Court of Appeal for Ontario

CITATION: Plamandon v. Aviva Canada Inc., 2009 ONCA 579

DATE: 20090722

DOCKET: C49780

BEFORE: Feldman, Juriansz and Epstein JJ.A.

BETWEEN:

Robert Plamandon, Raymond Tout and William Nelson

Plaintiffs (Respondents)

and

Aviva Canada Inc. and Pilot Insurance Company

Defendants (Appellants)

COUNSEL:

Alan L. Rachlin, for the appellants

Aleks Mladenovic, for the respondents

Heard and released orally: July 17, 2009

On appeal from the order of Justice D. Aston of the Superior Court of Justice dated November 25, 2008.

ENDORSEMENT

[1] We agree with the appellant that this appeal is from a final determination that decides a question of law on a matter that is in issue in the action and therefore is properly before this court. In our respectful view, the motion judge erred in his decision on the question of law.

[2] We agree with the appellant that the motion judge erred by not taking into account in his decision s. 6 of the OPCF 44R-Family Protection Coverage Form. That section limits the Ontario insurer’s exposure based on the threshold that applies to the underinsured tortfeasor under s. 737 of the Florida statute.

[3] In paragraph 13 of his reasons the motion judge concludes: “Out-of-State defendants in Florida are able to raise the “threshold defence” if (but only if) they can prove their out-of-state insurance provides the equivalent of Florida’s statutorily defined PIP coverage”. This statement is true, but only for out-of-state tortfeasor defendants because of s. 737 of the Florida statute but not for out-of-state plaintiff’s insurers as defendants.

[4] The appeal is therefore allowed, and, based on the facts as pleaded that are accepted to be true for the purposes of this motion, including paragraph 3(a) of the Amended Statement of Defence that the tortfeasor’s Florida insurance did include PIP coverage, the threshold under s. 737 of the Florida statute applies.

[5] Costs to the appellant fixed at $5,000 on the partial indemnity basis, inclusive of disbursements and G.S.T.

Signed : “ K. Feldman J.A. “

“R. G. Juriansz J.A.”

“G. J. Epstein J.A.”