COURT OF APPEAL FOR ONTARIO
LASKIN, SHARPE and MACFARLAND JJ.A.
BETWEEN:
THE ESTATE OF DENISE M. DAY, RAY POGUE, MARGARET POGUE and KRYSTAL-RAE LYNN DAY and KARLA MARGARET DAY, minors by their Litigation Guardian, the said Ray Pogue, and DONNA LYNN POGUE, DARRYL STEVEN POGUE and DOROTHY GARTON
Plaintiffs (Respondents)
and
MLADEN PANDUREVIC and LLOYD'S OF LONDON
Defendants (Respondents)
and
ROYAL & SUNALLIANCE INSURANCE COMPANY, added by Order pursuant to section 258(14) of the Insurance Act, R.S.O. 1990,C.18
Third Party (Appellant)
AND BETWEEN:
BILJANA KOPRIVICA and MAJA KOPRIVICA
and
Plaintiffs (Respondents)
MLADEN PANDUREVIC, ROYAL & SUNALLIANCE INSURANCE COMPANY OF CANADA and LINDSAY DARLING, Litigation Administrator for the Estate of Denise M. Day
Defendants (Royal & Sun Alliance Insurance Company, Appellant)
Paul Tushinski and Gillian B. Eckler for the appellant
R. Steven Baldwin for the respondent, Lloyd’s of London
Heard and released orally: April 4, 2008
On appeal from the judgment of Justice Denise E. Bellamy of the Superior Court of Justice, dated April 18, 2002.
ENDORSEMENT
1The trial judge found as a fact that Mr. Pandurevic’s licence was suspended at the time of the accident. To the extent that knowledge of one’s licence suspension is relevant to whether statutory condition 4(1) has been breached, that knowledge requirement is addressed in s. 52 of the Highway Traffic Act. Here, the respondent concedes that Mr. Pandurevic did not bring himself within the relieving provisions of s. 52 because he received notice of the suspension.
2Accordingly, by driving at the time of the accident, Mr. Pandurevic breached statutory condition 4(1) under the Insurance Act. He was driving when he was not authorized by law to do so.
3We disagree with the trial judge that s. 129 of the Insurance Act can be used to obtain relief from that breach. The judgment of this court in Williams v. York Fire & Casualty Insurance Co. (2007), 2007 ONCA 479, 51 C.C.L.I. (4th) 177, 86 O.R. (3d) 241 (Ont. C.A.) stands for proposition that the court’s power under s. 129 addresses matters to be done in relation to a loss. As Justice MacFarland said at para. 35, whether the insured is authorized by law to drive at the time of the accident is a matter of coverage not a matter concerning proof of loss.
4We need not decide whether s. 98 of the Courts of Justice Act could apply in this situation because even if it could, on the facts of this case, the respondent was not entitled to relief under this provision. To invoke this provision the respondent would at least have to show that Mr. Pandurevic’s conduct was reasonable. In our view, his conduct was anything but reasonable. Twice previously his licence had been suspended. On the day of the accident, he picked up two registered letters from the Ministry of Transportation and claims to have continued to drive without even reading them. This conduct, in our view, demonstrates wilful blindness or recklessness. It is conduct that is incompatible with relief from forfeiture.
5Accordingly, the appeal is allowed and para. 2 of the judgment of Bellamy J. is varied by substituting for the figure of $685,511.29, the figure of $261,011.29. The appellant is therefore entitled to be reimbursed by the respondent for the difference together with post-judgment interest from the date of payment.
6The appellant is entitled to its costs of the appeal in the agreed upon amount of $22,500, all inclusive. The appellant is also entitled to its costs of the trial on a partial indemnity basis to be agreed upon or assessed.
“John Laskin J.A.”
“Robert J. Sharpe J.A.”
“J. MacFarland J.A.”