172(1) - Miscellaneous - Other Insurance. [32] The policy at issue is S.P.F. No. 1:

Section B, Subsection 3, Uninsured Motorist Cover. [33] There will be some repetition in this analysis of the statutory and policy provisions set out in detail above in the sectiondescribing the positions of the parties. [34]

Section 162 is found under the heading Limited Accident Insurances in the Insurance Act. It sets out the statutory requirements ifUMC is included in an insured’s contract of insurance.

Section 162 provides that UMC applies to an injured or killed occupant of avehicle involved in an accident with an unidentified or uninsured person. The vehicle can be either the automobile for which insurance isprovided under the contract, or any other automobile, as set out in the contract for the purpose of that insurance. [35] In this case, as noted above, the Joe Policy defines Insured Person for the purpose of

Section B, Subsection 3, UninsuredMotorist Cover, of the policy as the person while an occupant of the automobile described in the policy (that is, Mr. Joe’s vehicle), or theinsured (that is, Mr. Joe) while he is an occupant of any other vehicle (that is, the Broeren vehicle). [36] Also included under the heading Limited Accident Insurances is s. 167 - First liability. It provides that if any occupant of avehicle involved in an accident is entitled to medical and funeral insurance benefits (s. 163) or death and disability insurance benefits (s.164), then the insurer of the owner of the motor vehicle shall in the first instance be liable for the payments of the benefits. [37]

Section 167 does not apply to s. 162. [38]

Section 172 appears in the Insurance Act under the next heading - Miscellaneous - Other Insurance.

It provides that insuranceunder a contract evidenced by a valid owner’s policy in respect of liability occurring in connection with the ownership, use or operationof an automobile owned by the insured named in the contract is a first loss insurance, and insurance under any other valid motor vehicleliability policy is excess insurance only. [39] While in the broad sense, UMC protects occupants of vehicles from unidentifiable or uninsured drivers who cause injury ordeath, it has statutory limitations set out in s. 162.

The following facts show that it was intended to be treated differently from the generaltort liability provisions:

i) UMC is found under the Limited Accident Insurances section; ii) UMC is not subject to the priority provisions in s. 167 and there is no other provision about first loss insurance in that sectionapplicable to UMC; iii) UMC, along with the benefits set out in s. 163 and s. 164, is not subject to the statutory conditions to be included in the policy(see s. 138); and iv)

Section 172 does not make specific reference to UMC. [40] The silence in the statute about priority of multiple policies that may apply to claimants seeking UMC recovery createsambiguity. [41] Where there is ambiguity, the principles set out in Ledcor Construction Ltd. v Northbridge Indemnity Insurance Co., 2016 SCC37, (and other cases) apply. The policy and statute should be interpreted in line with the expectations of the parties. This is also one ofthe principles for

interpretation of insurance policies described in para. 79 of Polowin, noted above. The Supreme Court of Canada inLedcor wrote: [50] Where, however, the policy's language is ambiguous, general rules of contract construction must be employed to resolve thatambiguity. These rules include that the

interpretation should be consistent with the reasonable expectations of the parties, as long as thatinterpretation is supported by the language of the policy; it should not give rise to results that are unrealistic or that the parties would nothave contemplated in the commercial atmosphere in which the insurance policy was contracted, and it should be consistent with theinterpretations of similar insurance policies. See Progressive Homes, at para. 23, citing Scalera, at para. 71; Gibbens, 2009 SCC 59, [2009] 3 S.C.R. 605 at paras. 26-27; and Consolidated-Bathurst Export Ltd. v.

Mutual Boiler and Machinery Insurance Co., (SCC), [1980] 1 S.C.R. 888, at pp. 900-902. [51] Only if ambiguity still remains after the above principles are applied can the contra proferentem rule be employed to construethe policy against the insurer: Progressive Homes, at para. 24, citing Scalera, at para. 70; Gibbens, at para. 25; and Consolidated-Bathurst, at pp. 899-901. Progressive Homes provides that a corollary of this rule is that coverage provisions in insurance policies areinterpreted broadly, and exclusion clauses narrowly.

[42] While Wawanesa states that their expectation was that the Broeren Policy is first loss insurance, they provide few details aboutthe mischief that their

interpretation is designed to avoid. In other words, what is the harm to Wawanesa of the

interpretation proposedby Mr. Joe and the Bear claimants? Clearly, there is additional cost to Wawanesa, as well as a different outcome than expected, based ontheir

interpretation of the Ontario case law, if the

interpretation of the Bear claimants and Mr. Joe is adopted, but other than this nohardship was identified. [43] On the other hand, there is hardship to the Bear claimants if the Broeren Policy is first loss insurance only. Through no fault oftheir own, their relative, Kenneth Baker, was killed. They clearly are covered by the Broeren Policy, for which premiums were duly paid.Why should they not have the benefit of full coverage under that policy, in the unique circumstances of this case, where Mr. Joe has fullcoverage under his own policy, also after paying full premiums, including for UMC? To adopt the

interpretation of Wawanesa is toprejudice the Bear family. [44] The

interpretation of the Bear claimants and Mr. Joe is consistent with the expectations of the plaintiffs. As noted by the Court inPoulin v. Wawanesa Mutual Insurance Co., 2016 ABQB 547 at para. 19, “[t]he insurer should not be allowed to collect a premium anddeny compensation for a loss.” Likewise, the insured should not be able to collect for a loss not intended to be covered by the contract.Here, both insureds paid premiums for UMC in their own policies. It is uncontested that the Joe Policy covers Mr.

Joe in this situation.There is no windfall for any of the parties. [45] Much of the Yukon automobile insurance scheme is modelled after other provinces, and in particular, the Yukon scheme issimilar (but not identical) to the Ontario scheme, at least as it was at a certain time period.

There is no reason why the Ontario authoritiesshould not provide some guidance to this Court, especially since the wording of the Ontario Insurance Act at the time those cases weredecided was similar to the wording in the Yukon Insurance Act. [46] However, all the cases referred to by Wawanesa can be distinguished from the facts of this case in several areas. There was onlyone occupant in the vehicles involved in the accidents in all of those cases. There was no discussion in any of the cases about theinadequacy of the owner’s policy coverage to cover the damages of the injured party.

Instead, the arguments were directed to whetherthe sole injured or deceased occupant of the vehicle in the accident was covered by their own policy, or by the vehicle owner’s policy.These arguments related to who should pay as between two different insurers, not between insured and insurer as in this case. There wasno injustice to the insured as a result of the arguments between insurers (see Harrison; Morrison; Maddalena v. Crouse, (ON CA), [1996] 30 O.R. (3d) 578 (C.A.) (“Maddalena”); Oliveira). [47] As noted above, UMC is distinguishable from the third party liability sections.

As part of the insurance contract, it is anassumption of risk or liability by the owner in a specific factual circumstance where the ability to commence a tort action and assessdegree of culpability is restricted because of the unidentified tortfeasor. That assumption of risk by the injured party’s insurer is paid forthrough increased premiums under the contract. The

interpretation of UMC should be broad and liberal, given that it is a remedialstatutory provision, to address a circumstance in which the usual principles of tort liability cannot be applied. [48] Further distinguishing factors include: i. In Harrison, the Court held that the priority provision in the Ontario statute, equivalent to s. 172 of the YukonInsurance Act, applied to UMC coverage on the basis that the distinction between third party liability and first party benefits, such asUMC, was flawed because UMC was not included in the Accident Benefits

section in the Ontario statute, although it was part of theAccident Benefits

section in the standard Ontario policy. This is distinguishable from the case at bar, in which UMC is included in thepart of the Yukon statute that sets out the other contractual accident benefits (Limited Accident Insurances). That part of the statute issilent on the priorities applicable to more than one policy including UMC, while it does include priority provisions for the other accidentbenefits. ii.

In Morrison, the Court accepted the conclusion in Harrison, without further analysis, and held that in a situationwhere multiple policies including UMC are available, the priorities set out in s. 277(1) (equivalent to s. 172) apply. The focus inMorrison was whether a specific statutory provision applicable to rented vehicles (s. 277(1.1)) applied to UMC, meaning that theinsurance provided to rental companies for third party claims would be the last to respond, rather than providing first loss insurance aswas required by s. 277(1).

The Court held that because there was nothing in s. 277(1.1) to suggest that it applied to UMC claims, thepriorities in s. 277(1) applied. This was a different issue and focus than the case at bar. It is noteworthy though that the failure of s.277(1.1) to refer specifically to UMC claims was a decisive factor. iii. In Maddalena, the focus of the case was whether the vehicle owner’s policy was broad enough to include the driver ofthe vehicle, who was an employee of the owner, or whether he would have to access his own policy for coverage.

The employer’sinsurer argued that the employee occupant should be considered an occupant of an uninsured automobile and thus required to access hisown automobile insurance policy. The Court held that the intent of the applicable statutory provision, s. 265(2)(c)(iii), was tobroaden the owner’s coverage to include its employees so they would not have to resort to their own coverage if injured in theiremployer’s automobile. This result is in line with the expectations of the employee driver. The focus was on the potential injustice to theemployee if the employer’s insurance did not cover him.

There was no issue of inadequacy of coverage as there was only one occupant.The issue was which insurer should pay. iv. In Oliveira, the Court followed Maddalena, as the facts were similar. The issue was whether an employee injured inhis employer’s vehicle by an uninsured motorist was entitled to claim under his employer’s policy. The Court noted that in order to holdthat the employee had to access his own coverage, it would have to find that he was the occupant of an uninsured vehicle, an absurdresult. In the case at bar, it is not necessary to make such a finding, as it is uncontested that Mr.

Joe is covered by his own policy. [49] Thus, on a plain reading of the statute, UMC appears under Limited Accident Insurances and that

section has no specificprovision that addresses priorities in the case of multiple UMC policies, unlike the other accident benefits listed. Section 172(1) does notexplicitly refer to UMC, but only to third party liability. The Ontario authorities do note a distinction between third party liability andcontractual benefits: see Morrison, Harrison.

[ 50 ] I accept that there is a distinction, not only because of where the contractual benefits appear in the statute, but also because of their different nature. UMC is not the same as third party liability as the owner or occupant pays a premium for coverage without any expectation of recovery from another insurer. While it must be established that the injuries were likely caused by the unidentified motorist; and attempts to find the unidentified motorist must be made, UMC is statutory and intended to be remedial.

To deny the Bear family the benefit of full coverage under the UMC in the Broeren Policy, in this circumstance, would be an injustice and contrary to their expectations. [ 51 ] As noted by Barbara Billingsley in her text General Principles of Canadian Insurance Law , (LexisNexis Canada Inc. 2014: March 2014). Canadian law closely regulates the insurance industry in two main ways, both of which have a strong element of consumer protection. First, legislation controls insurance companies to ensure they remain solvent and able to meet their financial obligations.

Second, (and relevant for this case), through legislation and common law, insurance law regulates the content and enforceability of insurance contracts. This includes regulation of the substance of the contract; the parties’ obligations under the contract; and the qualifications and responsibilities of intermediaries involved in contract formation. Automobile insurance is one of the most heavily regulated areas of insurance law, linked to the government’s responsibility for road safety.

One of the purposes is to provide public protection against loss and injury suffered by people involved in automobile accidents (pp. 2-3 of Billingsley). [ 52 ] I observe that the statutory and contractual provision of coverage for people injured or killed by uninsured or unidentified motorists is consistent with this general purpose of public and consumer protection. [ 53 ] Wawanesa raised the concern that there is no precedent for an insured to choose which policy may apply to him when there are multiple applicable UMC provisions.

This analysis, they say, is result-oriented and convenient on the facts of this case. [ 54 ] Although it may superficially appear that this is the case, in the absence of a specific statutory or policy provision for priorities for UMC, and with the existence of available coverage under both policies for both occupants,

interpretation should be consistent with the general expectations of the parties, as well as in keeping with the general intent of the legislature. Consumer and public protection and ensuring enforceability of contracts of insurance, are acknowledged purposes of insurance law. Viewing this situation from a remedial perspective, those purposes are best fulfilled by ensuring that each of the claimants entitled to recovery after this unfortunate and tragic accident can be satisfied by the contract to which they agreed, or were covered by.

CONCLUSION [ 55 ] The Bear claimants are entitled to recovery under the Broeren Policy. Mr. Joe is entitled to UMC recovery under the Joe Policy. ___________________________ DUNCAN J. APPENDIX “A” Insurance Act , R.S.Y. 2002, c. 119 172(1) Subject to

section 154, insurance under a contract evidenced by a valid owner’s policy is in respect of liability arising from or occurring in connection with the ownership, use, or operation of an automobile owned by the insured named in the contract and within the description or definition thereof in the policy, a first loss insurance and insurance attaching under any other valid motor vehicle liability policy is excess insurance only.

(2) Subject to sections 154, 163, and 164 and to subsection (1) of this section, if the insured named in a contract has or places any other valid insurance, whether against liability for the ownership, use or operation of or against loss of or damage to an automobile or otherwise, or their interest in the subject matter of the contract or any part thereof, the insurer is liable only for its rateable proportion of any liability, expense, loss or damage. (3) “Rateable proportion” as used in subsection (2) means, (

a) if there are two insurers liable and each has the same policy limits, each of the insurers shall share equally in any liability, expense, loss, or damage;

(

b) if there are two insurers liable with different policy limits, the insurers shall share equally up to the limit of the smaller policy limit; and (

c) if there are more than two insurers liable, paragraphs (

a) and (

b) apply mutatis mutandis . APPENDIX “B” Insurance Act , R.S.Y. 2002, c. 119 Uninsured motorist cover 162(1) If an insurer provides in a contract insurance against loss resulting from bodily injury to or the death of a person insured arising out of an accident involving an automobile when, (

a) there is legal liability of another person for the injury or death; and (

b) the other person has no insurance against their liability therefor or that person cannot be identified, that insurance applies only in respect of (

c) any person who sustains bodily injury or death while driving, being carried in or on, or entering or getting onto or alighting from the described automobile in respect of which automobile liability insurance is provided under the contract; and (

d) the insured named in the contract and the insured’s spouse and any dependent relative residing in the same dwelling premises as the insured named in the contract who sustains bodily injury or death while driving, being carried in or on, or entering or getting onto or alighting from, or as a result of being struck by any other automobile that is defined in the contract for the purposes of that insurance.

(2) The insurance mentioned in subsection (1) does not apply in respect of a person specified therein who has a right of recovery under an unsatisfied judgment fund or a similar fund in any province or of any state or the District of Columbia of the United States of America. S.Y. 2002, c.119, s.162. … First liability 167(1) If a person entitled to benefits provided by insurance under sections 163 and 164 or either of them, (

a) is an occupant of a motor vehicle involved in an accident, the insurer of the owner of the motor vehicle shall, in the first instance, be liable for payment of the benefits provided by the insurance; or (

b) is a pedestrian and is struck by a motor vehicle, the insurer of the owner of the motor vehicle shall, in the first instance, be liable for the payment of the benefits provided by the insurance.

(2) Nothing in this

section affects the operation of subsections 163(2) to (5) and subsection 164(2). S.Y. 2002, c.119, s.167.

… Other insurance 172(1) Subject to

section 154, insurance under a contract evidenced by a valid owner’s policy is in respect of liability arising from or occurring in connection with the ownership, use, or operation of an automobile owned by the insured named in the contract and within the description or definition thereof in the policy, a first loss insurance and insurance attaching under any other valid motor vehicle liability policy is excess insurance only. Yukon Standard Automobile Policy (S.P.F. No. 1)

Section B – Accident Benefits … Subsection 3 – Uninsured Motorist Cover All sums which every insured person shall be legally entitled to recover as damages for bodily injury, and all sums which any other person shall be legally entitled to recover as damages because of the death of any insured person, from the owner or driver of an uninsured or unidentified automobile as defined herein.

(1) The Insurer shall not be liable under this subsection,

a) to any person who has a right of recovery under an unsatisfied judgment or similar fund or plan in effect in any jurisdiction of Canada or the United States of America;

b) to any person who, without the written consent of the Insurer, makes directly or through his representative any settlement with or prosecutes to judgement any action against any person or organization which may be legally liable therefore;

c) for any amount in excess of the minimum limit(

s) for automobile bodily injury liability insurance applicable in the jurisdiction in which the accident occurs regardless of the number of persons so injured or killed, but in no event shall such limit(

s) exceed the minimum limit(

s) applicable in the jurisdiction stated in Item 1 of the application.

(2) Uninsured automobile defined An “uninsured automobile” under this

section means an automobile with respect to which neither the owner nor driver there-of has applicable and collectible bodily injury liability insurance for its ownership, use or operation, but shall not include an automobile owned or registered in the name of

a) the named insured or by any person residing the same dwelling premises therewith; or

b) the governments of Canada or the United States of America or any political sub-division thereof or any agency or corporation owned or controlled by any of them; or

c) any person who is an authorized self-insurer within the meaning of a financial or safety responsibility law; or

d) any person who has filed a bond or otherwise given proof of financial responsibility with respect to his liability for the ownership, use or operation of automobiles.

(3) Unidentified automobile defined An “unidentified” automobile under this subsection means an automobile which causes bodily injury or death to an insured person arising out of physical contact of such automobile with the automobile of which the insured person is an occupant at the time of the accident, provided

a) the identity of either the owner or driver of such automobile cannot be ascertained, and

b) the insured person or someone on his behalf has reported the accident within 24 hours to a police, peace or judicial officer or to an administrator of motor vehicle laws and shall have filed with the Insurer within 30 days thereafter a statement under oath that the insured person or his legal representative has a cause or causes of action arising out of such accident for damages against a person or persons who identity cannot be ascertained and setting forth the facts in support thereof; and

c) at the request of the Insurer, the insured person or his legal representative makes available for inspection the automobile of which the insured person was an occupant at the time of the accident.

(4) Limitation of liability

a) if claim is made under this subsection and claim is also made against any person who is an insured under

section A – Third Party Liability of this policy, any payment under this subsection shall be applied in reduction of any amount which the insured person may be entitled to recover from any person who is insured under

section A;

b) any payment made under

Section A or under subsections 1 or 2 of

section B of this policy to an insured person hereunder shall be applied in reduction of any amount which such person may be entitled to recover under this subsection.

(5) Determination of legal liability and amount of damages The determination as to whether the insured person shall be legally entitled to recover damages and if so entitled, the amount thereof, shall be made by agreement between the insured person and the Insurer.

If any difference arises between the insured person and the Insurer as to whether the insured person is legally entitled to recover damages and, if so entitled, as to the amount thereof these questions shall be submitted to arbitration of some person to be chosen by both parties, or if they cannot agree on one person, then by two persons, one to be chosen by the insured person and the other by the Insurer, and a third person to be appointed by the persons so chosen. The submission shall be subject to the provisions of the Arbitration Act and the award shall be binding upon the parties.

(6) Notice of legal action If, before the Insurer makes payment of loss hereunder, the insured person or his representative shall institute any legal action for bodily injury or death against any other person owning or operating an automobile involved in the accident, a copy of the writ of summons or other process served in connection with such legal action shall be forwarded immediately to the Insurer. …