of the vehicle despite being on vacation, which the arbitrator
described as “sufficient residual control to make her a deemed
 Thus, each of the two decisions relied upon by the Arbitrator involved situations in which the claiming party made
actual use of the vehicle that was the subject of the policy. By
contrast, in the present case, the evidence is uncontradicted
that at no time did Mr. Ekstein make use of any of the company
vehicles. Indeed, most of the vehicles insured by the CNA policy
were tractor-trailers, although some were smaller trucks used in
the business operations of the company. Although, because he
was the president, CEO and owner of the company, it was theoretically open to Mr. Ekstein to have access to and choose to
drive any of the insured vehicles, he never did so. The only vehicles that he actually drove were expressly insured under his
personal Chubb policy.
 Thus, while there was an element of so-called “residual
control” over the vehicles covered by the CNA policy, what is
missing in this case is any evidence of those vehicles “being made
available for [Mr. Ekstein's] regular use”.
 In my view, it was unreasonable for the Arbitrator to
impute regular usage to Mr. Ekstein when none existed. His
decision contains no proper analysis of the evidence before him
addressing the regular use provisions of s. 3(7)(f) in relation to
the facts of this case. The Arbitrator failed to consider Mr.
Ekstein’s evidence that he never used a company vehicle prior
to or at the time of the accident, or that a company vehicle was
not being made available to him at the time of the accident. In
so doing, the Arbitrator failed to follow the analytical approach
set out in such cases as ACE INA Insurance v. Co-operators
General Insurance Co.,  O.J. No. 1276, 2009 CanLII
 I conclude that the Arbitrator’s decision is unreasonable
because he failed to carry out the proper analysis, it is inconsistent with underlying legal principles, and the outcome ignores
or cannot be supported by the evidence. To the contrary, the evidence supports the finding that no automobiles that were subject
to the CNA policy were made available for Mr. Ekstein’s regular
use by the company. Since the outcome ignores that uncontroverted fact, I find it is unreasonable.
 In light of the foregoing conclusion, the Arbitrator’s finding that CNA is the priority insurer by reason of the “deemed
insured” provisions of s. 3(7)(f) of the SABS cannot stand, and
must be set aside.