Court File and Parties

COURT FILE NO.: CV-18-1206 DATE: 2019-01-07 SUPERIOR COURT OF JUSTICE – ONTARIO

RE: BRADLEY CLAYTON HUNT, Plaintiff AND: PEEL MUTUAL INSURANCE COMPANY, Defendant

BEFORE: The Honourable Mr. Justice P.J. Flynn

COUNSEL: Richard Campbell, Counsel for the Plaintiff, Moving Party M. Edward Key, Counsel for the Defendant, Responding party

HEARD: November 28, 2018

Endorsement

[1] The Plaintiff moves for a declaration that he is an “insured person” within the meaning of the Insurance Act, R.S.O. 1990, c.I.8, as amended, and that the Defendant is obliged to defend and indemnify him from claims made against him by his daughter Amealia.

[2] On July 20, 2014, the Plaintiff and his said daughter were passengers in a vehicle owned and operated by Tammy-Lynn Dingman when Ms. Dingman crossed the centre line and collided with another vehicle. It is alleged that Ms. Dingman was driving while under the influence of alcohol. As a result of the collision, Amealia and both of the others sustained personal injuries.

[3] Ms. Dingman is an insured under the Defendant’s policy, which insures her vehicle.

[4] The Defendant denies that it owes either a defence or an indemnity to the Plaintiff, because the allegations of negligence against the Plaintiff in the lawsuit brought by his daughter do not involve the “use or operation” by him of the Dingman motor vehicle.

[5] In this case is the Defendant insurer of the Dingman motor vehicle required to defend the Plaintiff against his daughter’s claim?

[6] Central to the answer is a clear understanding of s.239 of the Insurance Act:

239 (1) Subject to section 240, every contract evidenced by an owner’s policy insures the person named therein, and every other person who with the named person’s consent drives, or is an occupant of, an automobile owned by the insured named in the contract and within the description or definition thereof in the contract, against liability imposed by law upon the insured named in the contract or that other person for loss or damage,

(a) arising from the ownership or directly or indirectly from the use or operation of any such automobile; and

(b) resulting from bodily injury to or the death of any person and damage to property.

[7] Section 240 says that the insurer is not liable for any loss or damage occurring while a named excluded driver is driving.

[8] The Defendant concedes that the Plaintiff was an occupant of the Dingman vehicle at the time of the collision. And that Amealia was also a passenger, whose injuries vis a vis the driver, Dingman, relate to the operation of the vehicle.

[9] But the Defendant argues that the facts and allegations of negligence against him do not bring him within the definition of an “insured person”.

[10] He was simply a passenger and his daughter’s claim boils down to being a “negligent parent”. The Defendant argues that its obligations are not triggered for a passenger like the Plaintiff unless there is a causal connection between his negligent acts or omissions and the use or operation of the vehicle.

[11] In our case, the Defendant argues that the Plaintiff did nothing to influence the use or operation of the vehicle.

[12] The Defendant argues that Amealia’s allegations against her father pertain to negligent parenting not to his use or operation of a vehicle.

[13] In other words, simply allowing one’s child to ride with an impaired driver, without more, is not enough to trigger the duty to defend and to indemnify.

[14] The Defendant argues that while the Plaintiff might be “an insured” because he was an occupant, there can be no duty to defend him because the allegations of negligence against him are outside the “use or operation” of the Dingman vehicle.

[15] Peel makes its case in this rhetorical question:

Why should Mr. Hunt be afforded coverage by Peel pursuant to s.239 simply because he was an occupant of the vehicle when he would have no such coverage if he had remained on the driveway but allowed his daughter to ride in the car with Ms. Dingman?

[16] The allegations against him would still be “negligent parenting”. The case would be the same, except in one scenario he is in the car, and in the other, he stays behind. Why should one attract coverage, while the other does not?

[17] The Plaintiff argues that his “use” of the vehicle was for a very ordinary purpose: to transport his daughter. As opposed to a “not ordinary” use as a driving platform or as a building’s underpinning. And in that sense, I agree but what is missing in Mr. Hunt’s case is some form of direct or proximate causal relationship between the allegations of negligence and the use or operation of the car.

[18] I found the clear and careful analysis of my brother Pattillo in Morrow (Litigation Guardian of) v. Symons, 85 O.R. (3d) 365 to be of great assistance in concluding that the Defendant has no duty to defend, even if one were to conclude that for some purposes the Plaintiff is an insured under the policy. As he wrote: (at para. 51)

“In order to be entitled to a duty to defend, the claims alleged against them must be related to the use or operation of the vehicle …”

[19] Mr. Hunt’s acts or omissions in this case cannot meet the causation test in Citadel General Assurance Co. v. Vytlingam, [2007] 2 S.C.R. 373. In other words, Amealia’s claim against her father does not allege acts or omissions falling within the policy coverage.

[20] In the result, the Plaintiff’s motion must be dismissed, with costs in the agreed amount of $2,000.

P.J. Flynn J. Date: January 7, 2019