Court File and Parties

COURT FILE NO.: C-2830-13 DATE: 2019-04-29 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Johnathon Trudeau Plaintiff/Responding Party – and – David Cavanagh Defendant/Moving Party

Counsel: Brian Julien, for the Plaintiff Scott T. Croteau and Dhiren Chohan, for the Defendant

HEARD: April 17, 2019

Decision on Motion

DEL FRATE, J.

1The defendant brings a motion for summary judgment seeking the dismissal of the plaintiff’s action as a result of a motor vehicle collision on August 7, 2013.

Background

2On August 7, 2013, in the Town of Espanola, the plaintiff and defendant were involved in a motor vehicle collision. According to the police report, both parties were the owners and drivers of their respective vehicles. The plaintiff’s vehicle had been purchased a few days prior to the collision.

3The day prior to the collision, the plaintiff’s spouse called Brokerlink to insure the vehicle for both of them. Brokerlink placed insurance with Wawanesa under Policy No. 7869512, the same policy number which previously insured them.

4Due to the plaintiff’s driving record, Wawanesa had issued that policy to the plaintiff and his spouse with an OPCF 28A Excluded Driver endorsement. This endorsement was signed by both the plaintiff and his spouse on March 29, 2012. The excluded driver was to be the plaintiff.

5At the accident scene, the plaintiff called his spouse advising her of the accident and asking her for particulars of the insurance. It appears that proof of insurance bearing the same policy number was delivered to the accident scene and satisfied the investigating officer that a policy of insurance was in existence for that particular vehicle.

6The plaintiff then applied for accident benefits. The benefits were denied except for the medical and rehabilitation expenses since Wawanesa deemed the plaintiff “an excluded driver”. The plaintiff was made aware of the denial by letter dated August 23, 2013, from Wawanesa to the plaintiff.

7On October 3, 2013, a statement of claim was issued and the statement of defence was filed and served on April 7, 2014.

8Examinations for discovery were scheduled for May 7, 2015.

9On May 6, 2015, the accident benefit file from Wawanesa was provided to the defendant’s counsel. A cursory examination of the file disclosed that the plaintiff was an excluded driver. The discovery took place as scheduled with very limited questioning on the issue of a “excluded driver”.

10The litigation continued in the usual course and a mediation was scheduled for June 28, 2016, and a pre-trial date of October 26, 2016, was set in the event that the matter did not resolve at mediation.

11In preparation for the mediation, counsel for the defendant realized that s. 267.6 of the Insurance Act, R.S.O. 1990, c. I.8, would be applicable. Accordingly, he immediately notified the plaintiff’s counsel that the mediation would be cancelled and that he would be amending his statement of defence to include that section of the Insurance Act and that a summary judgment motion would be brought.

12The amendment to the statement of defence was permitted by Kurke J. on July 17, 2017. Subsequently, the summary judgment motion was heard on April 17, 2019.

Position of the Defendant

13The defendant submits that s. 267.6 is in play and prohibits an uninsured driver from bringing a tort action as a result of a motor vehicle collision. It is clear from the facts of the case and the documentary evidence that the plaintiff knew or ought to have known that he was an excluded driver. With such evidence, which is uncontested, the defendant argues that there is no genuine issue that would require a trial.

Position of the Plaintiff

14The plaintiff submits that summary judgment ought not to be granted since a finding of fact must be made as to whether the plaintiff had an honest but mistaken belief that he was an excluded driver on that particular vehicle. He relies on the fact that the excluded endorsement had been signed by him some 16 months before the accident and he believed that he was excluded solely from operating a “van” that he and his spouse had at the time of signing the exclusion endorsement.

15The defendant further relies on the fact that this newly acquired automobile was purchased and insured and that he did not speak directly to the broker because all of the dealings were conducted by his spouse. At no time was he or his spouse notified or reminded that he continued to be an excluded driver of any other vehicle other than the “van”.

16The plaintiff also relies on the fact that the excluded endorsement did not specifically refer to this “newly acquired vehicle”.

17The plaintiff relies on the following decisions:

• Kakish v. Bruce (2004), 71 O.R. (3d) 483 (S.C.J.);
• Black v. Hamm, 2011 ONSC 4149, [2011] O.J. No. 3017;
• Bigley v. Sanders, [2004] O.J. No. 1032 (S.C.J.);
• Traders General Insurance Co. v. McCubbin, [2009] O.J. No. 4478 (S.C.J.);
• Chen Estate v. Chung, 2010 ONSC 6531, [2010] O.J. No. 5086;
• Tompros v. Ravitharan, 2015 ONSC 3998, [2015] O.J. No. 3244; and
• GMAC Leasco Corp. v. Lombard Insurance, 2007 ONCA 665, 87 O.R. (3d) 513.

The Law

Summary Judgment

18Rule 20.01 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, permits the court to grant summary judgment if it is satisfied that there is no genuine issue requiring a trial. This can be permitted if the court can achieve a fair and just adjudication and if the court can make the necessary findings of fact to which the law can be applied. Such a procedure permits a more expeditious, efficient and less expensive means to achieve justice other than going to trial, thus enhancing the important principles of proportionality enunciated in Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C. R. 87, at paras. 4-5.

19If, however, the judge cannot determine whether there is genuine issue for trial based only on the evidence before him or her, the judge may resort to fact finding powers in rule 20.04(2.1), including: (a) weighing of evidence; (b) evaluating the credibility of a deponent; and (c) drawing any reasonable inference from the evidence: Hryniak, at para. 66.

20In this case, ss. 1(3), 2 of the Compulsory Automobile Insurance Act, R.S.O. 1990, c. C-24, must be considered. They read:

1 (3) Even if a motor vehicle is insured under a contract of automobile insurance, it shall be deemed to be an uninsured motor vehicle for the purposes of this Act while it is being operated by an excluded driver as defined in the Insurance Act with respect to that contract unless the excluded driver is a named insured under another contract of automobile insurance.

2 (1) Subject to the regulations, no owner or lessee of a motor vehicle shall,

(a) operate the motor vehicle; or

(b) cause or permit the motor vehicle to be operated,

on a highway unless the motor vehicle is insured under a contract of automobile insurance.

(2) For the purposes of subsection (1), where a permit for a motor vehicle has been issued under subsection 7 (7) of the Highway Traffic Act,

“contract of automobile insurance”, with respect to that motor vehicle, means a contract of automobile insurance made with an insurer.

21I must also consider s. 267.6 of the Insurance Act, which reads:

267.6 (1) Despite any other Act, a person is not entitled in an action in Ontario to recover any loss or damage from bodily injury or death arising directly or indirectly from the use or operation of an automobile if, at the time of the incident, the person was contravening subsection 2 (1) of the Compulsory Automobile Insurance Act in respect of that automobile.

(2) Subsection (1) applies whether or not the person was prosecuted for or convicted of an offence under the Compulsory Automobile Insurance Act.

Discussion

22In the present fact situation, the following facts are not disputed:

a. The plaintiff at all material times was operating a motor vehicle insured by Wawanesa pursuant to Policy No. 7869512. b. Pursuant to the policy, the plaintiff and his spouse, Pamela Menard, executed an OPCF 28A Excluded Driver endorsement on March 29, 2012. c. The said endorsement excluded the plaintiff from Policy No. 7869512. The endorsement is included. See Appendix A.

23What is disputed is whether at the material time of the accident, the plaintiff Johnathon Trudeau knew or ought to have known that he was an uninsured driver thereby precluding him from bringing a tort claim against the defendant.

24The defendant submits that it is clearly evident that the plaintiff was cognizant of his exclusion and he has failed to satisfy his onus to prove the contrary.

25The plaintiff’s explanation is that he believed that the exclusion applied solely to the “van” and not to other vehicles. This explanation is not plausible. His further explanation that neither he nor his spouse was notified by the broker that the exclusion was still in effect is also not plausible.

26The excluded driver endorsement is very clear that the effective date of the exclusion commenced on 2012-04-06 under Policy No. 7869512. There is no effective date of reinstatement under that policy.

27The affidavits of the plaintiff and his spouse indicate that when the spouse called the broker the day prior to the accident to insure the newly acquired vehicle under both names, the broker made no mention that the plaintiff was still an excluded driver and thus could not operate the vehicle. However, it was clear to the broker that the plaintiff was an excluded driver since on the Notice of Loss dated 13/08/07, the plaintiff’s spouse was notified that the plaintiff was an excluded driver.

28Although there are situations where an honest but mistaken belief may absolve the insured, this is not one of them: see Black v. Hamm; Bigley v. Sanders and Rae v. Grewal, [2005] O.J. No. 5411 (S.C.J).

29The cases relied upon by the plaintiff deal with actions brought by the insured directly against the insurer. Accordingly, s. 267.6 of the Insurance Act would not apply. Further, the plaintiff’s argument that the excluded driver endorsement did not particularize the vehicle that the plaintiff was excluded from driving does not carry weight. The endorsement that he signed states that the exclusion applies to “ALL VEHICLES INSURED UNDER THIS WAWANESA CERTIFICATE”. That wording is clear and unambiguous and any reasonable person should understand its significance.

30Similarly, both s. 267.6(1) of the Insurance Act and the Compulsory Automobile Insurance Act s. 1(3) preclude an excluded driver from recovery of damages or loss if the driver is excluded under the policy.

31In my view, the excluded driver endorsement cannot be any clearer on the consequences of operating the motor vehicle as an “excluded driver”. The consequences of operating a motor vehicle or permitting a motor vehicle to be operated by an excluded driver are outlined in paragraphs 3 and 4 of the endorsement. The endorsement requires not only the acknowledgment of the excluded driver, but also the acknowledgment of any named insured(s) whereby the excluded driver promises “not to drive the automobile(s)” and that the other named insured(s) “will not permit the excluded driver to drive the automobile(s) …” See paragraphs 3 and 4 of the endorsement.

32In my view, the facts are clear, the law is clear. There is no genuine issue for trial. Accordingly there is no necessity for a trial against the defendant. There may be other avenues available to the plaintiff, but those issues are not before me and are not part of this motion.

33I agree with the defendant’s submissions that the plaintiff was an excluded driver and that, pursuant to s. 267.6 of the Insurance Act, he is precluded from maintaining an action for bodily injury.

34Accordingly, the order is granted for summary judgment as against the plaintiff dismissing the action as against the defendant.

35Should it be to address the issue of costs, then the parties are to provide written submissions, not to exceed 3 pages, within the next 15 days.

The Honourable Mr. Justice Robert G.S. Del Frate