CITATION: Bajor v. TD Meloche Monnex, 2017 ONSC 2046
DIVISIONAL COURT FILE NO.: 453/15 DATE: 20170412
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
BETWEEN:
OLIVER BAJOR
Plaintiff (Appellant)
– and –
TD MELOCHE MONNEX
Defendant (Respondent)
Oliver Bajor, in person, for the Appellant
Christopher Statham, for the Respondent
HEARD at Toronto: January 27, 2017
STEWART J.
[1] Oliver Bajor (“Bajor”) appeals from the decision dated July 14, 2015 of Deputy Judge R. Kay following a trial in Small Claims Court. The trial judge dismissed his action and awarded costs of $1,836.25 and disbursements of $40.00 to the Respondent TD Meloche Monnex (“TDMM”).
[2] TDMM submits that there is no basis to interfere with the decision of the trial judge.
Jurisdiction
[3] An appeal lies to a single judge of the Divisional Court from a final order of the Small Claims Court pursuant to ss. 31 and 21 (2)(b) of the Courts of Justice Act, R.S.O. 1990, c. C.42.
Standard of Review
[4] The standard of review in an appeal of a final order of a judge is set out in Housen v. Nikolaisen, 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.
Background Facts
[5] In February 2012, Bajor purchased a policy of insurance from TDMM for his motorcycle. The annual renewal date for the policy was February 2013.
[6] Payments for the policy were made by pre-authorized debit from a business bank account held by Bajor.
[7] The policy was automatically renewed by TDMM in February 2013. TDMM advised Bajor by letter dated February 2013 of the renewal and confirmed by letter dated March 1, 2013 that the automatic policy renewal would be effected upon withdrawal of the first premium in March.
[8] On December 19, 2013, TDMM sent Bajor a package of policy renewal documentation for the following year. The material indicated that automatic renewal would occur on February 9, 2014.
[9] The renewal package also contained a Cancellation Request Form which was neither completed nor submitted to TDMM by Bajor.
[10] In January and February 2014, Bajor sent emails to TDMM concerning some pricing and renewal concerns.
[11] TDMM responded by providing Bajor with details of his coverage.
[12] On March 10, 2014, a premium payment of $226.16 for policy coverage was automatically withdrawn by TDMM from Bajor’s account.
[13] In mid-March 2014, following a telephone call between TDMM and Bajor, the policy was cancelled.
[14] On March 27, 2014 the $226.16 was returned by TDMM to Bajor’s account.
[15] Bajor took the position that, since he had not specifically decided to renew and had not expressly agreed to the renewal, the premium had been taken by TDMM from his account improperly and without authorization.
[16] On March 24, 2014, Bajor commenced an action in Small Claims Court against TDMM. In his action, Bajor claimed $25,000.00 in damages for what was essentially breach of contract or conversion. He asserted that he had not renewed the policy and therefore the premium payment had been stolen from him by TDMM.
[17] Bajor maintained in his action that he suffered damages as a result of the improper withdrawal by TDMM from his account of the amount of $226.16. He claimed at trial that such damages included psychological distress and an exacerbation of a medical condition from which he suffers.
Decision of the Trial Judge
[18] The trial judge found that the policy of insurance was in place until it was expressly cancelled pursuant to a conversation by Bajor with a representative of TDMM in March 2014. Following that conversation, the premium that had been withdrawn was returned to Bajor promptly.
[19] The trial judge also found that, had liability been established (which was not the case), any damages suffered by Bajor could not be considered to be reasonable foreseeable in the circumstances. In any event, actual damages had not been proven to the requisite extent.
[20] As a result, the trial judge dismissed the action.
Issue and Discussion
[21] In arriving at his decision, the trial judge referred correctly to what he described as accepted practice in Ontario, one which is generally designed to protect the insured. A policy of insurance will stay in force unless cancelled. Such cancellation must be clear, unconditional and unequivocal (see: Bolton Estate v. All state Insurance Co. of Canada, 1995 Carswell Ont 490 (Gen. Div.)).
[22] I see no reversible error in law in the reasons of the trial judge that would justify intervention on appeal. Further, there was ample evidence before the trial judge to support the conclusion that Bajor had not clearly unconditionally and unequivocally cancelled his policy. When TDMM was made aware of Bajor’s desire to cancel, it promptly returned the premium it had withdrawn.
[23] In any event, the damages alleged by Bajor at trial that involve health upset and psychological distress were found by the trial judge to be not ones which could have been reasonably foreseeable by TDMM on the facts of this case. They are also not in the nature of damages for what might be more conventionally seen as a breach of contract claim. To the extent the conduct complained of by Bajor was arguably the tort of conversion, the damages claimed similarly would not have been reasonably foreseeable in these circumstances (see: Mustapha v. Culligan of Canada Ltd., 2008 SCC 27, 2008 Carswell Ont 2824 (S.C.C.)). Accordingly I would not give effect to this ground of appeal.
[24] Finally, a review of the record of proceedings reveals no unfairness in the process employed by the trial judge to hear and adjudicate this claim or any bias on the part of the trial judge.
Conclusion
[25] For these reasons, the appeal is dismissed.
Costs
[26] If costs are being sought, brief written submissions may be delivered by TDMM within 20 days of today’s date, and by Bajor within 15 days thereafter.
___________________________ STEWART J.
Released: April 12, 2017
CITATION: Bajor v. TDMM Meloche Monnex, 2017 ONSC 2046
DIVISIONAL COURT FILE NO.: 453/15 DATE: 20170412
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
BETWEEN:
OLIVER BAJOR
Plaintiff (Appellant)
– and –
TDMM MELOCHE MONNEX
Defendant (Respondent)
REASONS FOR DECISION
STEWART J.
Released: April 12, 2017