Court File and Parties

Court File No.: CV-16-125915 Date: 2019-06-25 Ontario Superior Court of Justice

Between: Chad Dawson, Plaintiff – and – Co-operators General Insurance Company Carrying on business as The Co-operators, Defendants

Counsel: Alfred Shorr, for the Plaintiff Roger Chown, for the Defendants

Heard: February 22, March 25 and 26, 2019

Reasons for Decision

MCKELVEY J.:

Introduction

[1] In 2007, the plaintiff owned two properties which were insured with Co-operators General Insurance Company (“Co-operators”). One policy was for his home, which was located in Innisfil, Ontario. The other policy was on a rental property in Barrie, Ontario. In September of 2007, Co-operators cancelled the insurance policy for the rental property in Barrie after the plaintiff’s credit card payment for the July premium was denied.

[2] On March 13, 2015, there was a fire and explosion at the rental property in Barrie owned by the plaintiff. The fire loss claim was denied by Co-operators on the basis that there was no coverage in place at the time of the fire.

[3] The plaintiff then brought an action claiming the sum of $379,000 representing the alleged damages resulting from the fire. Co-operators has brought a motion for summary judgment seeking a dismissal of the claim.

[4] The motion for summary judgment was initially heard on June 9, 2017. The argument of Co-operators focused on the fact that their policy was cancelled for non-payment of the premium. This related to the alleged refusal of the plaintiff’s credit card company to process the monthly premium for the Barrie property in July 2007. In the alternative, the defence argued that coverage under the policy lapsed when it came up for renewal in September 2007. During the course of argument on June 9, 2017, the plaintiff acknowledged that there was no insurance policy in effect at the time of the fire loss. Instead it asserted that the plaintiff’s claim would proceed based on allegations of negligence. Included in the allegations of negligence against Co-operators were allegations that its agent, the “James Blackwell Agency”, was negligent and that Co-operators is vicariously responsible for the negligence of Mr. Blackwell’s agency based on his alleged failure to maintain coverage on the Barrie property. For purposes of this motion, Co-operators has accepted responsibility for Mr. Blackwell’s agency.

[5] Following the parties attendance in court on June 9, 2017, the plaintiff took steps to amend his statement of claim to plead the following allegations of negligence against Co-operators:

(a) It failed to debit the plaintiff’s credit card of required payments, including the alleged non-payment in July of 2016 (sic). (b) It failed to give notice of default to the plaintiff. (c) It failed to give notice of default to the plaintiff’s mortgagee. (d) It failed to ensure that the plaintiff was aware or given notice that coverage had been terminated or alternatively, was not automatically renewed. The plaintiff further relies on the provisions of the Negligence Act, RSO 1990, c N.1..

[6] In addition, para. 11 of the original version of the Statement of Claim asserts as follows,

The Plaintiff states that at all material times he requested and was assured by the Defendant’s agent (James Blackwell) that he was insured as pleaded herein with the Defendant in connection with the property. The Plaintiff had a payment plan for his policies with the Defendant by which monthly premiums were automatically debited on his credit card. At all material times the defendant debited the Plaintiff’s credit card for the policies of insurance which the Plaintiff had with the Defendant. These debits continued well past the date that the Defendant alleged it had cancelled the aforesaid policy of insurance for non payment. To the extent that the Plaintiff may not have been insured on this property at the time of loss (which is denied), the Plaintiff states that the Defendant is vicariously liable for the failure of James Blackwell to ensure that there was coverage with the Defendant at all material times in connection with the property. As a result the Plaintiff has suffered damages in the amount of the loss and additional losses, full particulars of which will be provided on discovery.

[7] The matter did not come back for further argument on the motion for summary judgment until February and March of 2019. In the interim, further affidavits were filed and there were further examinations of the parties conducted. During the course of argument, the plaintiff’s solicitor advised that the allegation of negligence as set out in subparagraph (a) is not being pursued. Thus, the plaintiff’s case in negligence rests on the allegations set out in subparagraphs (b), (c) and (d) of the Further Amended Statement of Claim.

The Plaintiff’s Position

[8] As is apparent from the allegations of negligence, the plaintiff’s position is that Co-operators and the Blackwell Agency were negligent in failing to give him notice of default for the cancellation of the policy. He asserts that he proceeded on the basis that the coverage under the policy would be automatically renewed from year to year. In his affidavit dated March 1, 2017, he states at paras. 14 and 15 as follows:

14. I recall having many meetings with Mr. Blackwell. I do not recall when I had the last meeting. These meetings were to discuss my insurance needs.
15. At no time do I recall ever having a discussion with Mr. Blackwell where he advised me that I was uninsured in connection with my rental property (the subject property) and that I needed insurance. I believe it was his duty to review with me my insurance needs particularly since Co-operators had been providing insurance on the subject property.

The Defendant’s Position

[9] The defendant asserts that by the time of the fire in March, 2015, there was no relationship with the plaintiff that would give rise to a duty of care. The defendant further argues that the plaintiff was given actual notice by Co-operators and its agent that he did not have coverage with Co-operators. The defendant further argues that in any event, there was no duty to provide notice that the policy had lapsed. In these circumstances, the defendant argues that the action against it must be dismissed.

Applicable Legal Principles

[10] This is a motion for summary judgment under r. 20. In 2014, the Supreme Court of Canada released its decision in Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87, which considered when it is appropriate to grant summary judgment under r. 20 of the Rules. Rule 20.04(2) provides that,

The court shall grant summary judgment if, (a) the court is satisfied that there is no genuine issue requiring a trial with respect to a claim or defence;

[11] Rule 20.04(2.1) provides that,

In determining under clause (2) (a) whether there is a genuine issue requiring a trial, the court shall consider the evidence submitted by the parties and, if the determination is being made by a judge, the judge may exercise any of the following powers for the purpose, unless it is in the interest of justice for such powers to be exercised only at a trial:

1. Weighing the evidence.
2. Evaluating the credibility of a deponent.
3. Drawing any reasonable inference from the evidence.

[12] In its decision in Hryniak, the Supreme Court of Canada notes there will be no genuine issue requiring a trial when a judge is able to reach a fair and just determination of the merits on a motion for summary judgment. This would be the case when the process allows the judge to make the necessary findings of fact, allows the judge to apply the law to the facts, and is a proportionate, more expeditious and less expensive means to achieve a just result. The court notes, as well, that when a summary judgment motion allows a judge to find the necessary facts and resolve the dispute, proceeding to trial would generally not be proportionate, timely or cost effective. The question a court must consider is whether the judge has confidence that he or she can find the necessary facts and apply the relevant legal principles to fairly resolve the dispute.

[13] In the present case there are credibility issues which might influence the merits of the claim. I have concluded, however, that there is a sufficient evidentiary record which allows me to make the necessary findings of fact. I find, therefore, that the issues raised in the summary judgment motion do not require a trial. For the following reasons, I believe I am in a position to make the necessary findings of fact and apply those facts to the law in a way that will reach a fair and just determination on the merits of this case. I have concluded that the plaintiff’s action must be dismissed for the reasons that follow.

Chronology

[14] In order to understand the issues which arise on this motion for summary judgment, the following chronology is relevant:

(a) July 7, 2007 – On this date Co-operators processed the monthly premium for the Barrie property. However, the deduction could not be processed and it was returned under a code which meant the funds were not available from the plaintiff’s credit card. At para. 8 of Mr. Dawson’s Affidavit dated March 1, 2017, he asserts,

I absolutely and categorically deny that I was ever in arrears of premiums on either property in 2007.

During submissions, however, Mr. Dawson’s counsel acknowledged that his client was wrong when he asserted that he was never in arrears of premiums. The evidence that the July 2007 payment for the Barrie property was denied by the plaintiff’s credit card company is well supported by the records of Co-operators and the Affidavit of Susan Comber dated November 28, 2016. Ms. Comber has worked at Co-operations since April, 1986, and her affidavit goes through, in detail, Co-operators’ records relating to both the Barrie and Innisfil policies. She states at paragraph 23 that, “on July 7, 2007 the plaintiff’s regular deduction was processed, but was returned on July 11, 2007 under code 401 for “FNA set-up (funds not available)”. The Co-operators evidence is further supported by the credit card records for the plaintiff. His Visa account of July 2007, shows that he had charged over his credit limit on the card and that the time frame when the Co-operators premium for the Barrie policy was being processed represented the time at which the plaintiff’s credit card account exceeded the credit limit by the greatest amount. I, therefore, accept that the plaintiff’s July 2007 premium for the Barrie property was returned to Co-operators without payment by his credit card company.

(b) July 19, 2007 – A log note in the file shows that on July 19, 2007, an employee of Co-operators sent an email to the sales office advising them to collect $110.82 from the plaintiff, being the premium owed for the missed July payment plus $20 for a Not Sufficient Funds (NSF) fee by July 26, 2007, or the policy would be cancelled. It was also at this time that the employee initiated efforts to remove the plaintiff from the monthly payment plan due to Co-operators’ policy for removing someone from the monthly payment plan with a history of two other NSF payments in a three year period. According to Ms. Comber, at paragraph 40 of her Affidavit, no further payments were made by Mr. Dawson on the Barrie policy.

(c) July 20, 2007 – In her Affidavit, Ms. Comber states that an employee of the James Blackwell Agency called the plaintiff and left a voicemail on his answering machine asking him to call the office to pay the $110.82 owed (which included the $20 in NSF fees) by July 26, 2007, or the policy would be cancelled. The call to the plaintiff is documented in the computer records of Co-operators by Ms. Nicole Hihnala, who was employed at the Blackwell Agency. The plaintiff does not dispute receiving this telephone message (see pp. 64-65 of the plaintiff’s cross-examination on May 23, 2017).

(d) July 27, 2007 – On this date, a system generated renewal letter and offer to renew was sent to the plaintiff. This letter advised the plaintiff that, “your policy will be automatically renewing on September 1, 2007”. The offer to renew, which was attached, references a total premium of $851.04, but beside the reference to the total premium is a note which states “pre-authorized paid plan do not remit”. The evidence from the plaintiff is that he received the offer to renew and he relies on this document to support his belief that he thought the Barrie policy would be automatically renewed from year to year.

(e) July 30, 2007 – As stated in the Affidavit of Ms. Comber, and based on the log notes in the computer system, a registered letter was sent to the plaintiff on July 30, 2007, referencing the NSF payment and advising the plaintiff that coverage under the Barrie policy would cease “15 days following receipt of this letter at the post office to which it is addressed”. The plaintiff denies receiving a copy of this letter and notes that the letter had the wrong postal code. He acknowledges, however, that he did receive some correspondence from Co-operators at this address. This is reflected by his receipt of the renewal letter set out in paragraph (d) which was delivered without any apparent problem.

(f) August 3, 2007 – As stated in the Affidavit of Ms. Comber, and the log notes in the Co-operators computer system, Mr. Dawson called the Co-operators for a quote to insure his Yamaha jet boat. The note indicates that the plaintiff was advised that payment for the missed July payment on the Barrie policy needed to be made before the jet boat could be added. This conversation took place with Diane Potvin, who was employed at the Blackwell Agency. There is a separate Affidavit from Diane Potvin dated November 29, 2016, which records that while she has no independent recollection of the call apart from what is reflected in the note, she believes the call record is accurate and that she told the plaintiff “he needed to pay the missed July payment on the Barrie policy before we could get coverage for his boat”. This information is consistent with the log note made in the records. The plaintiff does not deny that this conversation occurred (see p. 63 of his cross-examination of May 23, 2017). I accept that this conversations took place as described by Ms. Potvin.

(g) August 27, 2007 – According to Ms. Comber, as stated in her Affidavit, a further termination of coverage letter was sent to the plaintiff on August 28, 2007. This letter again advised him that coverage under his Barrie policy would cease “15 days following receipt of the letter at the post office to which it is addressed”. However, it also added a note to disregard the offer to renew which had earlier been sent. Mr. Dawson again denies having received this letter and relies on the incorrect postal code as an explanation for why it was not received. At the same time, there is a log note in the Co-operators file which indicates a notice was sent to the mortgagee on file for the property to advise the mortgagee that the policy was being cancelled.

(h) September 10, 2007 – The plaintiff once again contacted Ms. Potvin at the Blackwell Agency as referenced in a log note, at which time the Yamaha boat was added to his Innisfil policy. A log note attached to the Barrie policy on the same date shows that Ms. Potvin spoke to the plaintiff and told him that Co-operators needed payment of $110.82 to reinstate the Barrie policy and that he needed to give a new credit card for the monthly payment plan. At para. 27 of Ms. Potvin’s Affidavit, she states,

It is apparent that while dealing with the plaintiff’s request to add his boat to the Innisfil policy, I became aware of the payment issue on the Barrie policy, and I advised him that the Barrie policy was not in place and he had to pay $110.82 to reinstate it.

When questioned on cross-examination about this conversation, the plaintiff’ testified as follows at p. 68 of his cross-examination on May 23, 2017,

Question: It says, “Spoke to Chad that we needed payment of 110.82 to reinstate. Informed him he needs to pay this and give new credit card number for monthly payment plan”. Answer: But you keep taking money off my credit card. Question: On the other policy. Answer: It doesn’t say policy one or policy two on there. Question: It does actually. Answer: On the credit card? Question: Oh, no, not on the credit card. Answer: So it doesn’t. Question: But it does in her notes. Answer: That’s her notes. I don’t keep her notes.

Later at p. 69, Mr. Dawson testifies as follows:

Question: But you deny getting the registered letters, but you’re not denying these conversations. Is that right? Answer: I spoke to them, yes. Question: Okay. Answer: Because I added the boat. I said if -- I would say take the payment. I don’t need to run away for $110. Take the payment. Question: All right. It may be that they would need a new -- if you’re going to go on a monthly payment plan, they need a new credit card when -- Answer: I’m already on a monthly payment plan. Question: For the one policy. Answer: Okay. If I was trying to pay you, you’re getting paid from this guy, you need a new credit card?

Again, given that Ms. Potvin’s evidence is supported by her log notes made contemporaneously and that Mr. Dawson agreed that he did speak with “them”, I accept Ms. Potvin’s evidence about the discussion that took place on September 10, 2007.

(i) September 17, 2007 – According to Ms. Comber, as stated in her Affidavit, the policy cancellation was entered into the Co-operators system effective September 17, 2007.

(j) September 16, 2010 – According to Ms. Comber, as stated in her Affidavit, the plaintiff contacted Ms. Harvey at the Blackwell Agency. A log note indicates that he was concerned about the premium on his Innisfil policy increasing from $115 per month to approximately $141 per month starting October 3, 2009, and to approximately $165 per month starting October 3, 2010. The log note of Ms. Harvey indicates that the plaintiff thought that he had his rental property insured through Co-operators, but that she could not find this policy. In an Affidavit of Ms. Harvey dated November 29, 2016, she states that because the Barrie policy had been cancelled in September of 2007, “it would not have appeared as an active policy in our system when I spoke to the plaintiff on September 16, 2010, and that explains why I told him that I could not find it”.

(k) September 23, 2010 – The plaintiff cancelled his Innisfil policy with Co-operators. Mr. Dawson sent an email in which he states, “Please cancel my policy at 2258 25 Side Road effective Sept. 27 as I have obtained coverage for 1/3 the price for more coverage even”.

(l) April 2013 – James Blackwell dies.

(m) March 13, 2015 – There is an explosion and fire at the Barrie property.

Is there a triable issue that Co-operators and/or its agent were negligent?

[15] The plaintiff’s allegations against Co-operators are that they failed to give notice of default to the plaintiff and failed to ensure that the plaintiff was aware or had been given notice that coverage had been terminated or not automatically renewed.

[16] With respect to these allegations there is good reason to doubt the credibility of the plaintiff. There are a number of serious inconsistencies in the plaintiff’s evidence. As noted previously, he asserted in his supporting affidavit that he “absolutely and categorically” denied that he was ever in arrears of premiums on either property in 2007. The evidence overwhelmingly demonstrates that this assertion is not correct and it was acknowledged by his counsel during oral argument that the plaintiff was “wrong” on this point.

[17] Another example of a significant inconsistency in the plaintiff’s evidence is the plaintiff’s assertion initially in his evidence on cross-examination that he owned 17 different properties. This is reflected at p. 81 of the transcript of his cross-examination on May 23, 2017, where he states as follows,

Question: And in all of your 28 -- sorry, how many other properties did you say you owned? Answer: Seventeen. Question: Seventeen. Answer: Bought and sold. Question: On all of those 17 properties, did you have insurance? Answer: Yes.

[18] This assertion was reiterated early on in his cross-examination on September 26, 2018 at p. 144 where he stated,

Question: Or were. All the residential rental properties that you told me about were owned in your name? Answer: Yes. Question: And you said there were 17 of them or so over the years? Answer: I believe so.

[19] Later on in his cross-examination on September 26, 2018, the plaintiff testified that he only owned 3 properties and the rest were owned by his parents. This evidence is found at p. 165 of his transcript from September 26, 2018 where he states,

Question: But I asked you, you know, in 2007 how many did you own and in 2010 how many did you own. Answer: I don’t -- yeah. The majority were before all this happened and they were with my parents. Question: Okay. That’s what I wanted to know. Answer: Uh-huh. Question: So just give me, if you can, just describe the properties that you bought and sold, more in terms of the numbers that you have owned and -- Answer: Personally? Question: -- whether they’ve been -- whether you’ve had partners in it or other people involved. Just describe what you’re talking about when you’re talking about the 17 properties. Answer: Okay. It would be I was involved with my parents, so it started with Cook Street, then Grove Street, then Bernard, then Collete -- or not Collete, then Blake Street. Then I was involved with them and their properties in Paris and Brantford. So that’s -- did I personally own 17, no. Question: Okay. Answer: That’s what I said, I was involved. Question: All right. So you -- were you on title at all for the ones that your parents owned? Answer: No. But I’ve lived in them. Question: Okay. Answer: And I’ve managed them. Because I’ve rented them out to students in college. Question: Did you manage the insurance on them? Answer: No. My dad’s an insurance broker. He handled the insurance. Question: Okay. So let’s go over the properties that you personally -- Answer: Okay. Question: -- owned? Answer: The three that are there.

[20] The plaintiff’s evidence in cross-examination also appeared to be quite evasive and showed that the plaintiff was not prepared to take any responsibility for the insurance on any of his properties. Initially Mr. Dawson suggested his accountant was responsible for keeping track of the insurance in his cross-examination on May 23, 2007. At p. 82 of his transcript Mr. Dawson goes on to state,

Question: So he looks after -- he’s in charge of ensuring that you’ve got insurance on your properties? Answer: Well, if there’s no payment coming out, there’s going to be a deduction, it’s going to be brought up. Question: Is he in charge of making sure there’s insurance on your properties? Answer: No. Question: Okay. Who is in charge of making sure there’s insurance on your properties? Answer: Your insurance agent. Question: What about you? Are you in charge of making sure there’s insurance on your properties? Answer: Well, I would think the government is as well. Question: Are you in charge of making sure there is insurance on your properties? Answer: No. Question: Okay. Who is? Answer: I would assume the mortgage companies carry that information. Question: So do you leave it to the mortgage companies to ensure that your properties are insured? Answer: Yeah. They have to make sure.

[21] Mr. Dawson’s assertion that everyone including the government was responsible for ensuring there was insurance on his properties, but that he had no responsibility, defies logic and reflects negatively on his credibility. This assertion is also inconsistent with the evidence that it was Mr. Dawson who contacted Co-operators in September 2010 because he was concerned about the escalating premium, and he personally sent the email dated September 23, 2010, cancelling the Innisfil policy.

[22] Finally, I note that in his evidence, the plaintiff described how he kept a spreadsheet on a yearly basis for each of the properties he owned. However, when he was compelled to produce these spreadsheets, he was only able to produce one spreadsheet for the Barrie property for the year 2013. It is interesting to note that on this spreadsheet it indicates insurance premiums of $64.72 per month were being paid. There is no explanation for these entries given that the evidence is clear that no further payments on the Barrie property were made to Co-operators after July 2007.

[23] In summary, therefore, there is good reason to question the credibility and reliability of Mr. Dawson’s evidence.

[24] In contrast, the evidence of Co-operators appears to be both credible and reliable. The evidence of Ms. Comber, Ms. Potvin, and Ms. Harvey is consistent and supported by contemporaneous notes which were entered into the Co-operators computer system. It is also significant to note that the log notes relating to the NSF payment are also consistent with the plaintiff’s charge card records. While the plaintiff denies receiving the termination of coverage letters from Co-operators, he does not specifically deny most of the discussions which are documented in the Co-operators records in the phone calls that took place with him.

[25] I find it difficult to accept the plaintiff’s evidence that he did not receive the written cancellation letters from Co-operators. The plaintiff relies on the fact that the mortgage company does not have a record of receiving the notice which Co-operators says it sent to the mortgage company confirming the termination of coverage. In this regard, the evidence of Mr. Devine, a representative of the plaintiff’s mortgage company, is of some assistance to the plaintiff. However, his evidence does not rule out the possibility that the mortgage company may have received the notice. At question 37 of his evidence given on June 29, 2017, Mr. Devine states,

I can tell you, that I didn’t see any notes on the file that we had received it. Whether or not it was sent, and it didn’t get processed correctly, I can’t say. All I know is I looked for confirmation in the file. I looked to see if we had received confirmation of cancellation insurance, and I couldn’t find it. And if we had received it, or if it had been dealt with, then Chad would have received a letter from us, about our impairment insurance.

[26] Later in his evidence, Mr. Devine testified that if a letter had been received from the insurance company it would be in what he described as a “mid-term file”. At p. 37 of his evidence he gave the following evidence,

Question: And you talked about a mid-term file. Would there be a paper mid-term file for this mortgage? Answer: Now, I think -- I have not seen any paper files, unless they’re archived somewhere in a box in some storage room that I don’t know about.

[27] However, even if one accepts Mr. Dawson’s evidence that the mortgage company did not receive the letters from Co-operators terminating his coverage, the evidence from Co-operators satisfies me that Mr. Dawson was orally advised about the cancellation of his coverage in his discussions with Blackwell Agency staff as described above. The evidence of the telephone messages and conversations with Mr. Dawson make it clear that he was told that he had to pay the outstanding amount of $110.82 or the policy would be cancelled. He would be well aware of the fact that he did not make these arrangements. When he added the jet boat to the Innisfil property, he was again advised that they needed payment to “reinstate coverage on the Barrie property”. When he spoke to the Blackwell Agency staff on September 16, 2010, he was told that there was no policy in the system.

[28] Based on the conversations which took place with Mr. Dawson and taking into account the contextual circumstances in which they took place, I conclude that Mr. Dawson was aware that his coverage was being cancelled and that by September 2010, he could not have had any reasonable belief that there was coverage for the Barrie property with Co-operators.

[29] As noted earlier, Mr. Dawson stated in his evidence that he relied on the Blackwell Agency, as well as others, to make arrangements for his insurance on the properties he owned. The evidence would suggest, though, that he kept a close eye on his insurance premiums for property owned by him. In September 2010, when he called about the premiums on his Innisfil property, he told the agent that he was looking to insure elsewhere because of the rates. When he cancelled the policy on September 23, 2010, he noted in his email that he had obtained coverage, “for one third the price for more coverage even”. It is apparent that Mr. Dawson was keeping a close watch on the insurance premiums for his Innisfil home that were being charged monthly. It is a reasonable inference, and one which I make, that he kept an equally close eye on the premiums being charged for his Barrie property. I conclude, therefore, that Mr. Dawson was aware of the fact that he had not been paying any premiums on the Barrie property for a period of over 3 years when he cancelled the Innisfil policy in September 2010. When this evidence is considered together with the evidence of the discussions that took place as described above, the inescapable conclusion is that Mr. Dawson was aware that coverage on the Barrie property had lapsed.

[30] In addition, after September 2010, there was no Co-operators policy in force for Mr. Dawson and his monthly credit card bills would not have disclosed any premium payments to Co-operators. This further supports my conclusion that Mr. Dawson knew that he was not paying any premium and that he had no coverage with Co-operators on any property for a period of almost five years before the fire. I, therefore, reject Mr. Dawson’s evidence that he was unaware of the fact that his coverage on the Barrie property with Co-operators had terminated before the fire in March 2015.

[31] In argument, the plaintiff’s solicitor argued that the alleged failure to notify the mortgage company constituted a breach of the duty to notify the mortgage company of the cancellation of the premium. Even assuming that the mortgage company did not receive a copy of the notice of cancellation, this, in my view, does not assist the plaintiff. If there was a duty owed it would be to the mortgage company, and as noted by Mr. Devine in his evidence, the insurance held by the mortgage company was only to cover their interest in any loss. In addition, this does not detract from my conclusion that the plaintiff was aware of the termination of coverage and failed to reinstate the policy or obtain alternate coverage.

[32] Further, even if one were to accept that the plaintiff relied on the offer to renew which was sent out by Co-operators on July 28, 2007, this would only provide coverage until September 2008. There were no further offers to renew sent out by Co-operators and no evidence to support a renewal after that time.

[33] There is some authority to suggest that there is no obligation on an insurer to notify its insured about the lapse of a policy: see, for example, Roy v. Atlantic Underwriters (1986), 67 N.B.R. (2d) 16 (C.A.). However, in some cases, courts have held that a duty exists to notify a customer of a pending expiry, or of a proposed non-renewal or cancellation. Thus, in Morash v. Lockhart & Ritchie Limited (1978), 24 N.B.R. (2d) 180 (C.A.), the court found that the evidence at trial justified a conclusion that the standard of reasonable care called for the defendant to notify the plaintiff in some way that his policy was not being renewed and that the omission to do so constituted negligence on the part of the insurer. In the present case, Mr. Dawson did not receive any renewal notices for the Barrie policy after July 2007, and has not received renewal documentation for any Co-operators policy since September 2010. He paid no premiums at all, to Co-operators, after he cancelled the Innisfil policy in September 2010. Even in the absence of the telephone discussions, there could be no reasonable belief by Mr. Dawson that the Barrie policy was still in force. It follows that, by the time of the fire, there was no duty on Co-operators to notify Mr. Dawson that his coverage on the Barrie property had lapsed.

[34] In summary, I have concluded that prior to the fire in March 2015, Mr. Dawson had been notified about the termination of the Co-operators coverage on the Barrie property. The evidence, when considered in its proper context, satisfies me that Co-operators met any duty it owed to the plaintiff to advise of the fact that coverage under its policy had ceased. The plaintiff failed to respond to demands that he make premium payments in order to reinstate his coverage. In failing to do so, and in failing to arrange for alternate coverage, he was the sole author of his own misfortune.

[35] Given my finding on this issue, it is clear that the motion for summary judgment must be granted and the plaintiff’s action is, therefore, dismissed. In light of this finding, it is not necessary for me to consider the defendant’s alternative argument as to whether, in light of the lapse of time, any duty of care at all was owed to the plaintiff.

[36] If counsel cannot agree on the costs of this motion then an appointment should be taken out with the trial coordinator within 30 days of the release of this decision to address the issue of costs. In such event, the parties will deliver concise briefs at least 2 days before their attendance. If no arrangements are made within 30 days for an appointment to speak to costs, there will be no order for costs.

Justice M. McKelvey Released: June 25, 2019