Court of Appeal for Ontario

Citation: Van Berlo v. Aim Underwriting Limited, 2013 ONCA 582

Date: 20130926

Docket: C56098

Weiler, Goudge and Rouleau JJ.A.

Between

Petrus Van Berlo

Plaintiff

(Appellant in Appeal)

and

Aim Underwriting Limited and

Allianz Global Risks US Insurance Company

Defendants

(Respondents in Appeal)

Counsel:

Lisa N. Gunn, for the appellant

Timothy Tremblay, for the respondent

Heard and released orally: September 13, 2013

On appeal from the judgment of Justice K.A. Gorman of the Superior Court of Justice, dated September 19, 2013.

ENDORSEMENT

[1] The overarching issue on this appeal is whether the trial judge erred in determining that the damage caused to his twin engine airplane was not an accident within the meaning of the insurance policy.

[2] The trial judge concluded that when the appellant attempted to fly his twin engine plane even though he could only get one engine to engage before taking off, his subsequent crash was not an accident.

[3] The appellant submits that the trial judge’s conclusion is undermined by her finding of fact that the appellant did not know that he was running a risk over and above the inherent dangers of flying. That finding suggests that the appellant did not assume a calculated risk and it was therefore not open to the trial judge to come to the conclusion she did.

[4] Furthermore, paragraph 42 of the trial judge’s reasons are unclear as to whether the trial judge was saying the appellant was reckless and calling it negligence or whether she was saying he was simply negligent.

[5] While the respondent submits that, read as a whole the trial judge’s reasons are clear, we do not agree that she applied the correct standard to come to her finding.

[6] Accordingly, the appeal is allowed and a new trial is ordered.

[7] Costs of the appeal are to the appellant and by agreement are fixed in the amount of $13,000 inclusive of disbursements and all applicable taxes. Costs of the trial are reserved to the judge hearing the new trial.

“K. Weiler J.A.”

“S. Goudge J.A.”

“Paul Rouleau J.A.”