Neutral Citation: 1994 ONICDRG 50
File No. A-004394
ONTARIO INSURANCE COMMISSION
BETWEEN:
PETER JACOBS
Applicant
and
ECONOMICAL MUTUAL INSURANCE COMPANY
Insurer
DECISION
Issue:
The Applicant, Peter Jacobs, was seriously injured in a motor vehicle accident on May 30, 1992. He applied for statutory accident benefits from the Insurer, payable under Ontario Regulation 6721. Mr. Jacobs has received no weekly income benefits. The Insurer alleges one of the exclusions under the Schedule applies to his claim. The parties were unable to resolve their dispute through mediation and the Applicant applied for arbitration under the Insurance Act, R.S.O. 1990, c. I.8.
The issue in this hearing is:
Does the exclusion set out in section 17(3)(b) of the Schedule apply to the facts of this case? At the time of the accident, did Peter Jacobs know, or ought he reasonably to have known, that the driver was operating the automobile without the owner's consent?
The Applicant also claims interest on any outstanding amounts owing, and his expenses incurred in the hearing.
Result:
The Applicant is not excluded from receiving weekly income benefits by section 17(3)(b) of the Schedule. There is no evidence that Peter Jacobs knew or ought reasonably to have known that Adam Toulouse was operating the automobile without its owner's consent.
The Applicant is entitled to his expenses incurred in respect to the arbitration.
Hearing:
The hearing was held in Sudbury on March 3, 1994, before me, K. Julaine Palmer, arbitrator.
Present at the Hearing:
Applicant:
Peter Jacobs
Applicant's Representative:
John Desotti Barrister and Solicitor
Insurer's Representative:
Gordon L. Robson Barrister and Solicitor
Insurer's Officer:
Terry Sherlock
Witnesses:
Peter Jacobs, Rita Jacobs, Paddy Owl, Irma Southwind, Darren Assiniwe, Adam Toulouse, Karen Trudeau-Toulouse
The parties filed two medical report briefs and two other exhibits at the hearing. The cases referred to by counsel are listed at Schedule A to this decision.
Evidence and Findings:
I. Background
This case concerns two young men from the Sagamok Reserve, near Massey, who had both been drinking alcohol, before a tragic car accident. The accident occurred in the early morning of May 30, 1992 while Adam Toulouse, then aged 19, was driving a new 1992 Grand Am automobile. The Grand Am had been purchased by his stepmother, Karen Trudeau-Toulouse, about three weeks earlier. Peter Jacobs, the Applicant, was a passenger in the automobile at the time of the accident.
Karen Trudeau-Toulouse testified at the hearing that her stepson was driving the Grand Am without her knowledge or consent. On the basis of her evidence I am satisfied that Adam Toulouse was operating the 1992 Grand Am at the time of the accident without its owner's consent.
If the Insurer can prove that the Applicant, Peter Jacobs, knew or ought to have known that Adam Toulouse was operating the car without its owner's consent, then the Insurer need not pay weekly benefits to the Applicant under section 12(1) or section 13(1) of the Schedule. This is the issue I must decide, based upon the evidence presented at the hearing.
Section 17 of the Schedule sets out the exclusions, or cases where an insurer is not required to pay weekly benefits. In this case, section 17(3)(b) is the applicable subsection. It reads:
(3) The insurer is not required to pay benefits under subsection 12(1) or 13(1),
(b) in respect of an occupant of an automobile at the time of the accident who knew or ought reasonably to have known that the driver was operating the automobile without the owner's consent.
Seven people, including Peter Jacobs and Adam Toulouse, testified at the hearing. None of the witnesses testified that Peter Jacobs knew that Adam Toulouse was operating the automobile without his stepmother's authorization. I can make no finding that Peter Jacobs knew Adam Toulouse had taken the car without the owner's consent.
However, the Insurer claims that Peter Jacobs "ought reasonably to have known" that Adam Toulouse was operating the vehicle without the owner's consent.
II. The Evidence
Peter Jacobs
Peter Jacobs testified at the hearing, with the assistance of an alphabet board. His evidence was of little assistance to me, because of the effect of the accident on his memory. It is undisputed that, as a result of the accident, Mr. Jacobs suffered a severe closed head injury with subarachnoid and intracranial haemorrhages. He remained in the intensive care unit of Sudbury General Hospital for 18 days after the accident, then was transferred, still in a coma, to Espanola General Hospital in mid-July 1992. It is my understanding, from some of the health care reports provided, that he did not become fully conscious until more than four months after the accident.
In his report dated June 22, 1993 Michael De Angelis, physiotherapist, summarized the effect of the accident on Peter Jacobs' condition:
The problems associated with his head injury were: left sided spasticity, muscle and joint contractures, loss of balance, inco-ordination, inability to ambulate, dependency for transfers and self-care, poor swallowing reflex which may in future contribute to aspiration pneumonia, slow reaction and movement time, and inability to express himself verbally.
Mr. Jacobs participated in psychometric testing in February 1993 as part of a psychological assessment made by a team at Laurentian Hospital, where he was a patient from November 30, 1992 until April 6, 1993. Part of that report recorded that,
Results from normative testing with brain injured individuals need to be interpreted conservatively as recovery from brain injury is a long-term process. The present testing is limited in scope in that an attempt has been made to provide information useful to understanding specific functional abilities. This testing is more limited in scope than a model of cognitive functioning provided by comprehensive neuropsychological testing.
All of the W.A.I.S.-R. sub-tests were administered except for Vocabulary and Digit Symbol. Because of Peter's multiple handicaps, no formal I.Q. scores were obtained and results are descriptive. Results from Peter's testing are consistently within the borderline range of intellectual functioning, or between the 2nd and 5th percentiles for both the Performance and Verbal Scales.
In his testimony, Peter Jacobs stated that he did not recall the day of the accident. He did not recall drinking alcohol that day. Although he testified he knew Adam Toulouse a little, he did not know if he had ever visited Adam Toulouse's house or had him in his own home. He could not remember if he had seen Adam Toulouse drive before the accident. He did not know if the car involved in the accident was Adam Toulouse's mother's or his father's. Peter Jacobs could not remember whether he lived with Irma Southwind before the accident.
In summary, Peter Jacobs' testimony shed no light on the issue before me.
Rita Jacobs
The testimony of Rita Jacobs, Peter's mother, was also, unfortunately, of little assistance as to the events of the day of the accident. She was at work during the day and Peter was not at her home, where he had been staying, after she returned home that afternoon. Mrs. Jacobs did not personally know the Toulouses, except to know who they were. She testified that the Toulouses moved to the Sagamok Reserve after the Jacobs' and lived in a different area.
Paddy Owl
Paddy Owl, a cousin of Peter Jacobs, testified. He saw Peter Jacobs on the day of the accident around 7:00 p.m. at Irma Southwind's home. He stated that six young men were there having a drinking party. Sometime during the evening Adam Toulouse left the party and Peter Jacobs and his brother, Roger, passed out on a bed. Mr. Owl left the premises at about 11:00 p.m. He saw Peter Jacobs approximately one to one and a half hours later in Ms. Trudeau-Toulouse's car, near the baseball field where Mr. Owl was drinking beer with other friends. Mr. Owl testified that Adam Toulouse was driving the car and Peter Jacobs was a passenger in the back seat. Greg Abitong was seated in the front.
Mr. Owl testified that Peter Jacobs was "pretty wasted...drunk, drunk". He said Peter Jacobs just smiled and moved his fingers and hand slowly in a gesture of greeting and may have said "Hi", but nothing else, when Paddy Owl opened the back door of the car and asked where they were going. Mr. Owl learned from the others in the vehicle that they were headed to catch the last call at a local tavern.
Karen Trudeau-Toulouse
Karen Trudeau-Toulouse testified that she saw her stepson, Adam Toulouse, sitting on the steps of her neighbour Irma Southwind's home when she returned home from work at about 5:00 p.m. on the evening of the accident. She testified that she and her husband, Randy Toulouse, were at home for only 20 to 30 minutes that evening, because they planned to drive to Sudbury. They did not eat supper at home that night. Ms. Trudeau-Toulouse did not speak to her stepson that evening and she does not believe her husband did either. When they returned home, at about 10:00 p.m., she could hear loud music, laughter and loud talking from across the street and she "knew they were drinking". She testified that she knew Adam Toulouse was there and Peter Jacobs, but she was not sure whether there were others present.
Ms. Trudeau-Toulouse stated that Adam Toulouse and Peter Jacobs used to see each other socially before the accident. She testified that the Southwind-Jacobs and Trudeau-Toulouse families lived in a fairly isolated area of the Sagamok Reserve and Peter and Adam would watch television or play cards together in the evening.
Irma Southwind
Irma Southwind, the former spouse of Peter Jacobs testified. She stated that in May 1992 they were seeing each other "off and on". Ms. Southwind testified that Peter Jacobs would live with her and then if they fought he would go to his mother's place. It was not possible for her to say how much Peter Jacobs was at her home in May 1992. Sometimes he would stay overnight and help with the yard work; sometimes he would help with their three children; he had clothes there.
On the day of the accident Ms. Southwind stated that Peter Jacobs came over for lunch. She had to go into town to shop so he watched two of the children. When she returned she found that Peter and Roger Jacobs had been drinking. She saw that they had a 40 ounce bottle of vodka and another of rye. She was not sure if they had beer as well.
Ms. Southwind cooked supper for the children, Peter and Roger Jacobs, and herself and then left with the children. She went to play bingo and took the children to be babysat by her nephew, Elton Southwind, at her brother's home.
Ms. Southwind testified she learned later that evening, from another nephew, that Adam Toulouse was at her home that evening. She stated that on two occasions before that evening she could recall Adam Toulouse had come over to the house. On those occasions he did not stay very long, she testified. It was not an "all evening party".
Ms. Southwind did not return home that night. She testified that she did not want to be around while a drinking party was going on. She had learned that Peter and Roger Jacobs had passed out at her home. She testified that it was common for Peter Jacobs to wake up after passing out and then continue to drink.
Irma Southwind testified she had seen Adam Toulouse drive his father's truck and his mother's Capri. She had seen Karen Trudeau-Toulouse's new car, but could not recall if she had seen Adam Toulouse driving it. Two weeks before the accident, she saw Adam Toulouse driving a vehicle owned by her friend, Dolly Owl. On that occasion Adam Toulouse drove Peter Jacobs to the store in Ms. Owl's car to get some cigarettes.
Darren Assiniwe
Darren Assiniwe, aged 23, testified. He is a cousin of Adam Toulouse. He stated that he had seen Adam Toulouse driving the new Grand Am, in the company of his father, Randy Toulouse. He stated he has known Adam Toulouse all his life. He felt it was unlikely that Adam's father would give him the keys to that car, or allow Adam to drive drunk.
Adam Toulouse
Adam Toulouse, now aged 21, testified at the hearing under summons by the Insurer. He stated in response to the Insurer's counsel's questions that he had no memory of the night of the accident. He testified that he did not really know Peter Jacobs before the accident, but had just "seen him around...he lived across the street". Mr. Toulouse testified that at the time of the accident he had been living on the reserve about one month. He was not sure if he ever had any dealings with Peter Jacobs before the accident, except he thought he'd cut his lawn once. He denied he had ever drunk with Peter Jacobs.
Adam Toulouse testified that he never drove the Capri before the accident. He only drove his father's truck and had to ask him for it. He denied he had ever driven the Grand Am before the accident. He said he had asked to test-drive it up and down the road and his stepmother had said no.
Mr. Toulouse then explained that he was not allowed to drive any of her cars, because he took the Capri out one night and never came home. I find that evidence inconsistent with his statement that he had never driven the Capri.
Mr. Toulouse denied he knew where the Grand Am's spare keys were kept. Despite stating he had no memory of the accident, Mr. Toulouse testified that he had had only a vodka cooler to drink during the afternoon before the accident and nothing thereafter. He then admitted he had been partying that evening at Irma Southwind's home with about six others. The witness was confused about what he remembered and what he had been told about the day of the accident after he woke up in the hospital. After he was cautioned to tell only what he remembered, to say if he was not sure, and to tell if he had been told something by someone else, Mr. Toulouse stated that the day of the accident he had gone home a couple of times and had asked his father if he could go and get some beer, but was told to "forget it". Mr. Toulouse testified he did not remember how much he drank that night, nor how he got the keys to the Grand Am, nor with whom he drove around. The next thing he is sure he remembers, is waking up in the hospital.
On cross-examination, the Applicant's lawyer suggested to Adam Toulouse that he could not remember anything from getting to the Southwind home till he woke up in the hospital. Mr. Toulouse responded, "...sounds good enough to me", then suggested he was "not going to (expletive deleted) blank out after one beer." He was asked about a statement he gave to an insurance adjuster on February 3, 1993. Mr. Toulouse claimed to have just given the adjuster the facts. When he was asked why there was nothing in that statement about asking his father for the keys to get some beer, he said the adjuster had not asked him. He thought it was "too boring" and stated that "I didn't think it was that important". Mr. Toulouse stated he had last been interviewed by an insurance adjuster two or three weeks prior to the hearing.
III. The Law
Section 17(1) and (3) of the Schedule sets out eight exclusions or cases where an Insurer does not have to pay weekly benefits:
EXCLUSIONS
17.––(1) The insurer is not required to pay benefits under subsection 12 (1) or 13 (1) in respect of a driver of an automobile at the time of the accident,
(a) if, as a result of the accident, the driver is convicted of operating the automobile while his or her ability to operate it was impaired by alcohol or a drug, or of driving while his or her blood alcohol level exceeded the limits permitted by law or of an indictable offence related to the operation of the automobile;
(b) if, as a result of the accident, the driver is asked to provide a breath sample and he or she is convicted for failure to provide the sample;
(c) if, as a result of the accident, the driver is convicted of operating the automobile while it was not insured under a motor vehicle liability policy;
(d) if the driver was not authorized by law to drive the automobile;
(e) if the driver is an excluded driver under the contract of automobile insurance; or
(f) if the driver knew or ought reasonably to have known that he or she was operating the automobile without the owner's consent.
(2) Clause (1)(d) does not apply to a driver who is not authorized by law to drive an automobile only by reason of a suspension of a licence for failure to pay a fine.
(3) The insurer is not required to pay benefits under subsection 12(1) or 13(1),
(a) in respect of any person who has made, or who knows of, a material misrepresentation which induced the insurer to enter into the contract of automobile insurance or who intentionally failed to notify the insurer of a change in the risk material to the contract; or
(b) in respect of an occupant of an automobile at the time of the accident who knew or ought reasonably to have known that the driver was operating the automobile without the owner's consent.
(4) Clause (3)(b) does not prevent an excluded driver or any other occupant of an automobile driven by the excluded driver from recovering no-fault benefits under a motor vehicle liability policy in respect of which the excluded driver or other occupant is a named insured. O. Reg. 273/90,s. 17.
After reading this section, it appears clear that the Lieutenant Governor in Council made a clear statement of social policy in passing this Schedule that convicted impaired, convicted uninsured, unlicenced or excluded drivers, as well as those who steal cars should not recover weekly income benefits under the Schedule. Further, any person who makes or knows of a material misrepresentation which induced the insurer to make the contract or who intentionally failed to notify the insurer of a material change in the risk under the contract, should not be eligible for weekly income benefits.
However, those who have had their licences suspended for failing to pay a fine are exempt from the operation of section 17.
In addition, it is equally clear in reading the Schedule, that those same persons who are excluded from receiving weekly income benefits are still eligible for benefits under other sections of the Schedule, for example the Part II and III benefits (medical, death and funeral benefits).
When one analyzes the words used in the exclusion of the Schedule that may apply in this case [section 17(3)(b)], the words "reasonably ought to have known" become the focus. The use of the word "reasonably" implies an objective standard. The words "ought...to have known" are distinguished from the word "knew", which presumes a purely subjective finding.
In this case, the evidence is uncontroverted that Peter Jacobs, then aged 22, was very intoxicated prior to the motor vehicle accident, in which he sustained a serious head injury. This fact forces us to consider whether the knowledge test which is prescribed in the Schedule is a purely objective test, or, whether it is, as the Applicant's counsel's submissions might suggest, a subjective/objective test. In other words, is the test what an ordinary, rational, sensible and sober person in Peter Jacobs' shoes at the time of the accident "ought reasonably to have known" or is the test what Peter Jacobs, the grossly intoxicated passenger, "ought reasonably to have known"?
The Applicant's lawyer submitted that the Insurer must establish that the Applicant was probably aware of the lack of consent to Adam Toulouse driving the vehicle.
Since the coming into force of the Schedule, section 17(3)(b) has not been considered; however section 17(1)(f), involving a driver, was the subsection under scrutiny in the case of Richard Roy and Royal Insurance Company of Canada, March 8, 1993, OIC File No. A-001840 (under appeal). That case is of little help to interpret the phrase which I am considering in this case. The facts in that case, in which I was the arbitrator, were very different from the Peter Jacobs' case. In that case, credibility of the witnesses played a key role. Here, the two principal participants have little or no reliable memory of the events leading up to the accident on May 30, 1992.
I conclude that the use of the word "reasonably" in the phrase "ought reasonably to have known" of section 17(3)(b) of the Schedule means that an individualized inquiry is called for, but only to the extent of the exercise of reason by an ordinary, rational person in the situation of the Applicant. The evidence must convince the arbitrator, at least on a balance of probabilities, that an ordinary person in Peter Jacobs' situation that night should have known that Adam Toulouse was driving the Grand Am on May 29/30, 1992, without the consent of Karen Trudeau-Toulouse.
IV. Conclusion
What evidence is there of what Peter Jacobs reasonably ought to have known about Adam Toulouse driving the Grand Am that night?
Peter Jacobs, Paddy Owl and Rita Jacobs' testimony shed no light on this issue at all. A number of other individuals were mentioned as being involved in the events of that evening by others who testified at the hearing, but they were not called as witnesses.
Karen Trudeau-Toulouse testified that the 1992 Grand Am was her "dream car". She had worked hard to get it and no one except her was to drive it. Her husband could drive the car, she stated, but he would be afraid to and he understood it was her car. Karen Trudeau-Toulouse testified Adam Toulouse was a new driver and she had let him drive her 1986 Capri before, occasionally, to drive friends home or to go into town on errands. As far as she knew, he had never driven the Grand Am.
Karen Trudeau-Toulouse testified that in early April Adam Toulouse had lost his privileges to drive her Capri. She testified she kept one set of keys to the Grand Am with her and she thought she had the spare set well hidden, under the tea towels in a kitchen drawer. Ms. Trudeau-Toulouse testified that late that night she and her husband were awakened by a telephone call, and learned the Grand Am was being driven. They saw tracks on the wall from muddy shoes, and they believed Adam Toulouse had entered the house through a ground floor window, while they slept. They found the spare keys were missing.
None of Karen Trudeau-Toulouse's testimony shed much light on the question of what Peter Jacobs might have known about Adam Toulouse's permission to drive the Grand Am that night. All Karen Trudeau-Toulouse said was that Peter Jacobs and Adam Toulouse used to see each other socially before the accident to watch television and play cards in the evening. She said Adam Toulouse had moved to the area only in the year before the accident. She saw Adam Toulouse over at her neighbours' at about 5:00 p.m., before she and her husband left for Sudbury. She did not indicate she had ever even spoken to Peter Jacobs herself.
Irma Southwind testified that she thought Adam Toulouse had been over to their house twice before the night of the accident, and he had not stayed long. She believed Adam Toulouse had moved to the area in about February 1992, three months before the accident. She knew Adam Toulouse and Peter Jacobs had drunk alcohol together before. Irma Southwind testified she had seen Adam Toulouse drive his father's truck and his stepmother's Capri. She had seen a new car across the street, but had not seen Adam Toulouse drive it. She did not know how Adam Toulouse got along with his father or stepmother. She stated she did not know Karen Trudeau-Toulouse very well at the time of the accident. Irma Southwind's testimony shed little light on what Peter Jacobs ought reasonably to have known about Adam Toulouse's permission to drive the Grand Am that night.
Darren Assiniwe, 23, testified that he was a cousin of Adam Toulouse and had gone out with Peter Jacobs' sister. He testified he had once seen Adam Toulouse driving the new Grand Am with his father, Randy Toulouse, as a passenger. His testimony was brief and shed no light on whether others, like Peter Jacobs, might have seen this episode or not. Mr. Assiniwe was the only person who testified at the hearing who claimed Adam Toulouse had driven the Grand Am before the accident. I accept his evidence, but it is of little assistance to me.
Adam Toulouse appeared at the hearing to testify under summons by the Insurer. His testimony of the events of the night of the accident is unreliable. The testimony of his stepmother, Irma Southwind, and Paddy Owl puts Adam Toulouse at Ms. Southwind's home in the early evening. Paddy Owl stated that Adam Toulouse was drinking alcohol. I accept that evidence. Adam Toulouse does not know what he remembers about the accident or what has been told to him since. His testimony about asking his father early that evening if he could take his stepmother's car to get some beer is unsupported by any other evidence, including a statement given by him in February 1993. Quentin Southwind may have overheard Randy Toulouse speak to his son that evening, but neither Mr. Southwind nor Randy Toulouse were called as witnesses. Even if Adam Toulouse did ask to use the Capri that evening I have no evidence of whether Peter Jacobs was present for such a conversation nor what that conversation entailed.
The Insurer's task in this arbitration is to convince me, at least on a balance of probabilities, that someone in Peter Jacobs' shoes ought reasonably to have known Adam Toulouse had no consent from Karen Trudeau-Toulouse to operate her Grand Am that night. That is a heavy burden, especially in a case where the Insurer cannot test the knowledge or credibility of Peter Jacobs under cross-examination, because of his head injury, and where the driver has little or no reliable memory of the night in question.
Intuition suggests that Peter Jacobs may have known Karen Trudeau-Toulouse would have been unlikely to let her stepson drive her new car, even if he was sober. But this hearing requires proof and evidence about the issue, not the exercise of intuition. Likewise, I cannot find that Peter Jacobs ought to have known Adam Toulouse had no permission to drive the car, simply because Adam Toulouse was intoxicated. The issue here is not the illegality of operating an automobile while one is impaired by alcohol.
In the result, I find there is no evidence on which I can base a finding that Peter Jacobs ought reasonably to have known Adam Toulouse was operating the 1992 Grand Am that night without the consent of its owner. The car belonged to Adam Toulouse's stepmother at whose home he lived. There is no evidence Peter Jacobs knew how Adam Toulouse obtained the keys to the car. There is no evidence Peter Jacobs ever would have heard that Adam Toulouse was not allowed to drive the car. On the contrary, there is evidence, which I have accepted, that at least on one occasion Adam Toulouse was seen operating the new car. Accordingly, Peter Jacobs is not excluded by section 17(3)(b) of the Schedule from receiving weekly income benefits.
Expenses:
The Applicant seeks an award of the expenses he has incurred in this arbitration. An award for expenses may be made under section 222(11) of the Insurance Act, which provides as follows:
The arbitrator may award to the insured person such expenses incurred in respect of an arbitration proceeding as may be prescribed in the regulations to the maximum set out in the regulations.
The prescribed expenses and amounts are set out in Schedule 1 of the Dispute Resolution Practice Code and in Ontario Regulation 664, R.R.O. 1990, Dispute Resolution Expenses.
In Ralph McCormick and Economical Mutual Insurance Company, October 2, 1991, OIC File No. A-000139, Arbitrator Susan Naylor made the following comments about expenses, with which I agree:
The discretion to award expenses should be exercised, having regard to the intent and purpose of the legislative scheme. The arbitration process has been established under the Insurance Act, as amended, in order to facilitate applicants' access to relatively inexpensive, speedy and informal adjudication of disputes regarding no-fault benefits. The discretion to award expenses should be exercised in accordance with this objective, having regard to the individual circumstances of each case.
Accordingly, it is appropriate to award an applicant his or her expenses, unless, in the circumstances of the particular case, it is determined that the application for appointment of an arbitrator was manifestly frivolous or vexatious, or that the applicant's conduct unreasonably prolonged the proceedings.
The Director of Arbitrations approved this statement of the principles guiding an award of expenses in the appeal decision in Vito Luigi Calogero and The Co-Operators General Insurance Company, February 13, 1992, OIC File No. P-000251.
The Applicant is entitled to his expenses as set out in Schedule 1 of the Dispute Resolution Practice Code. In the event that the parties cannot agree as to the total amount of expenses, I remain seized of this matter and a party may apply for assessment of the expenses before me.
Order.
The Applicant is not excluded from receiving weekly income benefits by section 17(3)(b) of the Schedule. There is no evidence that Peter Jacobs knew or ought reasonably to have known that Adam Toulouse was operating the automobile without its owner's consent.
The Applicant is entitled to his expenses incurred in respect to the arbitration.
June 16, 1994
K. Julaine Palmer Arbitrator
Date
SCHEDULE A
R. v. Hamilton, [1993] O.J. No. 2486 (Ont. Ct. (Gen.Div.))
R. v. Mackinlay (1986), 1986 CanLII 111 (ON CA), 28 C.C.C. (3d) 306 (Ont.C.A.)
Archie v. Insurance Corp. of British Columbia (1990), 1990 CanLII 13851 (BC SC), 45 C.C.L.I. 215 (B.C.Cty.Ct)
Nimmo v. M.P.I.C. (1989), 1989 CanLII 5209 (MB CA), 41 C.C.L.I. 79 (Man. C.A.)
Wong v. Insurance Corp. of British Columbia (1993), 1993 CanLII 17728 (BC SC), 16 C.C.L.I. (2d) 143 (B.C.S.C.)