Court File and Parties

COURT FILE NO.: CV-21-00666737-0000

DATE: 20220812

SUPERIOR COURT OF JUSTICE – ONTARIO

RE: ECONOMICAL MUTUAL INSURANCE COMPANY, Applicant

AND:

DANIEL LAMARCHE, Respondent

BEFORE: G. Dow, J.

HEARD: July 25, 2022

COUNSEL: Mark M. O’Donnell and Frank C. Caruso, lawyers for the Applicant

Daniel Lamarche, self-represented

ENDORSEMENT

G. DOW, J.

[1] The applicant, Economical Mutual Insurance Company (“Economical”) seeks declaratory relief that it provide no liability coverage to its insured, the respondent, Daniel Lamarche as a result of a motor vehicle accident on or about December 29, 2020 on Interstate 15 in California. Similarly, Economical seeks a declaration there is no duty to defend Mr. Lamarche in the circumstances.

Background

[2] Mr. Lamarche applied to Economical for motor vehicle insurance for his 2006 Mazda 3 GX 4 door on September 30, 2019. He represented living at an address on Avenue Road in Toronto and using the vehicle for pleasure rather than business. On October 1, 2019, Economical issued to him an Ontario Standard Policy (OSP 1) and charged a premium of $1,391.00.

[3] On January 3, 2020, Mr. Lamarche advised Economical of a change of address, to 680 Waterloo Street, Mount Forest. The policy was renewed the following year using the Waterloo Street address in the amount of $1,055.00.

[4] Following the accident, investigation indicated that Mr. Lamarche had moved to the United States in or about October, 2019. He also subsequently spent about six months in Mexico. He was working as a freelance photographer and living with a friend in Nipton, California. The address on Waterloo Street was that of his niece, where he apparently stayed for about one week.

Analysis

[5] In my view, given Sections 233 and 258 of the Insurance Act, this Application fails as premature and too broad I am reinforced in that conclusion by the comments by the Court of Appeal in Merino v. ING Insurance Co. of Canada, 2019 ONCA 326 (at paragraphs 28, 44 and 47).

[6] As indicated in that decision, the legislative scheme in Ontario addresses misrepresentations made in applications for insurance. While that occurred in this situation, it was not discovered until after the accident and the contract of insurance continued to exist. In fact, a Notice of Termination was issued March 17, 2021 effective April 19, 2021.

[7] As stated by the Court of Appeal:

“to summarize, the court found and clearly stated that s.258(1) applies to give an injured third party the right to collect his or her judgment against the at fault driver from that driver’s insurer where the insurer issued an automobile insurance policy that provided for indemnity, regardless of any misrepresentation that the insured may have made in the application for insurance” (at paragraph 28).

Further, Section 233 “governs the rights as between the insurer and the insured, while s.258 gives the injured third party the direct right to sue the at-fault driver’s insurer (at paragraph 44).

[8] Finally, misrepresentation does not render the contract void, terminated or rescinded as void ab initio (at paragraph 47). There are limitations to the insurer’s “right to receive certain statutory accident benefits: the insurers are not obligated to compensate the insured for other losses” (at paragraph 47).

[9] Section 258(9) of the Insurance Act, reduces the insurer’s exposure to minimum policy limits. Whether the insurer chooses to defend their insured directly in any action against their insured or added itself as a statutory third party under Section 258(14) is for the insurer to determine.

Conclusion

[10] There was no evidence or details about the nature and extent about any claims being advanced either by others involved in the motor vehicle accident of December 29, 2020 or by Mr. Lamarche. As a result, the application is dismissed without prejudice to it being revisited when any such claims materilize. As steps were taken to insure this Application came to the attention of the respondent, Daniel Lamarche, it is being forwarded to him at the Waterloo Street address, the counsel he had utilized in Nevada, Maier Gutierrez & Associates and at the email address indicated, bolddanielphotography@gmail.com.

Mr. Justice G. Dow

Released: August 12, 2022