Court File and Parties

CITATION: Goldhar v. Guarantee Company of North America, 2016 ONSC 7103

COURT FILE NO.: CV-13-20177

DATE: 20161116

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Darlene Goldhar and Gerald Goldhar, Plaintiffs

AND:

The Guarantee Company of North America, Defendant

BEFORE: Carey J.

COUNSEL: Gino Morga, Q.C., for the Plaintiffs

Shawn R. Macdonald, for the Defendant

HEARD: October 20, 2016

ENDORSEMENT

[1] This motion is brought by the defendant for summary judgment against the plaintiffs. They argue that the accident did not involve an unidentified motorist and that as the requirements of the plaintiffs’ auto insurance policy have not been followed, they are barred from a recovery.

[2] The plaintiffs argue that this motion should be dismissed as there is conflicting evidence as to how the accident occurred which can only be decided after a full trial. They say that these issues should only be taken away from a jury in the clearest of cases. If there are any policy breaches, they are all subject to a judge’s discretion to relieve the plaintiffs from forfeiture after hearing all of the facts.

Facts

[3] On December 30, 2011, Darlene Goldhar was operating her 2001 BMW on a county road near her home when she went off the road, rolled over and crashed her vehicle into the south ditch. The accident report indicates the driver was “driving to [sic] fast for conditions, multiple fresh skid marks observed…looses [sic] control, running off roadway, rolling over, crashing into south swale.” In her examination for discovery in September of 2014, Ms. Goldhar indicated that an oncoming vehicle caused her to lose traction, spin and roll over coming to rest in the ditch on the south side of the road. She suffered serious injuries, including fracture of her thoracic spine, fracture of her pelvis, fracture of her sacrum, fracture of her left humerous and periorbital hematoma. She was hospitalized from December 30, 2011 to January 17, 2012, at which time she was transferred to Amica where she remained to March 9, 2012. There was a two-day return to the hospital January 29 to 30 as a result of “hallucinations and mental incompetency”, which she attributes as a side effect of the medications she was on at the time.

[4] The police report makes no mention of alcohol use but concludes that high speed was a factor. It makes no mention of another vehicle being involved. One witness is listed on the accident report, Russ Hensel. Although Mr. Hensel provided a short written statement on December 30, 2011 to the attending officer, it was not received by counsel for the defendant until mid-February 2016. Defendant’s counsel forwarded the court a copy of that statement after argument was made on this motion. He had indicated that the statement was not in the defendant’s possession. I accept that counsel’s statement was made inadvertently. The defendant counsel’s accompanying letter indicated conformity between that brief statement and the witness Hensel’s statement sworn April 7, 2015, found at tab 3 of the motion record of the defendant. Counsel’s letter indicated that the recently provided statement taken by the officer was “consistent” with the April 7 sworn statement. While they are not inconsistent, they are not identical. The contemporary statement does not indicate that Mr. Hensel was approximately three quarters of a kilometre away when he first observed the accident occurring. There is no indication in either statement that the Goldhar vehicle came to Mr. Hensel’s attention in any way prior to it swerving.

[5] Neither statement comments on the vehicle braking although the accident report reports two sets of skid marks. It was not contended on this motion that the two sets of skid marks belonged to other than the Goldhar vehicle.

[6] Mr. Hensel has not been examined for discovery.

[7] The plaintiff, Darlene Goldhar, initially provided a statement to the insurance company while hospitalized, that indicates that no other vehicle was involved in this accident. Neither side is relying on that statement for its reliability on this motion given Ms. Goldhar’s mental state at the time of taking the statement on January 23, 2012.

[8] The statement of claim was issued November 22, 2013. In it, the plaintiffs allege that at the time of the accident, “an unidentified oncoming motor vehicle suddenly veered into the Plaintiff’s lane, causing the Plaintiff’s motor vehicle to move out to the right, run off the roadway, rolling over and crashing into south swale.” Ms. Goldhar was examined for discovery in Windsor on September 8, 2014. A partial transcript of discovery is included at tab F of the defendant’s motion record. In it, Darlene Goldhar indicates that it was a normal day and that she was doing banking so that she could get to her workplace by noon. Her work was very busy from noon on, at that time of year. I note it was the day before New Year’s Eve and the plaintiff and her husband operated Coolwater Fish and Romano’s At The Market at the Market Square in Windsor.

[9] She further indicated that as she was proceeding down North Rear Road, she saw a vehicle coming - a dark pick-up truck with three people in it. She indicated then that she thought she recognized one of the people as an ex-boyfriend of her daughter but “I don’t know if it was him or not”. When pressed in the examination, she named the individual that she thought the driver resembled.

[10] Darlene Goldhar’s affidavit sworn May 25, 2016, is included in the plaintiffs’ motion record at tab 1. In that, she documents and lists the serious injuries she received in the collision, and that she returned from Amica to the hospital on January 29, 2012 for “hallucinations and mental incompentencies”. She further relates that her memory of the events have returned to her “gradually”. She now believes she has a true and accurate recollection of what led up to the accident although she had no such recollection immediately afterwards. At para. 16 of that affidavit, she indicates that while on North Rear Road approaching the intersection with O’Brien Road, she reduced her speed, as the road was wet and appeared slippery. At para. 17 she describes an oncoming pick-up truck approaching her “head on. I also observed that the driver of the truck was male and that there were two other male passengers in the cab of the truck. The males appeared to be talking, laughing or dancing as the truck approached me and was all over the roadway.”

[11] She continues in her affidavit to describe moving to avoid a collision and allow the truck room to pass when she began to slide and fishtail crossing the roadway and rolling into the south ditch. Her affidavit indicates in para. 21, “At one time, I indicated that I thought it looked like someone I knew, however, I cannot identify the driver with any amount of certainty.”

Analysis

[12] The defendant points out that the plaintiff is in breach of the policy conditions of her insurance in that she did not give written notice within the applicable time that another vehicle was involved, they did not give details of the accident within 90 days and there is no corroboration of her allegation that another vehicle was involved. The defendant asserts this as part of their argument that pursuant to rule 20.04(2), summary judgment should be granted as there is no genuine issue requiring a trial. They rely on the provisions of the automobile insurance policy that the plaintiff had with the defendant and the endorsements attached to that, including section 5 of the policy and clauses 1.5(c), (d), and (7) of the OPCF-44 endorsement.

[13] The plaintiffs rely on s. 129 of the Insurance Act, R.S.O. 1990, c. I.8:

Where there has been imperfect compliance with a statutory condition as to the proof of loss to be given by the insured or other matter or thing required to be done or omitted by the insured with respect to the loss and a consequent forfeiture or avoidance of the insurance in whole or in part and the court considers it inequitable that the insurance should be forfeited or avoided on that ground, the court may relieve against the forfeiture or avoidance on such terms as it considers just.

[14] They also point to s. 98 of the Courts of Justice Act, R.S.O. 1990, c. C.43:

A court may grant relief against penalties and forfeitures, on such terms as to compensation or otherwise as are considered just.

[15] The plaintiffs state that Dams v. TD Home and Auto Insurance Company, 2016 ONCA 4, supports their position. In discussing the appropriate interpretation of s. 129, the Ontario Court of Appeal in a decision from last year uses as their starting point the analysis of the section in Falk Bros. Industries Ltd. v. Elance Steel Fabricating Co., 1989 CanLII 38 (SCC), [1989] 2 S.C.R. 778. At para. 16 of Dams, the court stated:

The Supreme Court observed, at p. 782, that sections like s. 129 are remedial in nature and “as such should be given an appropriately broad interpretation”. The purpose of allowing relief from forfeiture in insurance cases “is to prevent hardship to beneficiaries where there has been a failure to comply with a condition for receipt of insurance proceeds and where leniency in respect of strict compliance with the condition will not result in prejudice to the insurer”: at p. 783. However, the court’s power under provisions like s. 129 only extends to cases “of such statutory conditions as to proof of loss or other matters or things that are required to be done or omitted with respect to the loss”: at p. 786.

The court then addressed the question of whether the failure to give notice of a claim under an insurance policy amounted to “imperfect compliance with a statutory condition as to the proof of loss”, in which case relief under the statutory provision would be available, or whether it was non-compliance or breach of a condition precedent, in which case there could be no relief. It concluded, at pp. 785-786, that the failure to give notice of a claim in a timely fashion constitutes “imperfect compliance with a statutory condition as to the proof of loss” and falls within the terms of the relief provision. By contrast, the failure to institute an action within the prescribed time period would be a more serious breach, akin to non-compliance. Because Elance’s failure to give notice of its claim within the prescribed time constituted imperfect compliance rather than non-compliance, Elance was eligible to claim relief from forfeiture.

In the years following Falk Bros., this court has re-affirmed on several occasions that the discretion possessed by a court under s. 129 of the Insurance Act is limited only to those policy conditions – statutory or contractual – that relate to proof of loss:Williams v. York Fire & Casualty Insurance Co., 2007 ONCA 479, 86 O.R. (3d) 241, at para. 33; Kozel v. The Personal Insurance Company, 2014 ONCA 130, 119 O.R. (3d) 55, at para. 35. The court’s power under s. 129 concerns things or matters required to be done in relation to the loss – i.e. to instances of imperfect compliance with the terms of a policy after a loss has occurred: Williams, at para. 33; Kozel, at para. 58.

[16] It is clear to me that the trial judge will need to resolve whether the circumstances put forward by Mr. and Mrs. Goldhar are such as to warrant relief under s. 129. There is insufficient evidence at this stage to decide that issue on this motion.

[17] The issue of the plaintiff’s credibility and her present recall of the events that led to her serious motor vehicle collision and resulting injuries are issues that a fact finder (in this case a jury notice has been served) will be entitled to decide after a trial. Facts that will be relied on by the plaintiffs in seeking relief from forfeiture to sue their insurance company will include the recovered memory of the plaintiff, Darlene Goldhar. The adequacy of the police investigation as set out in the affidavit of accident reconstruction specialist Kevin Armstrong (sworn May 25, 2016) and other circumstances will also be in play. In determining whether the defendant insurance company has been prejudiced by the lack of timely disclosure by Mr. and Mrs. Goldhar, the trier of fact may wish to consider that the defendant did not receive Mr. Hensel’s statement to the police until earlier this year.

[18] The defendant’s motion is dismissed. Costs as agreed by the parties to the successful party plaintiffs in the amount of $5,000.

Original signed by Justice Thomas J. Carey

Thomas J. Carey

Justice

Date: November 16, 2016