Advance payments payable by a Defendant’s auto insurer under the Fair Practices Regulation are not payable by an underinsured driver, nor are they payable by the Plaintiff’s own SEF 44 Endorsement or the Motor Vehicle Accident Claims fund.

Brooks v Nand, 2019 ABQB 861, per Dunlop, J.

Facts + Issues

The Plaintiff Brooks tried to stop Bhamra from stealing Brooks’ car and, in so doing, pulled Bhamra from his vehicle. While Brooks was doing that Brooks was hit by a stolen vehicle operated by the Defendant Nand, suffering injuries. Brooks sought indemnity from his own insurer under his SEF 44 Endorsement. The Administrator of the Motor Vehicle Accident Claims Fund defended Nand, who had been noted in default.

Brooks applied for an advance payment from Nand, notwithstanding that Nand was uninsured based on “the equity of the Court”. He relied on an Affidavit to the effect that he was “in dire need of funds”. He had not worked for four years since the accident and had moved into his mother’s basement.

HELD: For the Defendant; application dismissed.

The Court held that an advance was not payable by an uninsured driver.

1. It was common ground that the legislation regarding advance payments, the Fair Practices Regulation, AR 128/ 2001 was inapplicable in that it provides for injured plaintiffs to seek an advance from the at-fault driver’s insurer.
    
2. The Court rejected the proposition that the wording of the Regulation creates an inequity by allowing for advances to be sought from the insurer of insured drivers but not from uninsured drivers themselves. The Court, expressly sympathetic to the Plaintiff’s position held that “[t]here may be an unintended gap created by the wording of the Insurance Act, the Fair Practices Regulation, the Motor Vehicle Accident Claims Act and, possibly the SEF 44” but “on the other hand it may be an intentional gap” (para. 7). The Court held that this was for the Legislature to address.

Furthermore, the Court held that an advance under the Regulation was not payable by Brooks’ SEF 44 insurer or the Fund:

[3] Mr. Brooks bases his claim for an advance payment on “the equity of the court”. His counsel acknowledges that section 5.6 of the Fair Practices Regulation, AR128/2001, which enables the Court to order advance payments from a defendant’s insurer in a motor vehicle liability claim, does not apply because Wawanesa is Mr. Brooks’ SEF 44 insurer, and not the insurer of one of the defendants. The Administrator filed a Statement of Defence on behalf of Mr. Nand, but section 5.6 does not apply to the Administrator because the Administrator is not Mr. Nand’s insurer.