Macaro v. Elite Insurance Company, 2010 ONCA 147

CITATION: Macaro v. Elite Insurance Company, 2010 ONCA 147

DATE: 20100226

DOCKET: C46859

COURT OF APPEAL FOR ONTARIO

Sharpe, Rouleau and Epstein JJ.A.

BETWEEN

Francesco Macaro and Antonio Macaro

Plaintiffs (Appellants)

and

CGU Insurance Company of Canada

Elite Insurance Company

Defendant (Respondent)

Counsel:

Edward Goldentuler and Daniel Roncari, for the appellants

Alan L. Rachlin, for the respondent

Heard and released orally: February 11, 2010

On appeal from the judgment of Justice R.W.M. Pitt of the Superior Court of Justice, dated March 1, 2007.

ENDORSEMENT

[1] The appellant, Antonio Macaro, insured a 1970 Chevrolet Corvette Stingray LT1 automobile with the respondent under a stipulated value policy. The appellants alleged that the vehicle was stolen and claimed the stipulated value. The vehicle was recovered by the police during the litigation. The appellants alleged that the vehicle had been damaged and continued with the litigation. The evidence of two experts at trial was that the vehicle could never have been the excellently preserved and rare vehicle that it was represented to be when the respondent agreed to insure. The appellants called no expert evidence to refute that evidence.

[2] The jury found that the appellant, Antonio Macaro, had given false particulars of the automobile to be insured to the prejudice of the insurer and the claim was dismissed on the basis of s. 233(1)(a)(i) of the Insurance Act.

[3] The appellants raise a number of issues on this appeal. The appellants first submit that the respondent waived its right to argue the defence of misrepresentation and/or is estopped from raising that argument. We disagree.

[4] The appellants have not established the elements of estoppel or waiver. In particular, we see no evidence that the appellants changed or altered their position to their detriment as a result of the respondent’s change of position during the course of defending this claim.

[5] The appellants also complain that the respondent failed to establish prejudice arising from the description of the automobile as they charged the appropriate premium for the vehicle having that reported value. We see no merit in this submission. The respondent’s evidence was that they would not have issued a policy for the stated value if the automobile had a significantly lower value. It was clearly open to the jury to find prejudice on the basis of that evidence.

[6] The appellants also argue that the trial was unfair because some of the respondent’s evidence suggested that the appellants may have been involved in fraud. We do not accept this submission.

[7] Part of the impugned evidence, namely the phone book, was ruled inadmissible by the trial judge and the jury was instructed that it was not proper evidence and, therefore, not before them. The balance of the challenged evidence was properly admitted. The appellants cannot claim that evidence led by the respondent as to false particulars of the described automobile is inadmissible simply because it might suggest fraudulent behaviour on their part. The respondent was entitled to lead admissible evidence of false particulars. They did not plead fraud, they did not have to establish fraud to make out the defence under s. 233(1)(a)(i) and they did not ask the jury to find fraud and the questions put to the jury were properly cast. We see no merit in this submission.

[8] Accordingly, the appeal is dismissed with costs fixed at $20,000, inclusive of disbursements and GST, in addition to the costs ordered on a motion of $500 in the cause.

“Robert J. Sharpe J.A.”

“Paul Rouleau J.A.”

“Gloria Epstein J.A.”