when he found that Mr. Ekstein was a “deemed named insured”
under the CNA policy. As a result, the argument continued, since
Mr. Ekstein was a “named insured” under the Chubb policy only,
pursuant to s. 268(5) of the Insurance Act he was obliged to claim
statutory accident benefits from Chubb.
 In response to the CNA submissions, both Chubb and Mr.
Ekstein submitted that the Arbitrator had reached a correct and
reasonable conclusion in relation to the deemed named insured
issue. In addition, they pointed out that the CNA policy included
the rights conferred under Endorsement OPCF-47 (reproduced in
Appendix D), which effectively provided that CNA could not rely
on the priority of payment rules in s. 268 of the Insurance Act.
They therefore argued that, in any event, CNA was liable to pay
statutory accident benefits as well as the increased optional benefits to Mr. Ekstein.
 In the course of his reply submissions, counsel for CNA
conceded that the CNA policy included the OPCF-47 endorsement
and that Mr. Ekstein was entitled to the benefit of OPCF-47.
As such, Mr. Ekstein was entitled to look to CNA for payment
of the enhanced $1 million of extra medical and rehabilitation
costs purchased pursuant to the optional coverage. Counsel for
CNA maintained, however, that, as between CNA and Chubb,
responsibility for the basic statutory benefits was to be determined according to the priority rules set out in s. 268 of the
Insurance Act, arguing that a contract between CNA and Mr.
Ekstein could not serve to displace the statutory rights regarding insurers’ liability for payment of statutory accident benefits as between themselves. To the extent that CNA paid basic
statutory benefits to Mr. Ekstein, the argument continued, it
had a right of indemnity from Chubb.
 CNA’s position in relation to the survival of its right of
indemnity from Chubb by reason of the priority rules as between
insurers was not expressly raised in its notice of appeal or its factum. Nor was that topic addressed in CNA’s argument in chief.
As a result, counsel for Chubb objected to CNA being permitted
to advance this line of argument. Rather than have counsel present arguments extemporaneously without deliberation or supporting authority, I directed that the argument of the application
be adjourned so that all parties could consider and confirm their
positions. Counsel for CNA subsequently confirmed in writing his
client's concession on Mr. Ekstein’s entitlement to the benefit of
the optional coverage under the CNA policy. On this basis, Mr.
Ekstein and his counsel withdrew from the proceedings.
 I subsequently conducted a case conference by telephone
conference call with, and received further written submissions