COURT FILE NO.: 313/03

DATE: 20040108

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

MACFARLAND, ELLEN MACDONALD AND C. CAMPBELL JJ.

B E T W E E N:

EAMONN P. MCENANEY

Plaintiff (Respondent)

• and -

GENERAL ACCIDENT ASSURANCE COMPANY OF CANADA

Defendant (Appellant)

Allan Marron, for the Plaintiff (Respondent)

Kieran C. Dickson, for the Defendant (Appellant)

HEARD: January 8, 2004

MACFARLAND J.: (Orally)

1Eamonn McEnaney’s driver’s licence expired May 10, 1995. He was injured while driving his automobile on September 9th, 1995. He applied for and received accident benefits which were subsequently terminated by the insurer, pursuant to s.58(1)(d) of the regulations in effect at the time, which provided that neither Income Replacement Benefits nor Loss of Earning Capacity Benefits were payable to drivers not authorized to drive at the time of the accident. This is an agreed fact before this Court.

2The insured plaintiff sued his insurer and relies on s.129 of the Insurance Act. J. MacDonald J. dismissed the defendant’s summary judgment motion for reasons, which to summarize them in essence, held that the insurer “had failed to establish that there were no genuine issues of material fact which required a trial. Specifically there are on the evidence such genuine issues in respect of whether the respondent is entitled to relief from forfeiture”.

3The only issues referenced in J. MacDonald J.’s reasons refer to relief from forfeiture. In our view, the statement made by Carthy J.A. in the Pluzak case which has been characterized as obiter is nonetheless powerfully persuasive and represents a binding statement of the law in Ontario until the Court of Appeal says otherwise. In result, the decision of J. MacDonald J. cannot stand and is set aside and in its place an order will issue dismissing this action.

4Although Mr. Marron argues such an order cannot be made because there are other issues which the plaintiff can pursue in this action, we do not agree.

5In our view, if s.129 is not available to the plaintiff, neither is s.98 of the Courts of Justice Act and in this respect, we refer to the trial decision of Cavarzan J. in Ancaster Jewellers Ltd. v. Pafco Insurance Co. where at p. 9 of the quicklaw version of that case at par. 47, he quotes Moldaver J.A. in the Stuart case where he says:

“While I have serious reservations about the correctness of [the motion judge’s] conclusion that s. 98 could be invoked in circumstances where s. 129 was unavailable on account of an overriding statutory provision, for reasons which will become apparent, it is unnecessary to finally decide that issue. Suffice it to say that if s. 98 was available, I am confident that its reach could not extend beyond that of s. 129 to relieve against forfeiture in the case of a breach amounting to non-compliance with a condition precedent to coverage.”

6The plaintiff was obliged on the defendant’s motion for summary judgment to lead trump. It is no answer now for the plaintiff to say in this Court, “Well, the plaintiff has other basis on which to bring its action” and this Court cannot dismiss even if it agrees with the appellant.

7The plaintiff’s driver’s licence had expired at the time of the motor vehicle accident – that is an admitted fact before this Court. The Statutory Accident Benefits regulation provides that no I.R.B’s or L.E.C.’s are payable to a driver injured in such circumstances. The plaintiff’s action for those benefits fails. Neither s.129 of the Insurance Act nor s. 98 of the Courts of Justice Act are of assistance. An order will issue dismissing those aspects of the action which seek the payment of income replacement and/or loss of earning capacity benefits.

8The endorsement will read as follows: “For reasons given this day, the appeal is allowed and the order of J. MacDonald J. is set aside and in its place an order will issue dismissing the action as it relates to I.R.B.’s and L.E.C.’s. Costs to the appellant fixed in the sum of $3,600, plus disbursements and GST to include costs before J. MacDonald J., the leave application and the costs of this appeal. Counsel agree that the costs of that part of the action dismissed as the result of the disposition today will be dealt with at the conclusion of the litigation and not by this Court.”

MACFARLAND J.

E. MACDONALD J.

C. CAMPBELL J.

Date of Reasons for Judgment: January 8, 2004

Date of Release: January 14, 2004

COURT FILE NO.: 313/03

DATE: 20040108

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT