CITATION: Carnell v. Aviva Canada Inc., 2011 ONCA 313
DATE: 20110420
DOCKET: C53080
COURT OF APPEAL FOR ONTARIO
Winkler C.J.O, Lang and Karakatsanis JJ.A.
BETWEEN
Johan Carnell and Sandra Carnell
Applicants (Respondents)
and
Aviva Canada Inc. and Traders General Insurance Company
Respondents (Appellants)
Andrew Davidson, for the appellants
Bruce R. Jaeger, for the respondents
Heard: April 18, 2011
On appeal from the judgment of Justice Anne Mullins of the Superior Court of Justice, dated December 2, 2010.
APPEAL BOOK ENDORSEMENT
[1] We do not accept the appellants’ argument that the application judge’s single reference to the Statutory Conditions led to an error in her analysis. The Statutory Conditions and the policy exclusion at issue were identically worded. It was this identical wording that led the appellants to reference the cases decided under the Statutory Conditions.
[2] The application judge was clearly alive to the issue she was required to determine. In the first sentence of her reasons, she stated that the insured sought “a declaration determinative of the Applicant’s claim … pursuant to the terms of an automobile insurance policy.”
[3] Later, the application judge correctly described the rule of interpretation that “an insurance contract is … to be strictly and narrowly interpreted.” We do not accept this ground of appeal.
[4] We also do not accept the argument that the interpretation reached by the application judge was not available to her on the undisputed facts. The appellants particularly challenge the application judge’s conclusion that the respondent was not involved in a “speed test” and therefore was entitled to coverage under the policy. The application judge had before her evidence of the purpose of the Driver Education Programme in which the respondent was engaged, including its objectives such as establishing proper steering wheel control, use of mirrors, proper braking and cornering techniques, as well as understanding basic vehicle dynamics and car control. There was more than ample evidence for the application judge’s conclusion that the respondent was not engaged in a “race” or “speed test”, but in “exercising his driving skills in an environment, which was, by design and intended purpose, such as to challenge his skills and the performance attributes of his vehicle.” The purpose and objectives set out in the manual clearly support the application judge’s conclusion.
[5] The appeal is accordingly dismissed. Costs to the respondents in the amount of $5,000, inclusive of disbursements and applicable taxes.