COURT OF APPEAL FOR ONTARIO
Sharpe, Blair and Rouleau JJ.A.
BETWEEN:
Michael Roby Patriquin and Janice Darlene Patriquin
Plaintiffs/Respondents
and
Calvin Gogo, Great Lakes Forest Products and the Estate of Stephen Frederick Marriage
Defendants/Respondents Appellant, Great Lakes Forest Products
and
Dominion of Canada General Insurance Company
Third Party/Respondents
BETWEEN:
Janet Kathleen Marriage, Taylor Rae Marriage, a minor by her Litigation Guardian Janet Kathleen Marriage, Carter Wilson Frederick Marriage, a minor by his Litigation Guardian Janet Kathleen Marriage
Plaintiffs/Respondents
and
Calvin Gogo and 134434 Ontario Inc. Operating As Great Lakes Forest Products and Pilot Insurance Company
Defendants/Respondents Appellant, 134434 Ontario Inc. operating as Great Lakes Forest Products
and
Dominion of Canada General Insurance Company
Third Party/Respondents
David S. Thompson, for Great Lakes Forest Products
Bradley W. Stone and Lucy Lee for Dominion of Canada General Insurance Company
Heard & released orally: January 23, 2009
On appeal from the judgment of Justice T. David Little of the Superior Court of Justice, dated May 8, 2007
ENDORSEMENT
1The appellant had an automobile fleet insurance policy with the respondent insurer. The appellant failed to disclose a material change in the risk, namely, that they had employed and would have as one of their drivers an individual with a record for impaired driving. That driver was involved in a serious accident and the respondent insurer denied coverage with respect to that claim.
2The appellant submits that where the basis for denial of coverage is a failure to disclose a material change in the risk, an insurer cannot deny coverage but is required to void or cancel the policy. We are unable to find any support for that proposition in principle, the wording of the policy, in the applicable legislation or in the jurisprudence.
3We agree with the trial judge that the matter is covered by Standard OAP1 Policy s. 1.4.:
1.4 Your Responsibilities – If you fail to meet your responsibilities, claims under this policy, with the exception of certain Accident Benefits, may be denied.
By accepting this contract you agree to the following conditions.
1.4.1 You agree to notify us promptly in writing of any significant change of which you are aware in your status as a driver, owner or lessee of a described automobile. You also agree to let us know of any change that might increase the risk of an incident of affect our willingness to insure you at current rates.
You must promptly tell us of any change in information supplied in your original application for insurance, such as additional drivers, or a change in the way a described automobile is used.
4It is common ground that the insurer failed to meet its responsibility under the policy by not advising the insurer that the employee in question was added as a driver. As the trial judge found, s. 1.4 provides that in that event, claims may be denied.
5To the extent that any problem was caused by the manner in which the respondent pleaded the case or in relation to any unearned premium, that was dealt with by the trial judge in his costs order.
6Accordingly, the appeal is dismissed with costs to the respondent fixed at $18,000 inclusive of disbursements and GST.
“Robert J. Sharpe J.A.”
“R.A. Blair J.A.”
“Paul Rouleau J.A.”