An insurer that has satisfied its legal requirement for policy cancellation has not automatically proven that the insured knew his policy had been cancelled, an Ontario arbitrator has ruled.
In Ersin Aksoy and Markel Insurance Company of Canada, the Financial Services Commission of Ontario (FSCO) found Markel had to pay Ersin Aksoy income replacement benefits and housekeeping expenses.
Aksoy was confined to a wheelchair after serious injuries he sustained in December 2006, when he lost control of his Jeep Grand Cherokee in Toronto and collided with a tractor-trailer traveling in the same direction.
Markel denied his application for income replacement benefits and housekeeping expenses.
(Kingsway General Insurance Company wrote the policy in 2006, but Markel was the defendant in the arbitration because it handled Aksoy's claim for accident benefits.)
Markel maintained Aksoy knew or ought to have known that he was driving without an insurance policy, which had been cancelled a few months prior to the crash. Kingsway cancelled the policy for non-payment.
FSCO arbitrator Fred Sampliner noted that Kingsway had in fact issued a policy cancellation notice to Aksoy by registered mail to the last-known address the insurer had on file. Aksoy had moved from that address in mid-2006 without notifying the insurer.
The signature on delivery was not Aksoy's name, and Markel argued it was entitled to infer that the person was authorized by Aksoy to pick up his mail for him. Aksoy denied that he ever received the notice of cancellation.
"Markel contends that Canada Post's verifications alone are sufficient evidence that Mr. Aksoy or someone authorized to act for him picked up Kingsway's registered letter, and therefore knew he did not have insurance at the time of the accident," Sampliner wrote. "Case law has established that this issue is an individualized inquiry of the entire circumstances, rather than whether Kingsway satisfied the statutory requirement to send Mr. Aksoy the cancellation notice by registered mail.
"Thus, I reject Markel's position that satisfaction of an insurer's statutory requirement for policy cancellation equates with Markel's burden to prove Mr. Aksoy knew or reasonably ought to have known he did not have insurance."
Kingsway had also advised Aksoy's insurance agent that the policy had been cancelled. But there was conflicting evidence in the arbitration as to whether or not the agent had ever explicitly told Aksoy the policy had been cancelled. (The agent did not keep records of the discussions.)