COURT FILE NO.: CV-15-541194
DATE: 20200804
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Bhaviniben Vyas, Nirav Vyas and Riya Vyas, a minor through her Litigation Guardian, Nirav Vyas
Plaintiffs
– and –
Jonathan Brown and Coachman Insurance Company
Defendants
- and -
Allstate Insurance Company of Canada, added by Order pursuant to s. 258(14) of the Insurance Act, R.S.O. 1990, c. I. 8, as amended, with all rights which are conferred upon such party pursuant to section 258(1 5) of said Act
Statutory Third Party
Counsel:
No one appearing, for the Plaintiffs
C. Trotta, for the Defendant, Jonathan Brown A. Zivanovic, for the Defendant, Coachman Insurance Company I. Kirby, for the Statutory Third Party, Allstate Insurance Company of Canada
HEARD: July 17, 2020
BEFORE: O’BRIEN, J.
REASONS FOR JUDGMENT
OVERVIEW
[1] Jonathan Brown was driving on Highway 400 at a speed of between 198-215 kilometres per hour when he struck another vehicle, injuring the passengers in the other vehicle, one of them fatally. Mr. Brown’s evidence was that he was driving at that speed because it was late and he “just wanted to get home.” The question on this motion is whether, in driving at that speed, Mr. Brown was engaging in a “race” or “speed test.” If Mr. Brown was engaging in a “race” or a “speed test,” he would be excluded from coverage under his insurance policy.
[2] The accident occurred on October 11, 2015 at about 1:30 a.m. The Defendant, Mr. Brown, was driving southbound on Highway 400 near the exit to Highway 407 in Vaughan, Ontario. He had been visiting a friend in Woodbridge and was on his way home. Mr. Brown was travelling in the lane to the right of the far left outside passing lane. He was not travelling with any other cars and, at the time of the accident, he was not following another car, nor was another car following him. The Plaintiffs’ car pulled in front of him and Mr. Brown hit the rear passenger side of that vehicle. As a result of the accident, the three Plaintiffs were injured and their relative, Arti Vyas, died. Mr. Brown was charged by police and pled guilty to dangerous driving causing death.
[3] The Statutory Third Party, Allstate Insurance Company of Canada, brings this motion for summary judgment. The claim was brought initially against Mr. Brown and the Plaintiffs’ own automobile insurer, Coachman Insurance Company, for coverage under the uninsured/underinsured motorist coverage. Allstate is Mr. Brown’s insurer. Allstate took the position that Mr. Brown was in violation of a statutory condition of his policy in that he violated the prohibition on the use of an automobile in a race or speed test. Therefore, according to Allstate, Mr. Brown was not covered by the policy at the time of the accident. Allstate obtained an order pursuant to s. 258(14) of the Insurance Act, R.S.O. 1990, c. I.8 adding it to this action as a Statutory Third Party.
[4] The parties have reached an agreement to resolve the Plaintiffs’ claims upon payment of funds to the Plaintiffs. The parties also agreed that Allstate would bring this motion to determine which party or parties was or were responsible for the Plaintiffs’ damages and costs.
[5] The only issues for me to determine therefore are (1) is this action appropriately determined by summary judgment; and (2) was Mr. Brown engaged in a “race” or “speed test”?
[6] The question of whether summary judgment is appropriate in this case is easily addressed. Neither party provided any submissions on this point, as they agreed to proceed in this manner and it is evident that a motion for summary judgment is appropriate. Damages have been agreed upon and there are no material facts in dispute. The parties’ submissions are focused entirely on the legal question of whether, on the facts before me, Mr. Brown was engaged in a “race” or a “speed test.” In these circumstances, I am able to reach a fair and just determination on the merits, as discussed in Hryniak v. Mauldin, 2014 SCC 7, at paras. 49-50. I am satisfied that there is no genuine issue requiring a trial and, pursuant to r. 20.04(2)(b) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 it is appropriate to decide this matter on this motion.
[7] The second issue requires more discussion. For the reasons that follow, I conclude that Mr. Brown was not engaged in a “race” or a “speed test.” Accordingly, Allstate’s motion for summary judgment is dismissed and I declare that Allstate is liable to compensate the Plaintiffs for the entirety of the quantum agreed upon by the parties.
Statutory Condition – Race or Speed Test
[8] Pursuant to s. 234(1) of the Insurance Act, all policies of motor vehicle insurance in Ontario contain statutory conditions. The statutory conditions are prescribed in Regulation 777/93. They include, at s. 4 of that regulation, a prohibition against using an automobile for a race or speed test. Subsection 4(2) reads:
4.(2) The insured shall not use or permit the use of the automobile in a race or speed test or for any illicit or prohibited trade or transportation.
[9] The Ontario Automobile Policy, OAP 1, is a standard-form insurance policy approved by the Superintendent of Financial Services that establishes the required terms and conditions of contracts of automobile insurance in Ontario. At section 8, the OAP 1 incorporates the statutory conditions under Regulation 777/93, including s. 4(2).
Did Mr. Brown’s Conduct in this Case Constitute a “Race” or a “Speed Test”?
[10] I conclude that on the facts of this case, Mr. Brown was not engaged in a race or a speed test.
[11] Allstate submits that there is no reasonable explanation for Mr. Brown’s excessive speed on the night of the accident, other than that he was engaged in a “race” or “speed test.” Mr. Brown was not impaired, there was no suggestion that his vehicle malfunctioned, and he had no reason to be home by a particular time. Allstate further submits that, while “race” and “speed test” are not defined in the Insurance Act or its regulations, the Highway Traffic Act, R.S.O. 1990, c. H.8 (“HTA”) does define “race” and “contest.” Pursuant to those definitions, Mr. Brown would be found to have engaged in a “race” and/or “contest.”
[12] Coachman and Mr. Brown submit that excessive speed alone is not sufficient to constitute a race or a speed test. They say that the legislature did not specifically define “race” or “speed test” under the Insurance Act in the manner set out in the regulations under the HTA. Rather, judicial interpretation of these words in the insurance context has been consistent with their usual meaning. Specifically, past decisions in this area indicate that there must be an intention to engage in a race or speed test, often shown by “markers” of a race or speed test on the facts of a given case.
[13] I agree with the position of Coachman and Mr. Brown. First, I recognize that if the definitions set out in the HTA and its regulations applied, Mr. Brown would be found to have engaged in a race or contest. Engaging in a race or contest on a public highway is an offence under the s. 172(1) of the HTA. The terms “race” and “contest” are defined in s. 2(1) of Regulation 455/07 to the HTA such that it can be objectively determined whether the offence has been committed. That regulation defines “race” and “contest” to include “driving a motor vehicle at a rate of speed that is a marked departure from the lawful rate of speed.” Similarly, although not directly applicable here, the definition of “stunt” in s. 3 of that regulation includes “driving a motor vehicle at a rate of speed that is 50 kilometres per hour or more over the speed limit.”
[14] However, in my view, these definitions do not reflect judicial interpretations of “race” or “speed test” in the insurance context. Specifically, while, under the HTA definitions, a driver can be found to have engaged in a “race” or “stunt” by virtue only of having driven at excessive speeds, cases decided under insurance legislation have looked to whether the driver intended to engage in a “race” or “speed test.” Pursuant to these cases, driving at excessive or outrageous speeds alone is not sufficient.
[15] In Carnell v. Aviva Canada, 2010 ONSC 6359, aff’d 2011 ONCA 313, the court stated at para. 13 that a “race” is a “contest involving speed,” whereas a speed test is “merely a test of speed.” Further, a race is “a test between rivals,” with markers of participation in a race including “vehicles operating at high speed, in close proximity, over a fixed distance; abrupt lane changes; blocking; bold manoeuvres; jockeying for position; and high-risk passing”: Carnell, at paras. 15-16. In that case, even though the driver was driving at a speed of between 90 and 100 kilometers per hour on a race track (during a driver education event), he was not found to be engaging in a race or speed test.
[16] In Bush v. State Farm Mutual Automobile Insurance Co., (1996), 1996 CanLII 8241 (ON SC), 31 O.R. (3d) 312, [1996] O.J. No. 3705 (Gen. Div.), a driver sped up to in excess of 100 miles per hour to avoid capture from police. The court held that this was a “sudden burst of speed” after which the driver lost control of his vehicle, but was neither a “race” nor a “speed test.”.
[17] In a decision from Newfoundland, Doran v. Kelly (1983), 132 A.P.R. 271 (Nfld. S.C.), two vehicles were being operated at speeds of 140 kilometres per hour in a 60 kilometres per hour zone. One of the vehicles attempted to pass the other. In finding that the vehicles were not engaged in a “race” or “speed test,” the court noted that the two defendants had only met that morning at 2 a.m., that there was no evidence of a conversation respecting a race or a speed test, and that there was no evidence of any gestures between the defendants indicating a race or a speed test. The court concluded at para., 100: “Speed per se does not automatically mean a race or speed contest.”
[18] By contrast, two cases in British Columbia did find a “speed test” to have occurred where there were markers that this was the driver’s intention. In McGuinness v. Canadian General Insurance (1976), 1976 CanLII 1172 (BC SC), 66 D.L.R. (3d) 161 (B.C.S.C.), the court concluded that the driver was engaged in a speed test considering that he was driving a powerful racing car, he drove the car to a commonly known illegal “drag strip,” he made a U-turn on the north end of the drag strip, and after momentarily stopping the car, he then accelerated extremely rapidly, executing four gear shifts to obtain a speed of 100 miles per hour. In Murray v. Insurance Corporation of British Columbia, 1992 CanLII 180 (B.C.S.C.), the driver was found to have engaged in a “speed test” where his testimony was that he sped up to “see what his car could do.” The court found at p. 16 that “[a]ccording to the plaintiff’s own testimony, he was engaged in experimenting with and trying out the capacity for speed, that is swiftness of his car.”
[19] After review of these authorities, I conclude that excessive speed alone is not sufficient to constitute a “race” or a “speed test.” Race and speed test are not defined in Regulation 777/93 to the Insurance Act and, more specifically, the terms are not defined using an objective determination of fault as are the terms in the regulation to the HTA. Exclusions in an insurance policy are to be interpreted strictly and narrowly against the insurer: Carnell v. Aviva Canada Inc., 2011 ONCA 313, at para. 3; Bush, at para. 5. The question under the Insurance Act is whether in all of the circumstances, the driver was engaged in a “race” or a “speed test,” looking to factors such as whether he or she was engaged in a contest with other drivers and whether he or she intended to test the speed of the car. In the circumstances of a given case, excessive speed may be a critical factor in the court’s understanding of the driver’s actions, but it does not automatically lead to liability as it does under the HTA.
[20] Considering all the circumstances of this case, Mr. Brown was not engaged in a race. This case has none of the indicators of a “race” set out in Carnell. There were no other cars and there was no contest.
[21] Allstate’s primary submission, however, is that Mr. Brown was engaged in a speed test. It submits that on the facts of this case, the only reasonable explanation for Mr. Brown’s conduct is that he intended to test the speed of the car. I am not persuaded that I should infer from his excessive speed that this was Mr. Brown’s intention.
[22] Mr. Brown’s testimony was not that he intended to conduct a speed test. Nothing he said suggested he was interested in or was trying to test the speed of the car. Instead, he was trying to get home much faster than he should have. When asked why he was driving at that speed, Mr. Brown stated: “I was just speeding that night. I was just trying to get home. It was late. I just wanted to get home.” Mr. Brown did not have the pedal of the car pushed down as far as possible and was not in the outside passing lane. When asked whether he thought the car could go faster than he was going, he answered “I have no idea how fast the car can go.” Although Mr. Brown’s actions were reckless and irresponsible, this does not automatically lead to the conclusion that he was engaged in a speed test and I do not infer from all of the evidence that this was the case. Allstate has not met its onus of proving that Mr. Brown’s conduct falls within “race” or “speed test” as set out in Regulation 777/93.
[23] Given my conclusion that Mr. Brown’s actions did not constitute a race or speed test, I will deal only briefly with an additional issue raised by Mr. Brown, which was that he did not receive sufficient notice from Allstate of their off-coverage position. I would conclude that Allstate did provide sufficient notice. In a letter dated January 14, 2016, Allstate indicated that it reserved its right to set up a defence of non-coverage because of a violation of the statutory conditions of the Ontario Automobile Policy. It specifically cited the provision in issue here, s.4(2). Mr. Brown had legal representation at the time he received the letter. In my view, this letter was sufficient notice.
Disposition
[24] Allstate’s motion for summary judgment is dismissed. Although Coachman and Mr. Brown did not expressly state that they were seeking summary judgment, they did seek a declaration that Mr. Brown was not engaged in a race or speed test and, consequently, that Allstate is liable to compensate the Plaintiffs for the entirety of the quantum agreed upon between the parties. Accordingly, I declare that Mr. Brown was not engaged in a race or speed test and that Allstate is liable to the Plaintiffs for the entire quantum set out in the agreement between the parties dated November 8, 2018.
[25] With respect to costs, the parties already have provided me with their costs outlines. Coachman and Mr. Brown may provide any additional submissions of not more than three pages within 14 days of the date of this decision. Allstate will then have 7 days to provide responding submissions with the same length restriction. The submissions may be sent to my judicial assistant, Anna Maria Tiberio by e-mail.
O’Brien, J.
Released: August 4, 2020
COURT FILE NO.: CV-15-541194
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Bhaviniben Vyas, Nirav Vyas and Riya Vyas, a minor through her Litigation Guardian, Nirav Vyas
Plaintiffs
– and –
Jonathan Brown and Coachman Insurance Company
Defendants
- and -
Allstate Insurance Company of Canada, added by Order pursuant to s. 258(14) of the Insurance Act, R.S.O. 1990, c. I. 8, as amended, with all rights which are conferred upon such party pursuant to section 258(1 5) of said Act
Statutory Third Party
REASONS FOR JUDGMENT
O’Brien, J.
Released: August 4, 2020