Altobelli v. Pilot Insurance Co., [1991] 3 S.C.R. 132

Pilot Insurance Company Appellant

v.

Ottavio Altobelli Respondent

and between

CNA Assurance Company and

the Citadel General Assurance Company Appellants

v.

Ottavio Altobelli Respondent

Indexed as: Altobelli v. Pilot Insurance Co.

File Nos.: 21584, 21582.

1991: October 7.

Present: La Forest, L'Heureux‑Dubé, Sopinka, Gonthier, McLachlin, Stevenson and Iacobucci JJ.

on appeal from the court of appeal for ontario

Judgments and orders ‑‑ Issue estoppel ‑‑ Abuse of process ‑‑ Plaintiff's award of damages for lost income following motor vehicle accident reduced for failure to mitigate ‑‑ Plaintiff later claiming disability benefits under insurance contract ‑‑ Same issue not decided in prior proceedings.

Statutes and Regulations Cited

Insurance Act, R.S.O. 1980, c. 218.

APPEALS from a judgment of the Ontario Court of Appeal (1989), 34 C.P.C. (2d) 193, reversing a judgment of the District Court (1987), 1987 CanLII 9945 (ON SC), 19 C.P.C. (2d) 5, 25 C.C.L.I. 159, dismissing respondent's actions against appellant insurers. Appeals dismissed.

Francis A. DeSantis and Paul T. Ferracuti, for the appellant Pilot Insurance Company.

Joshua Liswood, for the appellants CNA Assurance Company and the Citadel General Assurance Company.

Larry G. Culver and Bruce Davies, for the respondent.

//La Forest J.//

The judgment of the Court was delivered orally by

La Forest J. ‑‑ It will not be necessary to hear you Mr. Culver. The Court is ready to give judgment.

In our view, the identical question raised in the present actions was not decided in prior proceedings. In the prior tort action, the issue was a finding of fact as to ability to work in relation to assessment of damages. The issue in the present cases is the legal interpretation of disability under the terms of two insurance policies and the Insurance Act. The same consideration determines the issue of abuse of process.

The appeals are dismissed with costs and the orders of the Court of Appeal are affirmed.

Judgment accordingly.

Solicitors for the appellant Pilot Insurance Company: Agro, Zaffiro, Parente, Orzel & Baker, Hamilton.

Solicitors for the appellants CNA Assurance Company and the Citadel General Assurance Company: Sawers, Liswood, Scott, Hickman, Toronto.

Solicitors for the respondent: Evans, Philp, Hamilton.