COURT FILE NO.: CV-16-561041

DATE: 2018-05-09

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Juney May Konopka, Applicant

– AND –

Traders General Insurance Company and/or Aviva Insurance Company of Canada, Respondents

COUNSEL: Eric Freedman, for the Applicant

Peter Duda and Peter Rollo, for the Respondents

BEFORE: E.M. Morgan J.

HEARD: May 9, 2018

REASONS FOR JUDGMENT

[1] This Application arises out of a car accident. The Applicant, Juney May Konopka, is 71 years old. She was insured with the Respondents, but was denied coverage in respect of an accident that occurred on May 28, 2014. She seeks a declaration that she is entitled to coverage.

[2] Ms. Konopka states that she took ill while driving her car to her cottage with her common law spouse, William Bridgen, who is also in his 70s. At some point she felt so weak and nauseous that she could not continue to drive. In her sworn testimony she indicated that she was afraid of passing out while behind the wheel.

[3] Ms. Konopka deposed that she had some chronic stomach problems and that she was under a doctor’s care for this condition. She apparently did not feel badly when they started their road trip, but the illness came on her about 40 minutes after setting out.

[4] According to Ms. Konopka, she pulled over and traded places with Mr. Bridgen. In her evidence, Ms. Konopka indicated that she stopped at the “side of the road”, but she is not particularly descriptive of whether there was a shoulder or other place to sit and wait. She deposed that she and Mr. Bridgen discussed travelling a couple of kilometers down the road to a mall where she could rest and perhaps get something to eat until she felt better. Ms. Konopka testified that from there, if she still did not feel well, she would have called a friend to come meet them and drive them back home.

[5] Ms. Konopka had never experienced these kinds of digestive and lightheadedness symptoms while in the car before, but she stated that she had experienced this at home. In discovery, she described an incident at home where she passed out and had to be taken to the hospital.

[6] Ms. Konopka indicated that she could have just pulled over to the curb at the side of the road, but she thought it would be safer to pull into the mall with a parking lot. She was worried that her symptoms were not just a passing feeling and that they would have to be sitting there for a while. She said she thought the traffic was starting to build and she was concerned about continuing to sit in the curb lane.

[7] The spot where Ms. Konopka pulled over was in front of a subdivision under construction. It appears that the houses were still unoccupied, so there was no one to ask for help in the area.

[8] As Ms. Konopka related it, a few moments after taking over the driving Mr. Bridgen caused an accident at an intersection. Her evidence is that he was trying to turn to get into the mall to which they were headed, but missed the turn and was turning late into the intersection.

[9] Mr. Bridgen did not have a valid driver’s license as his license had been suspended 20 years previously, in 1994. His driving record shows that the suspension came from a previous incident when he was driving without valid insurance coverage. Ms. Konopka was aware of the fact that he had no valid license. The evidence in the record establishes that he had never driven her car on any previous occasion.

[10] When Mr. Bridgen was examined for discovery he appeared to contradict Ms. Konopka’s version of events. He stated that he was driving from the very beginning of the road trip to the cottage, and suggested that Ms. Konopka hadn’t felt well right from the start of the trip. Later in his examination he then backtracked on that statement. He did not expressly correct himself, but toward the end of his examination his answers began to indicate that he now thought that he only started driving after Ms. Konopka had been driving for some time. The transcript gives the unmistakable impression that he was quite confused during the examination; frankly, Mr. Bridgen comes across as someone who has difficulty focusing on questions or understanding the context in which they are asked.

[11] In Tut v RBC General Insurance Co. 2011 ONCA 644, [2011] OJ No 4509, at para 16, the Court of Appeal indicated that there is a presumption of strict, but not absolute liability for an offense such as the one at issue – breach of the obligation of an insured not to permit an unlicensed person to drive her automobile, pursuant to s. 4(1) of the Ontario Automobile Standard Policy, O Reg 777/93. The offence is therefore subject to a due diligence defence, which is available “if he [or she] took all reasonable steps to avoid the particular event”: Kozel v Personal Insurance Co., 2014 ONCA 130, [2014] OJ No 753, at para 16 (Ont CA).

[12] Alternatively, s. 98 of the Courts of Justice Act may apply to these circumstances. That section provides “relief against penalties and forfeitures, on such terms as to compensation or otherwise as are considered just.” Counsel for both parties agree that this statutory relief, like the due diligence defense, also depends on a determination that Ms. Konopka acted reasonably under the circumstances.

[13] The relief against forfeiture remedy is equitable and is therefore discretionary: Saskatchewan River Bungalows Ltd. v Maritime Life Assurance Co., 1994 CanLII 100 (SCC), [1994] 2 SCR 490, 504. It is available for the offense of driving without a license, Kozel, at para 47, however, a person must make three showings: “that his or her conduct was reasonable, that the breach was not grave, and that there is a disparity between the value of the property forfeited and the damage caused by the breach”: Ibid, at para 51. Accordingly, whether the question is one of necessity under a due diligence defence or one of relief from forfeiture under the Courts of Justice Act, the real issue revolves around the same question: did Ms. Konopka act reasonably in trading places with Mr. Bridgen and allowing him to drive when she did not feel well?

[14] Counsel for Ms. Konopka concedes that if Mr. Bridgen was driving the entire time – that is, from the time the two of them left their home until the instant of the accident – Ms. Konopka has a difficult if not impossible case to meet. That is, the reasonableness of Ms. Konopka’s decision to let Mr. Bridgen drive knowing that he had no valid license depends on its having been necessary for her to do so. Ms. Konopka herself concedes that she felt fine when they started out from home, and states under oath that she only started feeling incapable of driving some 40 minutes later. If she let Mr. Bridgen drive from the outset, she would have not done so out of any necessity and it would not have been a reasonable decision to make. Neither due diligence nor relief from forfeiture could be made out.

[15] On the other hand, if Mr. Bridgen was confused in his examination for discovery when he said that he was driving right from the beginning of the trip, and if his subsequent statement that he only started driving at a later time when Ms. Konopka felt sick is determined to be accurate, there is at least a chance that Ms. Konopka acted out of necessity. The circumstances still have to be examined to determine whether the decision to let Mr. Bridgen drive was a reasonable one, but at least there would be some footing on which to make this argument.

[16] The evidence is that if there was no shoulder in the road, there was at least a narrow curb lane onto which the car initially pulled over. While I take Ms. Konopka’s point that one would worry about whether this was indeed a safe place to stop for a while to allow her to recover, it has not been described as an impossibly dangerous place. The road where they stopped is a street, not a limited access highway, and although Ms. Konopka expected the traffic to move quickly and to continue building, there is no suggestion that she had trouble pulling over or getting out of the driver’s side door and switching seats with Mr. Bridgen. Counsel for the Respondent indicates that the speed limit on the road where Ms. Konopka pulled over was 60 km/hr.

[17] It is clear to me that while Ms. Konopka may have felt ill, Mr. Bridgen was equally, if for different reasons, unfit to drive. His license had been suspended for over 20 years, and although one does not easily forget how to drive a car he was clearly out of practice. Moreover, Mr. Bridgen is quite evidently a person who suffers some frailties. He was unable to focus on and comprehend even the most straightforward questions during his examination for discovery.

[18] While I tend to believe Ms. Konopka and am of the view that Mr. Bridgen was simply confused when he said at first that he was driving the car for the entire trip, this level of confusion is noteworthy. He not only stated the facts incorrectly; he was entirely oblivious of his misstatement and seemed not to be able to appreciate the context in which the question about who was driving was being asked. In short, the transcript evidences a man who simply cannot get his bearings. His inability to concentrate would doubtless have been as well-known to his common law spouse as his lack of a driver’s license.

[19] Mr. Bridgen’s inability to focus on the task before him manifested itself within minutes of taking the wheel of Ms. Konopka’s car. He missed his turnoff at the mall intersection. Instead of continuing to the next intersection where, as Ms. Konopka testified, there was another entrance to the mall, Mr. Bridgen made the spontaneous and poor decision to turn late into the intersection he was already driving past. In doing so he hit another car travelling through that intersection.

[20] Mr. Bridgen’s driving speaks to the same laxity that one can see in his examination for discovery. He does not have good perception and comprehension of conversations and events occurring around him, and likewise is not capable of quick and effective reactions to the errors that inevitably occur as a result of those frailties.

[21] In Williams Estate v Paul Revere Life Insurance Co. (1997), 1997 CanLII 1418 (ON CA), 34 OR (3d) 161, 175, the Court of Appeal fleshed out the reasonableness requirement. In essence, all of the circumstances must be examined with an air of reality:

The reasonableness test requires consideration of the nature of the breach, what caused it and what, if anything, the insured attempted to do about it. All of the circumstances, including those that go to explain the act or omission that caused the lapse (forfeiture) of the policy, should be taken into account. It is only by considering the relevant background that the reasonableness of the insured’s conduct can be realistically considered.

[22] It is not reasonable to allow someone of Mr. Bridgen’s limited abilities to drive a car. I would go so far as to say that it might not have been reasonable to allow him to drive even if he had a valid license; but knowing that his license was suspended and that he had not driven for many years, it was not diligent or reasonable to allow him to drive on this occasion. Putting Mr. Bridgen in the driver’s seat was, unfortunately, an accident waiting to happen.

[23] Counsel for the Respondents points out that Ms. Konopka took none of the alternative options seriously. She had a cell phone with her but did not think to call someone to pick them up. She was feeling poorly, but she did not call 911 to ask for an ambulance. She did not think to sit in place in the car for a few moments with the hazard lights on, etc. In fact, it does not appear that once Mr. Bridgen started driving he pulled into the first plaza or parking lot they passed. Instead, he sailed through the intersection aiming for a shopping mall several kilometers away.

[24] There are no credibility issues in this matter that prevent me from deciding this Application on the basis of the record before me. I am willing to accept Ms. Konopka’s version and Mr. Bridgen’s attempt to correct his version of the facts. My concern, as already indicated, is not that I do not believe either Ms. Konopka or Mr. Bridgen. Rather, it is that I believe them but find that they prove themselves to be unreasonable and outside the scope of any due diligence or relief from forfeiture.

[25] Ms. Konopka concedes that she knew of Mr. Bridgen’s license suspension, and Mr. Bridgen in effect concedes (or, more accurately, graphically demonstrates) that he is confused and unfocused. She knew that he was not permitted to drive, and she must have also known that he is, in effect, incapable of driving.

[26] In my view, Ms. Konopka consciously, unreasonably, and without necessity, breached s. 4(1) of the Ontario Automobile Standard Policy by permitting an unlicensed person to drive her automobile. The Respondents were therefore within their rights in denying coverage for the accident.

[27] The Application is dismissed.

[28] Counsel for the Respondents seeks $8,915.30 in costs of this Application. Had the Applicant been successful, her counsel would have sought $8,102.90. Given how close these figures are to each other, the Applicant will not find the Respondents’ request to be unexpected: Rules of Civil Procedure, Rule 57.01(1)(0.b).

[29] The Applicant shall pay the Respondents costs in the amount of $8,915.30, inclusive of all fees, disbursements, and HST.

Morgan J.

Date: May 9, 2018