COURT OF APPEAL FOR ONTARIO

DATE: 20061005

DOCKET: C44070

RE:

BAIN THOMPSON, LORNA PAYNE, and JORDAN PAYNE (minor), LYNDEN THOMPSON (minor) and ALICIA THOMPSON (minor) by their Litigation Guardian, BAIN THOMPSON (Plaintiffs/Appellants) – and – ING HALIFAX, FORMERLY KNOWN AS HALIFAX INSURANCE COMPANY (Defendant/Respondent)

BEFORE:

DOHERTY, SIMMONS and ROULEAU JJ.A.

COUNSEL:

John S. McNeil

for the plaintiffs/appellants

W.A. McClelland

for the respondent

HEARD & RELEASED ORALLY:

September 29, 2006

On appeal from the judgment of Justice John F. McGarry of the Superior Court of Justice dated July 28, 2005.

E N D O R S E M E N T

[1] This is an appeal by the plaintiffs from the judgment of McGarry J. dismissing their action on the basis that the trial judge erred in finding that “the lack of cooperation by the insureds by not responding to the letters or communicating in any other way amounts to a substantial and material breach of their insurance policy.”

[2] Counsel agree that this is a finding of fact and that they must establish palpable and overriding error.

[3] We are not satisfied that the trial judge made any material misapprehension of the facts. The findings of the trial judge are supported by the record. The incident was not reported to the insurer until the statement of claim was issued some eight months after the incident occurred. This despite the fact that some five months prior to the issuance of the statement of claim the insureds had received notice that a claim would be made.

[4] The insurer was unable to contact the insureds by phone and had little information regarding the claim. There were three letters sent by the insurer indicating a need to establish contact. These were apparently received by the insureds but never responded to. In these circumstances, we see no error in the trial judge’s finding.

[5] The appeal is therefore dismissed with costs to the respondent on a partial indemnity basis in the amount of $4,000 inclusive of GST and disbursements.

“D. Doherty J.A.”

“J.M. Simmons J.A.”

“Paul S. Rouleau J.A.”