The appeal by a travel insurer (“RBC Travel”) from an Order that it was solely responsible to pay medical expenses of a driver injured in an accident in the United States was allowed where it was found that the RBC Travel policy clearly indicated it was an excess insurer where other coverage existed for the same loss

RBC Travel Insurance Co. v. Aviva Canada Ltd., [2006] O.J. No. 3773, Ontario Court of Appeal

On July 11, 2003, Jennifer Currie (“Currie”) was injured in a motor vehicle accident in the State of Michigan and, as a result, required emergency medical services in Michigan. At the time of the accident, Currie was insured under two policies: (1) a standard Ontario automobile policy issued by Aviva Canada Ltd. (“Aviva”) and (2) a travel insurance policy issued by RBC Travel. Currie contacted RBC Travel and made an emergency claim for medical expenses. RBC Travel paid the total claim in the sum of $23,960.82 on behalf of Currie. RBC Travel then brought the within proceeding for reimbursement by Aviva of the amount paid on behalf of Currie. On application for summary judgment, the motions judge found that both the RBC Travel policy and the Aviva policy provided primary coverage. As a result, the motions judge’s view was that section 268(6) of the Insurance Act, R.S.O. 1990, c.I.8 applied. That section provides that an automobile policy is “excess to any other insurance not being automobile of the same type”. The motions judge concluded that RBC Travel was solely responsible to pay Currie’s medical expenses. RBC Travel appealed that decision.

The Court of Appeal compared the wordings of the respective policies noting that the RBC Travel policy clearly specified that the travel insurance was excess to both Provincial Health Insurance and any other insurance or benefits plan under which the insured was covered. In contrast, the Aviva policy, in the form of the standard Ontario automobile policy known as OAP1, provided only that payment was not required under the policy for that portion “for which payment is reasonably available to the insured person under any insurance plan ….” The Court noted that the language of the two policies was not easily reconciled.

The Court cited from the case of In Travel Insurance Co-Ordinators v. ING Halifax Insurance Co. (2001), 57 O.R. (3d) 406 (Sup. Ct.) aff’d [2002] O.J. No. 3566 (C.A.) where the Court was asked to consider section 268(6) of the Insurance Act in the context of conflicts between travel insurance and statutory accident benefit coverage. In Travel Insurance (“Travel Insurance”), the Court stated:

…The subsection must, in my opinion, be read as making the SAB excess to any other insurance which is, by its own terms, bound to provide ‘first dollar coverage’. Since the applicant’s policy is, by its own terms, a second payor, s. 268(6) has no effect.

In this case, the Court found that the plain meaning of the RBC Travel policy wording clearly lead to the conclusion that the Travel Policy provided excess coverage where other coverage existed for the same loss. As the RBC Travel Policy, by its own terms, did not provide first payor coverage, the Court held that s. 268(6) had no application. In the result, the appeal was allowed and the decision of the motions judge was set aside.

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