Budd et al. v. Paterson, also known as Patterson Budd et al. v. The Personal Insurance Company of Canada [Indexed as: Budd v. Paterson]
62 O.R. (3d) 715
[2002] O.J. No. 4883
Docket Nos. C38038 and C38039
Court of Appeal for Ontario,
Weiler, Rosenberg and Armstrong JJ.A.
December 19, 2002
Insurance -- Arbitration -- Abuse of process -- Plaintiff injured in motor vehicle accident -- In arbitration respecting accident benefits arbitrator finding that plaintiff was not insured at time of accident -- Plaintiff bringing action against tortfeasor -- Motions judge erring in dismissing action on basis of abuse of process because of arbitrator's finding that plaintiff not insured at time of accident -- Question of whether tortfeasor breached his duty of care to plaintiff separate and not derived from contractual relationship alleged by plaintiff against insurer.
Insurance -- Arbitration -- Issue estoppel -- In arbitration respecting accident benefits arbitrator finding that plaintiff was not insured at time of accident -- Plaintiff bringing action against insurer for breach of contract and negligence -- Motions judge erring in dismissing action on basis of issue estoppel -- Same issue not raised in arbitration proceedings and civil action.
B and his wife, R, owned two family vehicles, both of which were registered in R's name. When they separated, R transferred the ownership of one of the vehicles to B and told a customer service representative of the insurer to cancel the policy on that vehicle. The representative did so but did not inform B. Five days after the vehicle was deleted from the insurance policy, B was injured in a collision with P. The insurer refused to pay accident benefits and B commenced arbitration proceedings. The arbitrator found that B's vehicle was uninsured at the time of the accident and that he knew or ought reasonably to have known that he was operating an uninsured vehicle. Section 267.6(1) of the Insurance Act, R.S.O. 1990, c. I.8 precludes an uninsured driver from recovering loss or damage from bodily injury arising directly or indirectly from the use or operation of an automobile. B brought an action against P for damages for negligence and a separate action against the insurer for damages for breach of contract and negligence. The defendants in both actions moved for