BROWN & PARTNERS LLP SABS SUMMARIES JANUARY 2016

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1 Case Name Zhang and State Farm Mutual Automobile Insurance Company, FSCO Appeal P Date January 13, 2016 Date of Loss June 1, 2009 Director s David Evans Delegate Should the appeal from the arbitrator s order of the claimant to attend an Examination Under Oath and stay the arbitration be allowed? The Insurer requested the claimant attend an EUO. The claimant would not attend until IRBs were reinstated. The Insurer brought a motion at FSCO requiring his attendance. Arbitrator Musson found the EUO reasonable and necessary and ordered the claimant to attend and adjourned the arbitration sine die until the claimant attended. The appeal is allowed. Arbitrator Musson had no power to compel attendance of the claimant to attend the EUO. The case law did not allow for such a remedy. In Troubitsine and TTC Insurance where a stay had been ordered but then overturned on appeal it was noted the FSCO process does not include examinations for discovery and the available remedy of suspending benefits does already addresses fairness adequately. There was no authority to re-write s. 33 as the arbitrator did. 1

2 Case Name Gonzalez-Izquieta and RBC General Insurance Company, FSCO A Date February 1, 2016 Date of Loss May 13, 2013 Arbitrator Jeffrey Shapiro Is the arbitration barred by operation of s. 268(1.1) of the Insurance Act? The applicant was the occupant of a TTC bus that swerved to avoid another vehicle successfully, but applicant fell inside the bus and sustained injuries. The applicant applied for accident benefits from the Insurer. The Insurer denied the benefits on the basis that due to the no crash, no cash provision of the Insurance Act in regard to TTC vehicles, they did not have to pay. The applicant argued that only applied to people making claims to TTC Insurance Company and not to their own accident benefit providers. The arbitration is barred by s. 268(1.1) of the Insurance Act. The Insurer was correct in that s. 268(1.1) does not differentiate between sources of accident benefits and simply stated no accident benefits are payable. There was no absurdity in these consequences, or the fact there are enhanced tort rights against the TTC but not the at-fault driver who caused the TTC bus to swerve. The legislation was very clear. 2

3 Case Name Vandergaag and Aviva Canada Inc., FSCO A Date February 1, 2016 Date of Loss January 4, 2007 Arbitrator Irvin H. Sherman, Q.C. Is the applicant catastrophically impaired? Is the applicant entitled to an OCF-18 in the amount of $7, for therapy support services? The applicant was 8 years of age and a passenger in a vehicle that was involved in a serious single car accident. The mother, the driver, was off work for 3 years after the accident and the applicant s brothers were also injured. It was not disputed the applicant suffered serious injuries requiring hospital stays and an airlifting from the scene. She was in a body cast for 4 months due to her lower back fracture. She saw the Acquired Brain Injury team. The applicant s CAT assessors, Dr. Cancelliare and Dr. Kaplan, found her marked in at two of the four domains, or Activities of Daily Living and Adaptation to Work. The other two domains were moderate to marked. The Insurer denied she was CAT based on the fact her mental and behavioural issues have resolved and that any issues are due to her preexisting learning disability. Her trajectory was normal for someone with her learning disability. The applicant is catastrophically impaired and entitled to the medical benefits sought. The arbitrator had a discussion in regard to causation. The Insurer relied on recent case law of Blake and Clements to argue for a but for causation, but this was rejected by the arbitrator who preferred the material contribution test in Monks. As such, the question was whether the MVA materially contributed to the applicant s condition. The arbitrator rejected the Insurer CAT neuropsychological testing of Dr. MacNiven, as the doctor admitted her concept of trajectory was speculative on her part. She also did not get further collateral information from other sources. Dr. MacNiven also rejected the idea the applicant suffered a brain injury. The arbitrator preferred the applicant s evidence and concluded the applicant suffered a brain injury and continued to suffer from it. Further, based on GOS, she is CAT. As such, the applicant was CAT under both s. 2(1.2)(e) and (g). 3

4 Case Name Marfo et al and Pafco Insurance Company, FSCO A and FSCO A Date January 25, 2016 Date of Loss December 19, 2010 Arbitrator Louise Barrington Preliminary Issue hearing - were the applicants involved in an accident as defined in the Schedule and is the insurer justified in denying the claims because of wilful misrepresentation? The applicants, mother (passenger) and son (driver), were driving home after a Ghanaian community event. The son s friend was in the back seat. After dropping of the friend, they were travelling on the road, when a vehicle appeared in the lane from a private driveway, and a collision occurred. Airbags did not deploy. There were no skid marks. The investigating police officer believed it was a stage accident based on the position of the vehicles and the speed the drivers said they were travelling. Other suspicious indicia included: everyone in both vehicles was injured, both vehicles were purchased within past 6 months, the applicant recently purchased insurance, and vague statements on how the accident occurred. At the hearing, the son estimated the other car was going km/h. His mother was asleep when the accident happened and had no recollection. The son denied deliberately causing the accident. He was not charged. He was unable to locate his friend to testify. The applicants forensic expert put the applicants vehicle at km/h and the other driver at stopped or near-stopped at impact. He said the airbags could have malfunctioned and applying brakes on dry roads would not necessarily leave skid marks. The insurer s accident reconstruction expert concluded that the applicant s vehicle hit the other vehicle at a right angle, while travelling 40 km/h while the other vehicle was stopped. The insurer denied coverage on the ground that the collision was staged. The insurer argued the son changed his story after seeing their expert report and he was inconsistent and vague during testimony. They also relied on the indicia listed by the police that the accident was staged. The applicants were involved in an accident. They did not wilfully misrepresent their claims. The evidence from both sides shows it was undisputed that a collision took place. Minor differences in conclusions regarding the applicant s speed were immaterial. Both experts agreed it was not a minor accident and one would expect injuries and vehicular damage from such as impact. The arbitrator did not agree the lack of corroboration necessities an adverse inference. He found the applicants to be credible witnesses. The evidence in support of the insurer s allegation of misrepresentation is circumstantial or based on assumptions made by the investigating officer. The other factors considered to be red flags arousing suspicion were reasonably explained by the son, whose narrative the arbitrator found plausible. 4

5 Case Name Beckles and Aviva Canada Inc., FSCO A Date January 21, 2016 Date of Loss July 2, 2012 Arbitrator Barry S. Arbus, Q.C. Does the applicant have the mental capacity to proceed in the dispute resolution process? If not, should the applicant s brother be appointed to act on his behalf pursuant to Rule 10.5 of the Dispute Resolution Practice Code (DRPC)? The 69 year old applicant gave oral evidence at the preliminary hearing. He gave evidence that he was forgetful which is why he failed to attend a number of the pre-hearings and other appointments scheduled by the insurer. Medical records from the applicant s family doctor prior to the accident confirmed a diagnosis of early dementia. The applicant s brother, Rudolph Beckles, a nurse by training and currently employed as a TTC driver trainer, testified that he has witnessed his brother suffer through progressive early dementia over the past number of years. Mr. Beckles indicated his willingness to act as the party to receive and administer statutory benefits on behalf of his brother. The applicant verbalized his consent to having his brother act in this capacity, as did the representatives of the insurer. The applicant lacks the mental capacity to proceed in the dispute resolution process, and it is appropriate to appoint Rudolph Beckles to proceed in the dispute resolution process and receive and administer statutory accident benefits on behalf of the applicant. On cross-examination, it became clear to the arbitrator from the totality of the evidence both the applicant s testimony and medical records that the applicant was suffering from memory loss and early dementia before the accident in question. The arbitrator was satisfied that the applicant lacked the mental capacity to proceed in the dispute resolution process, pursuant to Rule 10.3 of the DRPC, and supported the applicant s consent to appoint his brother to proceed in this matter, pursuant to Rule

6 Case Name Federico and State Farm Mutual Automobile Insurance Company, FSCO Appeal P Date January 21, 2016 Date of Loss December 22, 2007 Delegate David Evans The applicant appealed the arbitrator s refusal to award her a special award. In his decision, the arbitrator found that the applicant was entitled to two treatment plans but she was not entitled to a special award. The issue of entitlement to, and the amount of a special award, if any, was returned to arbitration for redetermination. Delegate Evans found the arbitrator s reasons to be conclusory because he did not explain how the evidence leads to his conclusions. The arbitrator did not deal with the specific evidence presented by the applicant but gave boilerplate reasons that could apply equally to any case. Further, the arbitrator concluded that there was overwhelming evidence that when the treatment plans were submitted, she required the treatment. Delegate Evans found it difficult to square that finding with the finding that the insurer did not improperly fail to consider the totality of the evidence. 6

7 Case Name Warsame and State Farm Mutual Automobile Insurance Company, FSCO A Date January 6, 2016 Date of Loss June 17, 2010 Arbitrator Richard Quan Preliminary Issue two year limitation period to apply for caregiver benefits. The applicant elected to receive caregiver benefits. The insurer conducted IEs to assess caregiver benefits. On April 1, 2011, the insurer denied entitlement to caregiver benefits by way of OCF-9. The applicant applied for mediation on April 7, 2014 seeking caregiver and non-earner benefits. He filed for arbitration on August 7, 2014 for caregiver benefits up to the two year mark and non-earner benefits beyond that date. The insurer argued that the applicant s claim was statute barred for not applying for mediation with two years. The applicant s claim is statue barred. The insurer gave the applicant proper written notice of the stoppage of benefits. The OCF-9 fulfills the requirements of section 54 of the Schedule, has triggered the limitation period in section 56 of the Schedule and has met those principles enunciated in Smith v. Co-Operators. 7

8 Case Name Ward and State Farm Mutual Automobile Insurance Company, FSCO A Date January 15, 2016 Date of Loss October 18, 2007 Arbitrator Chuck Matheson Is the applicant precluded from proceeding to arbitration on the issues of income replacement benefits (IRBs), transportation and prescription expenses, and case management services? The applicant had been receiving IRBs since the date of loss. In September 2014, the insurer requested that the applicant attend four s.44 insurers examinations (IEs) to evaluate continued IRB entitlement. As the applicant did not attend the IEs, the insurer sought to preclude the applicant from proceeding to arbitration by virtue of s.55(2) of the SABS. The applicant argued that the insurer did not give proper notice to the applicant pursuant to s.44(5)(a), which states that the insurer must provide medical reasons for the request, and is supposed to convey enough information to the unsophisticated insured so the applicant knows whether he or she wants to continue with the claimed benefit or not. With regard to the case management services, the applicant submitted an OCF-18 dated March 2, 2015, and the insurer again requested an s.44 IE. The applicant did not attend the IE on the basis of the above argument. With regard to the transportation and prescription expenses, the applicant did not submit OCF-18s. The insurer argued that since the applicant did not submit treatment plans, the issues should be stayed until the applicant attends s.44 IEs after submitting treatment plans for same. The applicant may proceed to arbitration on all issues. With regard to the IRB and case management issues, the arbitrator reviewed the s.44 notice letters and found that the notices failed to give medical or other reasons as required by section 44(5)(a) of the SABS. There was only a single reason given for the IE request. It is clear that the word reasons is plural, meaning more than one. Further, the arbitrator found that the reason given was not a medical reason. Therefore the arbitrator found that the applicant may proceed to arbitration on the issues of IRB and case management services. With regard to the transportation and prescription expenses, the arbitrator found that treatment plans were not required to be submitted to the insurer for these specific expenses. Therefore a s.44 examination is not available to the insurer to assess the necessity and reasonableness of these expenses. Therefore the arbitrator found that the applicant can proceed to arbitration on these issues. 8

9 Case Name Hoskins v. Co-operators, 2016 ONSC 837 Date February 3, 2016 Date of Loss July 10, 2010 Justice R.F. Goldstein Is the insurer entitled to partial summary judgment because the plaintiff did not mediate post-104 week IRB within two years of the denial? The plaintiff applied for mediation with respect to IRB and other issues on December 13, She did not check the box indicating that post-104 week IRB were in dispute. Plaintiff s counsel subsequently wrote to the insurer advising that IRB from the date of loss to date and ongoing were in dispute. The insurer terminated IRB on July 6, 2012 based on post-104 week assessments. The mediation was held on January 31, The Report of Mediator indicated that IRB from the date of loss to date and ongoing were in dispute and resolved. The insurer agreed to pay IRB up to 104 weeks. The insurer brought this motion for partial summary judgment with respect to IRB. It argued that the plaintiff did not mediate post-104 week IRB within 2 years of the denial, so her claim was statute-barred. The plaintiff argued that post-104 week IRB was in dispute at the mediation and it did not resolve. Partial summary judgment motion denied. Post-104 week IRB were mediated and that mediation failed. Justice Goldstein held that post-104 week IRB were mediated. It is not surprising that the box on the Application for Mediation indicating post-104 week IRB were in dispute was not checked because it was completed less than 104 weeks post-accident. The insurer behaved as if post-104 week IRB were a live issue by continuing to require the plaintiff to attend assessments, even after the mediation. Justice Goldstein held that the mediation of post-104 week IRB failed. The Report of Mediator is ambiguous, at worst it is wrong. Both parties continued to act as if post-104 week IRB were still in dispute following the mediation. The plaintiff filed the Statement of Claim seeking post-104 week IRB. The insurer arranged more assessments to determine the plaintiff s entitlement to post-104 week IRB. The mediator did not resolve the issue of post-104 week IRB even though the issue was before him. 9

10 Case Name Nadesu and Zurich Insurance Company, FSCO A Date January 22, 2016 Date of Loss September 7, 2003 Arbitrator Jeffery Rogers Interest that accrues on attendant care benefits (ACBs) ordered to the applicant. The ACB claim was added to arbitration shortly before the hearing started in June 2010 (7 years after the accident). In his May 27, 2015 decision, the arbitrator awarded ACBs from April 2006 to present and ongoing. The applicant claims interest from April As per s.46 of the Schedule, the applicant s entitlement to interest is triggered when the payment becomes overdue, meaning when he applied for ACBs. The applicant did not submit an Assessment of Attendant Care Needs ( Assessment ) until March He argues that he should be deemed to have applied earlier because the insurer should have been aware of his need for ACBs. The insurer argues that delivery of the Assessment is critical to making the application. Interest on ACBs to be paid from March 16, 2010, being 10 business days from the date the applicant delivered an Assessment. The arbitrator followed the recent Divisional Court decision in Grigoroff v. Wawanesa, 2015 ONSC 3585, where the court concluded the delivery of the Assessment is critical to entitlement to interest. In enforcing the strict terms of section 39(1), the Divisional Court left no room for distinguishing this case on the facts and ruled out the deemed application approach the Arbitrator took in the decision in TN and Personal Insurance Company of Canada (TN was decided before Grigoroff). The arbitrator concluded that the TN approach cannot be reconciled with the ruling in Grigoroff that the application for ACBs must be in the prescribed form. 10

11 Case Name Jing and State Farm Mutual Automobile Insurance Company, FSCO A & A Date January 15, 2016 Date of Loss February 18, 2009 and August 8, 2009 Arbitrator Arbitrator Irvin H. Sherman, Q.C. With respect to the first accident, is the applicant entitled to 5 relaxation CDs for $920.41? With respect to the second accident, is the applicant entitled to seven (7) treatments totalling $10,404.54? The applicant suffered back pain as a result of the first accident, and further suffered neck and back injuries and psychological issues as a result of his second accident. The applicant did not see his family doctor with regard to the accidents until November 2010, over one year after the second accident. At that time his family doctor recorded that the applicant s pain would resolve in 1-2 days, as well as no prior medical history or psychological issues. In 2009 and 2010, the insurer was inundated with 75 OCF-18s, including 25 in the three month period ending in August The insurer paid $83, in accident benefits on behalf of the applicant, and $44, of that was paid to Fairview and Pacific clinics. The insurer argued that the applicant relied on the procedural loophole found in s.38(8) of the SABS 403/96 that resulted in otherwise unreasonable and unnecessary assessments being deemed approved. The applicant is entitled to five of the eight submitted treatment plans. The treatment plans for relaxation CDs and a sound therapy system was a duplicate of another treatment plan already paid by the insurer. For another treatment plan, Avi Davis, social worker, testified that his draft report differed from the report electronically signed on his behalf by Pacific clinic. The final report recommended treatment, which was not included in his draft report. The arbitrator found these three treatment plans were not payable. The arbitrator found that the other treatment plans were payable. He found that the insurer had the opportunity to refuse to pay the medical benefits in question, and the right to have the applicant attend independent medical examinations. The arbitrator found that he had no equitable or discretionary jurisdiction to provide relief from the mandatory provisions of s.38(8). He further found that the treatment plans did not need to be incurred for them to be payable. The arbitrator did not award a special award. State Farm stopped paying Fairview and Pacific Assessment Centres because it was flooded with treatment plans in a scheme to circumvent the reasonable operation of the legislation. This was reasonable in the circumstances of the case. 11

12 Case Name Huang and State Farm Mutual Automobile Insurance Company, FSCO A Date January 29, 2016 Date of Loss October 18, 2009 Arbitrator Marshall Scnhapp Is the applicant entitled to various medical benefits, cost of examinations, interest, costs and a special award? All of the benefits in dispute were submitted by Pacific Assessment Centre or Fairview Assessment Centre. The applicant testified but had very little independent recollection with respect to the treatment plans in dispute. He explained that he was not home when the assistive devices were delivered to him. His landlord or his mother would sign the applicant s name for the goods but he could not explain why they would not sign their own names. He also did not know who wrote the dates next to the signatures on the receipt forms. Dr. Altman and Dr. Getahun testified on behalf of the insurer that there were numerous instances where their names and signatures were used without their authorization or pertaining to treatment plans they did not generate. Although these specific treatment plans were not in dispute, the arbitrator considered them as background to deciding the issues in dispute. The applicant is not entitled to any relief sought. The arbitrator did not give the delivery forms any weight given the questionable evidence noted above. The arbitrator considered each treatment plan in dispute and found that the applicant was not able to prove, on a balance of probabilities, a specific date when the items were received and whether he received them before or after the treatment plan was submitted. Thus, he was not entitled to payment. As for the driver/passenger on-road evaluation assessment in dispute, signed by Dr. Steiner, the applicant stated he was never taken out on the road nor was he able to recall any interview or assessment. Dr. Steiner was not a helpful witness as he never met the applicant; had no recollection about the forms/assessment; and could not explain why the driver evaluation did not take place. Thus, the applicant was not entitled to the cost of assessment. As he was not entitled to any benefits in dispute, he was not entitled to a special award. 12

13 Case Name Li and State Farm Mutual Automobile Insurance Company, FSCO A Date January 29, 2016 Date of Loss January 14, 2010 Arbitrator Janette Mills Is the applicant entitled to various medical benefits, cost of examinations, interest, costs and a special award? The applicant submitted various treatment and assessment plans from Fairview Assessment Centre and Pacific Assessment Centre between January and August In January 2011, the insurer provided an OCF-9 stating that it could not consider the treatment plans because the insurer was in a dispute with both assessment centres. The applicant argued that the insurer did not properly deny the benefits, in accordance with the SABS. The insurer argued that while it did not meet the SABS notice provisions, the claims were not reasonable and the insurer was not required to pay for same. The applicant is entitled to all relief sought including a special award. The arbitrator found that the insurer has to consider the treatment plans pursuant to sections 38 and 39 of the SABS before rejecting them. The insurer did not actually deny the benefits on a basis that they were not reasonable and necessary. Also, at no point before January 2011, did the insurer raise any concerns about the applicant s application for accident benefits or the treatment plans. Thus, the insurer did not comply with the notice provisions of the SABS. The arbitrator found the applicant and the witnesses from the assessment centres to be credible. All the treatment plans/assessments were incurred after the requisite deadlines and before the insurer s denial, and as such were payable with interest. The arbitrator heavily referenced the decision of Lin and State Farm, which was issued 5 months before this hearing. The issues, arguments and insurer were the same in the Lin case. However, the insurer still chose to re-litigate this issue with this arbitration. The arbitrator concluded that the insurer acted unreasonably in withholding payments and awarded the maximum amount of special award, i.e. 50% of the amount, with interest, owed. 13

14 Case Name Unayuk and Wawanes Mutual Insurance Company, FSCO A Date January 18, 2016 Date of Loss March 10, 2012 Arbitrator Harvey Savage Is the applicant entitled to various benefits? At the outset of the hearing, the insurer submitted various photos and texts of the applicant which contradicted her medical evidence. The applicant sought an adjournment in order to retain counsel. Her previous counsel went off the record in November During submissions for the adjournment request, the applicant s father became loud and disruptive to the point of police being called on the premises. The applicant decided to leave, despite the arbitrator advising her that the arbitration may be dismissed. The application for arbitration is dismissed and costs awarded to the insurer. As the applicant abandoned the hearing, the adjournment was denied. Further, the insurer submitted extensive evidence showing that the applicant acted fraudulently. As she did not stay to contradict the evidence, the arbitration was dismissed. 14

15 Case Name Economical v. Northbridge, 2016 ONSC 458 Date January 21, 2016 Date of Loss July 16, 2010 Justice M.D. Faieta Does the $2,000 deductible for loss transfer indemnity apply to every claim for accident benefits paid by the first party insurer or does it only apply to the claim by the named insured? A heavy commercial vehicle insured by Northbridge rear-ended a passenger vehicle insured by Economical. Economical made accident benefits payments to four people as a result of the collision. Economical requested loss transfer from Northbridge with respect to the payments made to each person. Northbridge applied a deductible to the first $2,000 requested by Economical for each of the four claimants. Otherwise, Northbridge reimbursed Economical for the loss transfer amounts sought to date. Arbitrator Samis held that he was bound by the Superior Court s decision in Progressive Casaulty v. Jevco, which held that the $2,000 deductible applied only in respect to the operator of the insured vehicle rather than each person that was paid accident benefits. Even though he disagreed with the decision in Jevco, Arbitrator Samis held that the deductible applies to the request for repayment for the amount paid respecting the named insured. Appeal granted. The $2,000 deductible applies to each person who is paid accident benefits and is not limited to only the named insured or the operator of the vehicle. Justice Faieta disagreed with the decision in Jevco. If the legislation drafters intended for the deductible to only apply to named insureds or operators, it would have said so in the statute. The deductible allows insurers to avoid transaction costs for small claims. Applying the deductible only to claims by the named insured or operator thwarts the objective of the deductible for claims by anyone other than the named insured or operator. 15

16 Case Name Intact v. Federated, 2016 ONSC 719 Date February 2, 2016 Date of Loss April 25, 2010 Justice Diamond Is Federated precluded from leading any evidence and/or re-litigating Intact s former insured s conviction for operating a vehicle without insurance on the date of loss? This is a priority dispute between two insurers. The claimant was a passenger in a vehicle driven by his father when it was involved in a collision. Five days before the collision, Intact cancelled the father s automobile insurance due to non-payment. The father was subsequently convicted of operating a vehicle without insurance. In a preliminary issue hearing, Intact argued that as per s of the Evidence Act, it is an abuse of process for Federated to lead evidence and argue that the father was an insured person as of the date of loss. The private arbitrator disagreed with Intact, so Intact appealed. Appeal is granted. Federated is precluded from leading any evidence and/or re-litigating Intact s former insured s conviction. Evidence Act s states that proof that a person has been convicted anywhere in Canada of a crime is proof that the crime was committed by the person, in the absence of evidence to the contrary. The party seeking to rely on the conviction (Intact) need only prove the conviction. The onus is on the party resisting the application of s (Federated) to lead evidence to the contrary. Federated did not seek an order compelling the father to attend a EUO, nor did it bring a motion compelling Intact to answer undertakings given at an Intact representative s examination. Federated only promised to provide the evidence to the contrary at the arbitration hearing. This is insufficient. The consequences of the conviction (minimum fine of $5,000) were sufficiently significant. Fairness does not dictate that the administration of justice would be better served by permitting Federated to re-litigate the conviction during the arbitration. 16

17 Case Name Dominion v. Optimum, 2016 ONSC 985 Date February 8, 2016 Date of Loss July 22, 2012 and May 18, 2013 Justice Perell Which insurer is liable to pay the claimants accident benefits? Arbitrator Bialkowski determined that Dominion was liable to pay accident benefits in this priority dispute involving two unrelated claimants from unrelated accidents. Dominion appealed Arbitrator Bialkowski s decision. Both claimants were either the driver or passenger in a vehicle insured with Optimum that was involved in a collision. The spouses of both claimants had a policy of insurance with Dominion that at one time had coverage for SABS. Before the respective accidents, both spouses reduced their insurance coverage to comprehensive coverage, which does not provide SABS coverage. In altering the Dominion policy, a Form OPCF-16 (Suspension of Coverage) was not used. Both Dominion policies were renewed one or more times with only comprehensive coverage prior to the respective collisions. Optimum argued that there is no way to convert a motor vehicle liability policy into comprehensive coverage. It must be cancelled and a new policy purchased. Furthermore, an insurer cannot reduce coverage without using an OPCF-16, which Dominion did not do. Dominion argued that the renewal of what had been a motor vehicle liability policy as a comprehensive policy constitutes the creation of a new policy with no SABS coverage. Appeal is dismissed. Arbitrator Bialkowski s decision is upheld and Dominion is liable to pay accident benefits as the priority insurer. Justice Perell accepted Optimum s argument, based on the line of cases starting with Certas v. CGU/Aviva. The only ways to remove coverage is to issue an OPCF-16 or cancel and reissue the policy. Dominion argued that the subsequent renewal of the policy as a comprehensive policy means that a new policy was issued. However, this begs the question of what was renewed and begs the question of whether the insured understood what he or she was purchasing in renewing a policy that at one time included liability coverage. There are sound public policy reasons for requiring the use of OPCF-16s, which was not done in this case. 17