CITATION: Mulosmani v. TD Insurance Meloche Monex, 2016 ONSC 1452

DIVISIONAL COURT FILE NO.: 183-15 DATE: 20160303

ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT

BETWEEN:

Sabina Mulosmani

Plaintiff /Appellant

– and –

TD Insurance Meloche Monex AKA Premium Insurance Company

Defendant/Respondent

In person

Kimberley Tye, for the Respondent

HEARD at Toronto: February 26, 2016

Stewart J.

1Sabina Mulosmani (“Mulosmani”) appeals the decision of Deputy Judge Libman delivered on January 21, 2015 whereby he dismissed her action against TD Insurance Meloche Monnex a.k.a. Primmum Insurance Company (“TD”) following a trial in Small Claims Court.

2TD submits that there is no basis for interference in Libman, J.’s disposition and that it should be allowed to stand.

Jurisdiction

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Jurisdiction

An appeal lies to the Divisional Court from a final order of the Small Claims Court. Such appeal is to be heard by a single judge (see: s. 31 and s. 21(2) (b) of the Courts of Justice Act, R.S.O. 1990, c.C. 43).

STANDARD OF REVIEW

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Standard of Review

The standard of review in an appeal of an order of a judge is set out in Housen v. Nikolarsan, 2002 SCC 33, [2002] 2 S.C.R. 235. On questions of law, the standard is correctness. On questions of fact, the standard is palpable and overriding error. On questions of mixed fact and law, there is a spectrum. However, with respect to the application of the correct legal principles to the evidence, the standard is palpable and overriding error.

Discussion

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Discussion

Mulosmani was insured to drive under a policy issued to her by TD. In September and October, 2012, she was involved in two motor vehicle collisions.

6These accidents were reported by Mulosmani to TD. Based upon TD’s application of the Fault Determination Rules, O. Reg. 668, R.R.O. 1990, TD found Mulosmani to be “at fault” under the Rules for both.

7Mulosmani was charged the $500.00 deductible for repairs in connection with each accident, pursuant to her policy.

8Mulosmani’s policy with TD continued in force until its expiry on June 11, 2013 at an annual premium of $3,961.00.

9When Mulosmani’s policy with TD came up for renewal, the annual premium to be charged by TD was much higher than the previous year.

10On June 10, 2103, Mulosmani sought coverage from another insurer, Economic Insurance, which quoted her a yearly premium of $7,617.00.

11Mulosmani then entered into a policy of coverage with Economical Insurance. Although there is a dispute as to exactly when she stopped driving and cancelled this policy, it is common ground that the cancellation was sometime between August and October, 2013. Accordingly, the difference in premiums was incurred by her for substantially less than a year.

12Mulosmani’s claim in Small Claims Court was basically for repayment of the $1,000.00 in deductibles paid to TD and for an additional amount of $4,000.00, alleged to be the increase in insurance premiums caused by the designation by TD of her being “at fault” under the Rules.

13Mulosmani gave oral evidence at the trial before Libman, J. An affidavit from the other driver involved in the September 13, 2012 accident was entered into evidence, with Mulosmani’s consent, along with documentation relevant to the accidents and the application of the Rules by TD, which ahd been filed by TD.

14Libman, J. concluded that the imposition of the deductible was required under the policy, subject to a discretionary waiver by TD in very limited circumstances, none of which applied to Mulosmani. Mulosmani agreed with Libman, J. that repayment of the deductibles was not available. Therefore, Mulosmani was not entitled in this case to a refund of either of the deductibles paid by her.

15Libman, J. further found that the onus was on Mulosmani to prove on a balance of probabilities that TD had incorrectly or improperly applied the Rules to one or both of these two collisions, and that she had failed to discharge that onus.

16Libman, J. also expressed concern in passing in his reasons about the extent to which Mulosmani had actually proven her damages, as there was a paucity of documentary evidence as to what premiums had been paid to Economical, for what period and what adjustment would have been required for the partial refund received by Mulosmani from Economical. The fact that she only paid an increased rate for insurance for a period of a few months at most would have to result in a substantial reduction of her claim for any actual damage.

17In my view, the record before the court reveals no reversible error that would justify appellate interference. No police officer or third party witness to either accident gave testimony. The documents before Libman, J. had been filed by TD. Mulosmani relied on those documents and did not seek to tender any additional documentary evidence or viva voce evidence.

18In my opinion, there was evidence before the trial judge upon which he could conclude that Mulosmani failed to prove her claims to the degree the law requires. There is nothing in the record or materials provided to suggest that the trial judge misapprehended the evidence or incorrectly applied the law to it.

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Conclusion

For these reasons, the appeal is dismissed.

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Costs

Should there be a request for costs as a result of this decision, written submissions may be delivered by the TD within 20 days of today’s date and by Mulosmani within 15 days thereafter.

___________________________ Stewart J.