Court File and Parties
COURT FILE NO.: CV-10-00416159-0000 DATE: 20170608 SUPERIOR COURT OF JUSTICE - ONTARIO
RE: HARVINDER SINGH, Plaintiff AND: GURWINDER SANGHA, and AVIVA CANADA INC., and TRADERS GENERAL INSURANCE COMPANY, Defendants
BEFORE: Madam Justice V.R. Chiappetta
COUNSEL: 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: June 8, 2017
Endorsement
At the hearing, the back of the motion record was endorsed as follows:
Endorsement
1This endorsement should be read in conjunction with and in addition to mine of September 27, 2014 (Singh v. Sangha, 2014 ONSC 5147). As set out at paras. 36, 39, 40 and 41 therein, the issue of whether the plaintiff had sufficient funds in his bank account as of August 30, 2008 to cover the pre-authorized monthly premium of $207.83 and the $25.00 service charge remained a genuine issue requiring a trial. At para. 44, in the interest of efficiency and proportionality, I directed the plaintiff to produce his banking records as of August 30, 2008. The banking records as requested now form part of the evidentiary record. The banking records reflect that as of August 29, 2008, the insured had $728.06 in his bank account. The records further reflect that on September 2, $521.45 was withdrawn from the account for mortgage and insurance, leaving $206.61. At that point therefore, there was not enough funds in the insured’s bank account to pay Aviva the $207.83 plus the $25.00 service charge. The uncontested evidence of Baljit Gill, front line manager in the direct bill division of the customer and marketing and broker distribution department of Aviva, is that Aviva submitted a request to its bank to withdraw the funds four days from August 27, 2008, or August 30, 2008, the date on which the insured’s monthly payment plan agreement permitted Aviva to withdraw funds from his account to pay his insurance premiums. However, August 30, 2008 was a Saturday. When withdrawal requests are made for a date that falls on the week-end or a holiday, the withdrawal will be processed by the bank on the next business day. As September 1, 2008 was a statutory holiday the next business day following Aviva’s withdrawal request was September 2, 2008. Aviva’s withdrawal request on August 27, 2008 was accordingly effective on September 2, 2008. In my view, the facts of this case are distinguishable from those before Arbitrator Robinson and Justice Brown (Singh v. Sangha at paras. 30-35). In this case, it cannot be said that it was the actions of the insurer that caused the default. Aviva complied with the policy and sought to have the premium withdrawn on August 30, 2008. The shortfall was not created by Aviva. It was a consequence of the bank’s processing and the insured’s failure to have sufficient funds in his account to cover both his insurance premiums and his mortgage payments. In circumstances such as these, the insured must bear the responsibility for the default. It is for these reasons therefore that the motor vehicle policy issued to the plaintiff was properly terminated by Aviva in accordance with s. 11 of the Statutory Conditions – Automobile Insurance, O. Reg. 777/93, c. I.8.
Costs
Costs will be fixed on consent at $15,000 inclusive payable by Gurwinder Sangha as represented by the Minister of Finance pursuant to the Motor Vehicle Accident Claims Act to Aviva and Traders.
V.R. Chiappetta J.
Date: June 8, 2017