COURT FILE AND PARTIES

COURT FILE NO.: CV-10-00416159-0000
DATE: 20140917

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: HARVINDER SINGH, Plaintiff

AND:

GURWINDER SANGHA and AVIVA CANADA INC., and TRADERS
GENERAL INSURANCE COMPANY, Defendants

BEFORE: CHIAPPETTA, J.

COUNSEL:
Ryan Naimark, for the Plaintiff

S.J. Sokol, for the Minister of Finance on behalf
and in the name of the Defendant Gurwinder Singh

David M. Rogers, for the Defendants Aviva Canada Inc.
and Traders General Insurance Company

HEARD: August 15, 2014

ENDORSEMENT

Overview

[1] The Defendants, Aviva Canada Inc. and Traders General Insurance Company (hereinafter together “Aviva”), make a motion to this Honourable Court seeking summary judgment with respect to all claims and cross-claims made against them in the within action. Aviva seeks summary judgment on the grounds that it terminated the motor vehicle insurance policy issued to the Plaintiff prior to the accident which gave rise to the within tort claim and a separate claim for statutory accident benefits.

[2] The Plaintiff does not oppose the relief requested by Aviva.

[3] The Minister of Finance, through the offices of the Motor Vehicle Accident Claims Fund (hereinafter, “MVAC Fund”) represents the Defendant, Gurwinder Sangha, in these proceedings. The MVAC Fund opposes Aviva’s motion.

[4] The issue the court is being asked to resolve summarily is whether the motor vehicle insurance policy issued to the Plaintiff was properly terminated by Aviva in accordance with ss. 11 and 12 of the Statutory Conditions – Automobile Insurance, O. Reg. 777/93 under the Insurance Act, R.S.O. 1990, c. I.8. (hereinafter “ss. 11 and 12 respectively”).

[5] With respect to s. 12, I have concluded that deciding the issue summarily would provide a fair and just adjudication. The record permits me to confidently make the necessary findings of fact, apply the statutory law to those facts and resolve the issue while serving the goals of timeliness, proportionality and affordability: Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87 at para. 49.

[6] With respect to s. 11, I have concluded that the record contains conflicting evidence with respect to a finding of fact necessary to confidently resolve the issue summarily. The conflict cannot be resolved by using the powers under Rules 20.04 (2.1) and (2.2) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. It is however in the interests of justice to attempt to resolve the conflict in evidence summarily. For this reason, I am directing that the Plaintiff produce to the parties his bank account records for August 30, 2008 and that once produced, that parties re-attend before me for further submissions.

Hryniak v Mauldin

[7] The Supreme Court of Canada recently released its decision in Hryniak which sets the direction for how the court is to approach motions for summary judgment. In this case a group of investors claimed that they were defrauded by Hryniak. The investors brought an action for civil fraud against Hyrniak and subsequently brought a motion for summary judgment. The motion judge found that there was sufficient evidence to make out the cause of action against Hryniak, he also found there was no credible evidence to support Hyrniak’s claim that he was a legitimate trader and granted summary judgment against Hyrniak. The Supreme Court of Canada dismissed Hyrniak’s appeal and held that the motion judge did not err in exercising his fact-finding powers under Rule 20.02 (2.1) (at para. 94 and 96).

[8] The Supreme Court of Canada pronounced at para. 1:

Ensuring access to justice is the greatest challenge to the rule of law in Canada today. Trials have become increasingly expensive and protracted. Most Canadians cannot afford to sue when they are wronged or defend themselves when they are sued, and cannot afford to go to trial. Without an effective and accessible means of enforcing rights, the rule of law is threatened.

[9] The Supreme Court of Canada took this opportunity to discuss the important amendments made to Rule 20 with respect to summary judgment and suggested that summary judgment has become an important instrument of court reform. According to the court, the summary judgment motion is an important tool for enhancing access to justice because it can provide a cheaper, faster alternative to a full trial (at para. 34).

[10] The Court noted at para. 4:

[A] trial is not required if a summary judgment motion can achieve a fair and just adjudication, if it provides a process that allows the judge to make the necessary findings of fact, apply the law to those facts, and is a proportionate, more expeditious and less expensive means to achieve a just result than going to trial.

Background

[11] In July 2004, Aviva issued a standard OAP 1 motor vehicle liability policy bearing policy number A20710031PLA, with Harvinder Singh as the named insured, pursuant to a Policy Renewal Notice (hereinafter, “the policy”). The policy provided certain coverages, including “uninsured coverage” which provided coverage under the policy for amounts that the Plaintiff was entitled to recover from the owner or driver of an uninsured motor vehicle.

[12] As in the past, Aviva renewed the policy effective July 21, 2008. In consideration for the coverage provided, the Plaintiff agreed to pay a premium of $2,494.12 for the 12-month policy, pursuant to a payment schedule of $207.83 per month (some months $207.84), which was to be withdrawn automatically from the Plaintiff’s bank account on the 30th day of each month. The payment schedule stipulated that the monthly “payments will be withdrawn automatically as scheduled” and that “a $25.00 service charge will be levied against payments returned by the bank due to insufficient funds or payments not cleared”.

[13] There is no known history of the Plaintiff being in default of his monthly payment prior to July 30, 2008. The first monthly payment of the above noted premium was received on June 30, 2008. The monthly automatic withdrawal for July 30, 2008 was not completed due to non-sufficient funds.

[14] By correspondence dated August 8, 2008, Aviva notified the Plaintiff that it had received notice from the Plaintiff’s bank that there were insufficient funds in the Plaintiff’s bank account to cover the pre-authorized premium of $207.83 which had come due on July 30, 2008 pursuant to the payment schedule. This notice letter stated that Aviva would withdrawal $440.66 on August 30, 2008, to cover both July and August payments as well as the agreed upon $25.00 fee for payments returned due to insufficient funds, as outlined in the payment schedule. The letter further stated that if there were not sufficient funds in the Plaintiff’s bank account on August 30, 2008 to cover the full amount owing of $440.66, Aviva would cancel the policy for non-payment of premiums.

[15] Aviva attempted to withdraw $440.66 from the Plaintiff’s bank account on August 30, 2008. The withdrawal was not completed due to non-sufficient funds.

[16] On September 10, 2008, Aviva sent the Plaintiff a registered notice of cancellation, by registered mail to his residential address (hereinafter “the registered notice”). Therein, Aviva advised that unless the missed payment amount of $465.66, which amount included the two missed payments of $207.83 and two administrative fees of $25.00 each, was received by Aviva by October 11, 2008 at 12:00 p.m., the Plaintiff’s policy would be terminated for non-payment of premiums effective October 12, 2008 at 12:01am.

[17] No payment was received by Aviva in respect of the policy by October 12, 2008.

[18] On December 13, 2008, the Plaintiff was struck by a van while walking across a parking lot. The van was owned and operated by Gurwinder Sangha and was uninsured at the time of the accident.

[19] On January 9, 2009, the Plaintiff made an application for statutory accident benefits to Aviva, which application was dated December 13, 2008.

[20] On February 20, 2009, Aviva informed the Plaintiff that his policy had been canceled by the registered notice.

[21] On February 20, 2009, Aviva served a dispute between insurers on the MVAC Fund.

Section 12 – Effective Delivery

[22] The manner in which notice may be delivered to an insured by an insurer is regulated by s. 12 which reads:

Written notice may be given to the insured named in this contract by letter personally delivered to the insured or by registered mail addressed to the insured at the insured`s latest post office address as notified to the insurer.

[23] The registered notice was sent to the Plaintiff by Aviva by registered mail at his address at 211 Rollingwood Drive in Brampton, Ontario. On September 12, 2008, the registered notice was delivered to this address by Canada Post but a card was left at the address instead. Canada Post held the registered notice for pick up until October 3, 2008 when it was declared “unclaimed”. On October 6, 2008, the letter was returned to Aviva.

[24] At his examination for discovery held on February 28, 2013, the Plaintiff testified that he never received the registered notice. It is not in dispute, however, that the Plaintiff lived at 211 Rollingwood Drive in Brampton, Ontario at all relevant times to this motion. At the time the Plaintiff renewed his policy, he listed his address as 211 Rollingwood Drive in Brampton, Ontario and this was included in his renewal policy. At his examination for discovery, the Plaintiff confirmed that he continued to reside at this address at the time of the accident, which occurred after the registered notice was sent.

[25] The registered notice was therefore sent to the Plaintiff’s address. The Plaintiff did not receive it because he failed to pick it up from the Brampton West Office of Canada Post. There is no indication that he did not have an opportunity to do so. There is no duty on an insurer to follow up on returned mail or to go looking for an insured after it has complied with s. 12: Michalis v. Kingsway General Insurance Co., 2003 CarswellOnt. 6430, O.J. No. 6017 (Ont. S.C.J.) at paras. 6-7; and Thompson v. Dominion of Canada General Insurance Co., [1995] I.L.R. 1-3159, 1994 CarswellOnt. 138 (Ont. Gen. Div.) at paras. 1 and 3.

[26] Aviva complied with the statutory requirements for the delivery of the registered notice. I conclude therefore that the registered notice was effectively delivered to the Plaintiff in a manner legally capable of effecting cancellation of the policy. Summary judgment is granted to Aviva dismissing the claim and cross-claims against it as they pertain to s. 12.

Section 11 – Effective Termination

[27] The notice requirements for termination of a policy of automobile insurance by an insurer are prescribed by s. 11. Relevant to the issue herein it reads:

11. (1) Subject to section 12 of the Compulsory Automobile Insurance Act and sections 237 and 238 of the Insurance Act, the insurer may, by registered mail or personal delivery, give to the insured a notice of termination of the contract.

(1.2) Subject to subcondition (1.7), if the insurer gives a notice of termination under subcondition (1) for the reason of non-payment of the whole or any part of the premium due under the contract or of any charge under any agreement ancillary to the contract, the notice of termination shall comply with subcondition (1.3) and shall specify a day for the termination of the contract that is no earlier than,

(a) the 30th day after the insurer gives the notice, if the insurer gives the notice by registered mail; or

(b) the 10th day after the insurer gives the notice, if the insurer gives the notice by personal delivery.

(1.3) A notice of termination mentioned in subcondition (1.2) shall,

(a) state the amount due under the contract as at the date of the notice; and

(b) state that the contract will terminate at 12:01 a.m. of the day specified for termination unless the full amount mentioned in clause (a), together with an administration fee not exceeding the amount approved under Part XV of the Act, payable in cash or by money order or certified cheque payable to the order of the insurer or as the notice otherwise directs, is delivered to the address in Ontario that the notice specifies, not later than 12:00 noon on the business day before the day specified for termination.

(1.4) For the purposes of clause (a) of subcondition (1.3), if the insured and the insurer have previously agreed, in accordance with the regulations, that the insured is permitted to pay the premium under the contract in instalments, the amount due under the contract as at the date of the notice shall not exceed the amount of the instalments due but unpaid as at the date of the notice.

(1.7) If, on two previous occasions in respect of the contract, the insurer has given a notice of termination mentioned in subcondition (1.2) and the full amount payable under clause (b) of subcondition (1.3) has been paid by the time and in the manner that the notice specifies and if a non-payment again occurs of the whole or any part of the premium due under the contract or of any charge under any agreement ancillary to the contract, the insurer may, by registered mail or personal delivery, give to the insured a notice of termination of the contract and subcondition (1.1) applies to the notice, instead of subcondition (1.2).

[28] The MVAC Fund submits that the termination was not effective for two alternative reasons. First, it argues that the registered notice is void ab initio as it was triggered by a default created by Aviva and not the Plaintiff. Second, if not void ab initio, the registered notice is defective in overstating the amount due by an extra $25.00.

[29] The MVAC Fund argues that the registered notice was void ab initio as the Plaintiff never defaulted on the August 30, 2008 pre-authorized monthly payment as contracted and it is this payment upon which the registered notice is based. Aviva contracted with the Plaintiff to withdraw from his account the amount of $207.83 on August 30, 2008. Instead, on August 30, 2008, it attempted to withdraw $440.66, to cover both July and August payments as well as the $25.00 fee for payments returned due to insufficient funds. Aviva unilaterally and without the consent of the Plaintiff attempted to withdraw an amount unauthorized by the Plaintiff. It is submitted therefore that the purported cancellation was improper, not effective in law and void ab initio.

[30] The MVAC Fund relies on Justice Brown’s decision in Ontario (Minister of Finance) v. Progressive Casualty Insurance Co. of Canada, 2007 15475 (ON SC), [2007] 51 C.C.L.I. (4th) 35, [2007] O.J. No. 1769 at paras. 71-87 [Progressive]. In this case a fatal car accident claimed the lives of the driver, Mr. Nguyen, and two passengers and left another passenger, Mr. Ngo, seriously injured. The question before the court was who would bear the ultimate responsibility for paying Mr. Ngo’s accident benefits, the MVAC Fund or Mr. Nguyen’s insurance company, Progressive Casualty Insurance Co. of Canada (hereinafter “Progressive”). Progressive claimed that Mr. Nguyen’s policy was cancelled because of failure to pay. The MVAC Fund claimed that Progressive failed to comply with the schedule of payments that it sent to Mr. Nguyen by attempting to withdraw money on a day that was not agreed upon by the parties and therefore the policy should not have been cancelled.

[31] Justice Brown held that Progressive breached its contract with Mr. Nguyen when it failed to withdraw premium funds according to the schedule agreed upon by the parties. Justice Brown relied on Kingsway General Insurance Company v. West Wawanosh Insurance Company, (2002) 2002 14202 (ON CA), 58 O.R. (3d) 251 (C.A.) in which Arbitrator Robinson dealt with the consequences of the improper calculation of the premium on the termination of the policy:

To be a proper termination there must be a triggering event. Non-payment of a premium is such a triggering event which can result in the issuance of a Notice of Cancellation… Due solely to the actions taken by Kingsway General Insurance Company the premium charged resulted in a shortfall in the bank account. The shortfall was created by Kingsway General Insurance Company and not by their insured Frances Legard. Therefore, there was no reason whatsoever for Kingsway General Insurance Company to issue a Notice of Cancellation to Frances Legard.

Accordingly, I find that the purported cancellation by Kingsway General Insurance Company was improper. It was not effective in law and I exercise my jurisdiction under section 31 of the Arbitration Act to set aside the cancellation (at paras. 84-85 of Progressive).

[32] In Progressive at para. 85, Justice Brown held:

In my view similar reasoning applies to the present case. The triggering event for Progressive’s cancellation of the Policy was the non-payment of the premium on May 23, 1997 because Mr. Nguyen’s account lacked a sufficient amount of cleared funds. However, had Progressive complied with the terms of the Policy and sought to have withdrawn the premium on May 22, 1997, no default would have occurred because Mr. Nguyen’s account contained sufficient funds on that day to cover the premium. The shortfall was created by Progressive, not by Mr. Nguyen. Accordingly, there was no reason for Progressive to issue a notice of cancellation to Mr. Nguyen in respect of the May, 1997 premium and its Notice of Cancellation dated May 30, 1997 should be set aside.

[33] It is unclear on the record before me whether similar reasoning applies to this case.

[34] In this case, Aviva attempted to withdraw double the contracted monthly premium on August 30, 2008 plus the $25.00 fee. There is no term or agreement between the parties permitting Aviva to withdraw a double instalment if the previous instalment defaulted due to non-sufficient funds. The only consequence charge as agreed was the $25.00 service charge. Aviva relied on the default of the August 30, 2008 payment to trigger the cancellation of the policy, not the July 30, 2008 default as was their statutory right (Compulsory Automobile Insurance Act, R.S.O. 1990, c. C-25, s. 12).

[35] Critical to the facts as considered by both Arbitrator Robinson and Justice Brown above, is that had the insurer complied with the policy no default would have occurred because the insured’s account contained sufficient funds to cover the premium withdrawal as contracted. In other words, it was the actions of the insurer not the insured which caused the default.

[36] It is unclear whether the same can be said of Aviva. Would a default have occurred had Aviva, on August 30, 2008, attempted to withdraw $207.83 plus the $25.00 service charge from the Plaintiff’s bank account as agreed between the parties and not $440.66? The issue of whether the Plaintiff had sufficient funds in his bank account as of August 30, 2008 to cover the monthly premium of $207.83 and the $25.00 service charge remains a genuine issue requiring a trial. I make this conclusion as a result of the following conflicting evidence on the record before me:

i) The Plaintiff had been an insured with Aviva since 2004. There is no known history of the Plaintiff being in default of his monthly payment prior to July 30, 2008;

ii) As indicated on the accounting records of Aviva, the Plaintiff’s July 30, 2008 premium payment could not be withdrawn due to non-sufficient funds;

iii) The accounting records of Aviva indicate that the August 30, 2008 payment of $440.66 could not be withdrawn for the same reason; non-sufficient funds. There is no evidence as to whether or not $207.83 plus $25.00 was available;

iv) On April 3, 2009, the Plaintiff gave a signed statement to Aviva in the presence of his legal representative and with the use of an interpreter. He states therein “My insurer withdrew money directly from my account. In November 2008, there was no fund in the bank. I was informed that there was no fund. I didn’t pay to continue the insurance because I had no money”. No statement was made with respect to monies in his account as of August 30, 2008;

v) The Plaintiff applied for accident benefits shortly after the accident;

vi) At his examination for discovery the Plaintiff deposed:

Q: As I understand the policy, or the premiums for the policy, were to come out of your bank by direct deposit?

A: Yes.

Q: And that for the month of July, that, I guess, there was not enough money in your bank in order to make those direct deposits?

A: No, I used to have money in my account when the money when the job…

Q: Previously maybe, but do you remember in the month of July 2008 that there may have not been enough money in the bank to pay the premium?

A: No, I don’t remember. There never came a notice that the money was not withdrawn. Usually, I used to get paid by every week, that’s all I remember. My mortgage was also being paid from the same account.

Q: Is it possible that in the month of July that there was insufficient funds in the bank in order to pay the premium?

Mr. Naimark (Solicitor for the Plaintiff): I think what he says, he doesn’t remember.

Q: You’re not sure either way?

A: I don’t have knowledge about that.

Q: Do you remember receiving a letter from the insurance company, in August, suggesting that there were not sufficient funds in order to pay the premium?

A: I’ve never seen that letter. No, I never delayed any payment.

Q: I think you said you don’t remember ever seeing this letter?

A: No, I never received any letter in the mail.

Q: Do you have any information or knowledge, or belief, as far as whether you had enough money in your bank account, in the month of August, in order to pay the premium on the policy?

A: There’s a possibility of my payment, my settlement from work may have been delayed, so that’s what may have happened. All the payments were going through … from this same account, even my mortgage.

Q: You wouldn’t, though, check before the payments were due to make sure there was enough money in there, would you?

A: Yes, I used to check regularly.

vii) At his examination discovery the Plaintiff further deposed:

Q: On the top of Page 2 of that statement, I’m just going to try and read a phrase from it, and you can tell me if you still agree or if you now disagree with this, and correct me if I’m mistakenly reading it. Starting with the second line, “my insurer withdrew money directly from my account. In November 2008, there was no fund in the bank. I was informed that there was no fund. I didn’t pay to continue the insurance because I had no money. At the time of the accident”.

Mr. Naimark (Solicitor for the Plaintiff): Right you didn’t ask him about November of ’08, you asked him about August of ’08 and July of ’08, I believe.

Q: But do you agree with that, what I just read, that’s the case?

Mr. Naimark: I think the statement …we’re not disputing that that… the issue’s whether or not the cancellation was proper. I don’t think there’s really an issue as to whether or not there’s money in the bank.

Mr. Rogers: Okay.

Mr. Naimark: I’ll let you know if our position changes.

Mr. Rogers: Thank you.

Mr. Naimark: And if it was November of ’08, when there was no money in the bank, then technically there would be an additional reason why the cancellation is improper because I think you have to give 30 day’s notice. So, there would still be coverage if the issue was November of ’08.

Mr. Rogers: Please go off the record for one second.

viii) There is no evidence from the Plaintiff’s bank with respect to the status of the Plaintiff’s account as of August 30, 2008.

[37] Aviva argues that the funds in the Plaintiff’s bank account as of August 30, 2008 is not relevant as the contractual premium amount is $2,494.12 and the Plaintiff authorized his bank to debit its account “each month for the purpose of paying insurance premiums” to Aviva. This is a broad authorization, it is argued, without limits. I disagree.

[38] The parties agreed that the premium payments would be withdrawn automatically as scheduled. The authorization is located on the same document directly below the monthly payment schedule wherein it is clearly set out that $207.83 will be withdrawn on the 30th of each month. The authorization is restricted to the agreement between Aviva and the Plaintiff. The agreement is detailed above the authorization, in certain terms. Nowhere therein is there an agreement that all outstanding monthly premium amounts will be withdrawn upon default, on notice. Nowhere in the contract between the Plaintiff and Aviva is Aviva given this right.

[39] In my view, whether the Plaintiff’s account had sufficient funds on August 30, 2008 to cover the monthly premium as agreed is a genuine issue in this case. The triggering event for Aviva’s cancellation of the policy was the non-payment of $440.66. If sufficient funds were available to cover the August 30, 2008 monthly premium of $207.83 and the $25.00 service charge however, the shortfall was arguably created by Aviva, not the Plaintiff and arguably, the notice of cancellation should be set aside. If sufficient funds were not available on August 30, 2008 to cover the monthly premium as agreed, the unilateral decision of Aviva to withdraw all outstanding amounts would arguably be rendered moot and the triggering event deemed effective in law.

[40] The status of the Plaintiff’s account as of August 30, 2008 is also relevant to the MVAC Fund’s second argument. The MVAC Fund argues that the notice of cancellation fails to comply with s. 11(1.4). It is submitted that the amount stated in the notice as due exceeds the actual amount due by $25.00. Aviva caused the default of August 30, 2008, it is argued for reasons noted above, yet nonetheless charged the plaintiff a $25.00 service charge as a result of the default. The MVAC Fund argues that this is not correct. Rather, the outstanding amounts as of the date of notice were only the monthly premium payments for each of July 30 and August 30, 2008 and the $25.00 service charge from July 30, 2008. The notice of cancellation, it is argued, is therefore defective. Again, the argument assumes Aviva caused the default. The $25.00 service charge was arguably only improperly levied if insufficient funds were available in the plaintiff’s bank account to cover the August 30, 2008 monthly premium of $207.83 and the service charge of $25.00.

[41] Given the conflicting evidence, I cannot conclude with confidence that the Plaintiff’s account was without sufficient funds on August 30, 2008 to cover the monthly premium and service charge as agreed. This fact matters significantly to the resolution of the MVAC Fund’s arguments with respect to s. 11 compliance. It therefore represents a genuine issue requiring a trial. I do not believe the need for a trial can be avoided by using the powers under Rules 20.04 (2.1) and (2.2) of the Rules of Civil Procedure.

[42] Prior to Hyrniak, I would have ended the analysis here and dismissed the motion. In Hyrniak, the Supreme Court of Canada, at para. 5, held: I conclude that summary judgment rules must be interpreted broadly, favouring proportionality and fair access to the affordable, timely and just adjudication of claims. In this post Hyrniak era, I think it is incumbent upon a judge on a motion for summary judgment to pause prior to dismissing the motion and consider if there is any way that the matter could be resolved summarily considering the goals of timeliness, affordability and proportionality.

[43] The only impediment to resolving the issue summarily is concluding as a fact whether at least $207.83 plus the $25.00 service charge was in the plaintiff’s bank account as of August 30, 2008. The evidence on the issue is confused at best. The Plaintiff will be required to speak to this issue within the trial narrative, with the assistance of an interpreter. His employment status as of August 2008 will properly be assessed in this context.

[44] Prior to defaulting to the trial process for this finding, however, in my view, it is appropriate to direct the Plaintiff to produce to the parties his banking records as of August 30, 2008. The records, if available, represent the best evidence on the issue and are relevant and determinative of this motion.

[45] In King Lofts Toronto I Ltd. V. Emmons, 2014 ONCA 215, the parties appealed a decision in which summary judgment was granted to the party which did not claim for summary judgment. In upholding the decision of the motion judge, at para. 14, the Ontario Court of Appeal held: “The Supreme Court of Canada in Hryniak v. Mauldin…has approved a “culture shift” requiring judges to manage the process in line with the principle of proportionality in the application of Rule 20. The principles of proportionality and sensible management of the court process support the motion judge’s ruling”.

[46] I have considered both the parties’ obligation to lead their best case on a motion for summary judgment and motions’ judge consideration that the evidentiary record on the motion will be the evidentiary record at trial: Rogers Cable TV Ltd. v. 373941 Ontario Ltd., 1994 7367 (ON SC), [1994] 22 O.R. (3d) 25 (Gen. Div.). In my view, such an order is nonetheless consistent with the direction of the Supreme Court in Hryniak, to use summary judgment motion as an important tool for enhancing access to justice because it can provide a cheaper, faster alternative to a full trial (at para. 27).

Disposition

[47] Aviva’s motion is granted as it pertains to s. 12, effective delivery.

[48] Aviva’s motion is adjourned as it pertains to s.11, effective termination. The Plaintiff is ordered to produce to the parties his banking records as of August 30, 2008. The parties are directed to appear before me for further submissions upon receipt of the Plaintiff’s banking records for August 30, 2008 or upon being advised that the records are not available.

Costs

[49] Costs of the motion are reserved pending the further attendance as set out above.

CHIAPPETTA J.

Date: September 17, 2014