COURT FILE NO.: CV-18-1160

DATE: 2022-12-08

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Kerry Smith

Plaintiff

– and –

Robert Taylor

Defendant

Aviva Canada Inc.

Defendant

Nicholaus de Koning, for the Plaintiff / Responding Party

Steven Stieber, for the Defendant / Moving Party Aviva Canada Inc.

HEARD: November 18, 2022

The Honourable mr. justice M.J. Valente

ruling on motion

[1] The moving party and defendant, Aviva Canada Inc. (‘Aviva’), seeks an order pursuant to Rule 21.01(1)(a) of the Rules of Civil Procedure, RRO 1990, Reg 194, (the ‘Rules’), or in the alternative, pursuant to Rule 20 of the Rules dismissing the action of the responding party and plaintiff, Kerry Smith (‘Smith’), on grounds that the Comprehensive Home Owner’s Policy bearing policy number P96230674HAB (the ‘Primary Homeowner’s Policy’) issued to the deceased, Kenneth Schlimme (‘Schlimme’), does not provide coverage to Smith arising from the motor vehicle accident that occurred on August 18, 2017, or in the alternative, that Smith’s claim discloses no genuine issue for trial.

The Facts

(a) The Accident

[2] On August 18, 2017 Schlimme suffered fatal injuries after being struck on his motorcycle by a vehicle operated by the defendant, Robert Taylor (‘Taylor’), (the ‘Accident’). At the time of the Accident, Smith was the common law spouse of Schlimme.

[3] Smith claims damages of some $3,500,000 which include substantial financial dependency losses.

[4] Smith claims indemnity against Aviva pursuant to a Personal Excess Liability Policy Endorsement (the ‘Excess Endorsement’) included in the Primary Homeowner’s Policy based in part on the position that Taylor was an “inadequately insured motorist” at the time of the Accident

[5] At the time of the Accident Taylor was insured under an automobile policy of insurance issued by Wawanesa Mutual Insurance Company (the ‘Wawanesa Policy’). The Wawanesa Policy provides liability coverage of $1,000,000 for claims of bodily injury made against Taylor.

(b) The Policies

(i) The Auto Policy

[6] Aviva issued an Automobile Insurance Policy to Smith that was in place at the time of the Accident (the ‘Primary Auto Policy’) and Schlimme was an insured under the Primary Auto Policy at the time of the Accident

[7] The Primary Auto Policy is the standard Ontario Automobile Policy (OAP1) Owner’s Policy and also includes the optional Family Protection Coverage added by the Ontario Policy Change Form 44R – Family Protection Coverage with policy limits of $1,000,000 (the ‘OPCF 44R’).

(ii) The Family Protection Coverage

[8] The OPCF 44R provides Smith with indemnity if an insured under the Primary Auto Policy is injured by an “inadequately insured motorist”.

[9] Our Courts have recognized that the OPCF 44R is an optional form of coverage and added to the standard OAP1 automobile insurance policy by way of an endorsement attached to the policy (see Kahlon v. ACE INA Insurance, 2019 ONCA 774 at para. 23). To be entitled to coverage under the OPCF 44R, the policyholder must be injured by a third-party motorist with liability insurance limits below the limits of the OPCF 44R purchased by the policyholder.

[10] The OPCF 44R defines each of “family protection coverage”, “inadequately insured motorist” and “limit of family protection coverage” as follows:

1.4 “family protection coverage” means the insurance provided by this change form and any similar indemnity provided under any other contract of insurance.

1.5 “inadequately insured motorist” means

(a) the identified owner or identified driver of an automobile for which the total motor vehicle liability insurance or bonds, cash deposits or other financial guarantees as required by law in lieu of insurance, obtained by the owner or driver is less than the limit of family protection coverage; or

POVIDED THAT

(A) where an eligible claimant is entitled to recover damages from an inadequately insured motorist and the owner or operator of any other automobile, for the purpose of

(i) (a) above, and

(ii) determining the insurer’s limit of liability under section 4 of this change form,

the limit of motor vehicle liability insurance shall be deemed to be the aggregate of all limits of motor vehicle liability insurance and all bonds, cash deposits and other financial guarantees as required by law in lieu of such instance, for all of the automobiles.

1.7 “limit of family protection coverage” means the amount set out in the Certificate of Automobile Insurance with respect to this change form, but if no amount is set out in the Certificate, the limit for liability coverage set out in the Certificate with respect to the automobile to which this change form applies is the limit of family protection coverage.

[11] Both Aviva and Smith agree that the OPCF 44R limits on the Primary Auto Policy are in the amount of $1,000,000.

[12] Both parties also agree that were Smith injured by an “inadequately insured motorist”, pursuant to the Primary Auto Policy, Aviva would be required to pay the difference between the policy limits of the third party inadequately insured motorist’s available coverage and Smith’s OPCF 44R limits. Section 4 of the OPCF 44R provides as follows:

The insurer’s maximum liability under this change form, regardless of the number of eligible claimants or insured persons injured or killed in or the number of automobiles insured under the Policy, is the amount by which the limit of family protection coverage exceeds that total of all limits of motor vehicle liability insurance, or bonds, or cash deposits, or other financial guarantees as required by law in lieu of such insurance, of the inadequately insured motorist and of any person jointly liable with that motorist.

[13] Further, Aviva and Smith agree that because Taylor’s Wawanesa Policy provides liability coverage of $1,000,000 and Smith’s OPCF 44R coverage limit is of an equal amount, Taylor is not an “inadequately insured motorist” pursuant to the OPCF 44R terms and conditions and no amount is payable by Aviva pursuant to the OPCF 44R coverage.

[14] Finally, section 18 of the OPCF 44R addresses when Smith may claim “inadequately insured motorist” coverage from another policy:

The following rules apply where an eligible claimant is entitled to payment under family protection coverage under more than one policy:

(a) […]

(ii) if he or she is not an occupant of an automobile, such insurance in any policy in the name of the eligible claimant is first loss and any other such insurance is excess.

(b) the applicable first loss insurance shall be exhausted before recourse is made to excess insurances.

(iii) The Primary Homeowner’s Policy

[15] Aviva issued the Primary Homeowner's Policy that was in place at the time of the Accident. The parties agree that Smith is insured under the Primary Homeowner's Policy.

[16] The Primary Homeowner's Policy includes a Personal Excess Liability Policy Endorsement (the “Excess Endorsement”). The Excess Endorsement provides in part for a limit of $1,000,000 in excess insurance to the “inadequately insured motorist” coverage provided under the OPCF 44R of the Primary Auto Policy. The Excess Endorsement provides excess insurance to the Primary Auto Policy held by the policyholder pursuant to the following terms:

INSURING AGREEMENT

“We” will pay on behalf of the “Insured(s)” the “Ultimate Net Loss” that is legally liable to be paid as “Compensatory Damages” arising form an “Occurrence” that takes place during the policy period within the “Coverage Territory”.

1. “We” will only pay in excess of the “Underlying Insurance” or in excess of the minimum required underlying limit, whichever is greater. In addition, the insurance provided by this policy shall be liable only after the insurers under each of the “Underlying Insurance” policies have paid or have been held liable to pay the full amount of the underlying limits of liability.

[17] The Excess Endorsement defines “Underlying Insurance” as including the Primary Auto Policy as follows:

“Underlying Insurance” means the insurance provided by personal property, personal automobile and personal watercraft policies issued to the “Named Insured” and “Spouse” of the “Named Insured” through Aviva Insurance Company (Canada) or any affiliated member of the Aviva group of companies (Canada).

[18] The Excess Endorsement also stipulates that the coverage it provides is subject to the same terms and conditions as the Primary Auto Policy:

INSURING AGREEMENT

2. This policy is subject to all the same terms, conditions, limitations and exclusions as the “Underlying Insurance” and in no event will this policy provide broader coverage than the “Underlying Insurance.”

[19] The Excess Endorsement further provides:

Family Protection Coverage

Subject to the terms and conditions of this policy coverage provided by this policy is extended to pay amounts which “You” are legally entitled to recover as “Compensatory Damage” for “Bodily Injury” or for damage to property from an inadequately insured motorist.

Subject to the terms and conditions of this policy, this additional coverage feature will only pay in excess and subject to all the same terms and conditions as the “Family Protection Coverage” on the primary underlying motor vehicle liability policy under which “Your” “Automobile(s)” is insured.

This coverage only applies when “Family Protection Coverage” forms part of the motor vehicle liability policies under “Underlying Insurance.”

[20] Additionally, the Excess Endorsement Condition 12 addresses when the additional coverage applies:

Loss Payable

Liability under this policy shall not apply unless and until the “Insured(s)” or the “Insured(s)” underlying insurer has become obligated to pay the available limits of the “Underlying Insurance” or self-insured retention, whichever applies…

Issues to be Determined

[21] Aviva submits that in order for Smith to recover under the Excess Endorsement, she must prove that:

a. she is an “eligible claimant” under the OPCF 44R attached to the Primary Auto Policy;

b. she was injured by an “inadequately insured motorist” as defined under the OPCF 44R of the Primary Auto Policy; and

c. the limits of the OPCF 44R of the Primary Auto Policy have been both triggered and exhausted.

[22] While Smith agrees that Taylor must be determined to be an “inadequately insured motorist” for her recovery under the Excess Endorsement, she disputes that the OPCF 44R definition of “inadequately insured motorist” should be applied in this instance and objects to the proposition that the OPCF 44R limits must be exhausted before she sees any recovery under the Excess Endorsement.

[23] Both Aviva and Smith agree, however, that Smith is an “eligible claimant” as defined by the terms of OPCF 44R.

Preliminary Issue

[24] Prior to examining the above issues and the parties’ respective positions, I have considered whether I am able to determine the matter of Smith’s entitlement to the Excess Endorsement coverage pursuant to Rule 21.01(1)(a). I am satisfied it would be appropriate to do so. There are no material facts in dispute and the coverage issue is a question of law that can be determined based on the pleadings and the documents referenced therein. I also note that Smith’s counsel raised no objection to the Court proceeding to decide the issues in this manner.

Position of the Parties

(a) Aviva

[25] Aviva’s counsel submits that just as Smith must be injured by a third-party “inadequately insured motorist” to be entitled to coverage under the OPCF 44R, so too must she be injured by a third-party motorist that meets the same definition of “inadequately insured motorist” to benefit from the Excess Endorsement coverage. Aviva’s position is that where, as in this case, a term is left undefined in the endorsement, then that term adopts its definition from the underlying policy. Accordingly, the undefined term, “inadequately insured motorist”, in the Excess Endorsement adopts the definition of that same term in paragraph 1.5 of the OPCF 44R. That definition which incorporates by reference the defined term of “limit of family protection coverage” (from paragraph 1.7 of the OPCF 44R) requires that Smith, as the policyholder, be injured by a third-party motorist with liability insurance limits below the limits of the OPCF 44R purchased by her. Because in this case, Taylor’s policy limits are equal to the limits of Smith’s OPCF 44R, Taylor does not qualify as an “inadequately insured motorist”, and therefore, according to Aviva, Smith cannot recover under the Excess Endorsement.

[26] Counsel for Aviva also submits that pursuant to paragraph 18 of the OPCF 44F, in order to succeed with her claim for coverage under the Excess Endorsement, Smith must exhaust the limits of the OPCF 44R of the Primary Auto Policy. Aviva specifically relies on subparagraphs 18(a)(ii) and 18(c) in support of this position. These provisions stipulate that before Smith is entitled to payment under the Excess Endorsement, “the applicable first loss insurance shall be exhausted before recourse is made to excess insurance.”

[27] Counsel for Smith submits that it is Aviva’s position that the $1,000,000 limit of the OPCF 44R must be paid in its entirety prior to any entitlement under the Excess Endorsement. This is not, however, the position of the insurer. Rather Aviva submits that some amount must be paid to bridge any coverage gap between the policy limits of the third-party motorist and those of the OPCF 44R endorsement. Stated differently, unless some amount is paid pursuant to the terms of the OPCF 44R of the Primary Auto Policy, the Excess Endorsement cannot be triggered. In this way, the definition of “inadequately insured motorist” under the Excess Endorsement and the requirement that the OPCF 44R limits be exhausted are married together for a coordinated entitlement criteria for the Excess Endorsement coverage.

(b) Smith

[28] Smith’s counsel submits that for purposes of a determination whether there is Excess Endorsement coverage, Aviva’s definition of an “inadequately insured motorist” as stipulated by the terms of the OPCF 44R of the Primary Auto Policy is too restrictive. According to counsel for Smith, Aviva’s position fails to account for the expansive definition of “family protection coverage in paragraph 1.4 of OPCF 44R. This definition not only includes the OPCF 44R additional coverage but “any similar indemnity provided under any other contract of insurance.” According to Smith, the definition therefore contemplates the coverage offered by the Excess Endorsement.

[29] While Smith’s counsel acknowledges that pursuant to paragraph 1.7 of the OPCF 44R endorsement the “limit of family protection coverage” is defined as “the amount set out in the Certificate of Automobile Insurance with respect to this change form” (admitted by the parties to be in the amount of $1,000.000) and otherwise does not refer to the Excess Endorsement limit, he submits the definition of the “limit of family protection coverage” should be interpreted to take into account the overall availability of the OPCF 44R family protection coverage and other contracts of insurance, including the Excess Endorsement.

[30] Smith’s counsel also argues that when considering coverage under the Excess Endorsement, the definitions of both “family protection coverage” and “limit of family protection coverage” must be read in conjunction with the provisions of the Excess Endorsement which describe the coverage as “additional” and “in excess of” the “Family Protection Coverage” on the Primary Auto Policy.

[31] Given all of these considerations, counsel for Smith submits that the only reasonable conclusion is that the OPCF 44R coverage is the underlying limit and the Excess Endorsement limit of $1,000,000 is the excess limit for a total combined overall family protection coverage limit of $2,000,000. With this total combined limit of $2,000,000, Smith’s counsel submits that Taylor would be deemed to be an “inadequately insured motorist” pursuant to paragraph 1.5 of the OPCF 44R provisions thereby triggering payment of the Excess Endorsement coverage limit of $1,000.000.

[32] Counsel to Smith also argues that there is no requirement for the limits of the Primary Auto Policy to be exhausted prior to recovery under the Excess Endorsement. The argument in support of the position focuses on Condition 12 of the Excess Endorsement. That condition provides in part that liability under the Excess Endorsement does not apply unless and until the insured’s underlying insurer is obligated to pay the available limits of the “Underlying Insurance”.

[33] Smith’s counsel submits that a reasonable interpretation of “available limits” is the amount of funds that the eligible claimant may resort to under the OPCF 44R coverage. Funds to which an eligible claimant cannot resort should not, according to plaintiff’s counsel, be taken into account in determining “available limits’ for purposes of Excess Endorsement Coverage. Therefore, where the available limit under the OPCF 44R coverage is zero, as in this case, the fact that no money is payable under the OPCF 44R Coverage should not operate as a barrier to the Excess Endorsement being paid.

Guiding Principles and Analysis

[34] The Court of Appeal’s decision in Kahlon at paragraph 37 clearly establishes that Smith, as the insured, has the burden of proving coverage under the Excess Endorsement:

[37] The burden of proof rests on the insured to establish a right to recover under the terms of the policy, and, once that is done, the onus shifts to the insurer to show that coverage is precluded: Progressive Homes, at para. 51; Shakur v. Pilot Insurance Co. (1990), 1990 6671 (ON CA), 74 O.R. (2d) 673, [1990] O.J. No. 1613, 1990 CarswellOnt 623, at para. 30.

[35] In Ledcor Construction Ltd. v. Northbridge Indemnity Insurance Co., 2016 SCC 37 at paragraph 49, the Supreme Court of Canada states that where the language of an insurance policy is unambiguous, this Court should give effect to the clear language reading the insurance contract as a whole:

[49] The parties agree that the governing principles of interpretation applicable to insurance policies are those summarized by Rothstein J. in Progressive Homes. The primary interpretive principle is that where the language of the insurance policy is unambiguous, effect should be given to that clear language, reading the contract as a whole: para. 22, citing Non-Marine Underwriters, Lloyd’s of London v. Scalera, 2000 SCC 24, [2000] 1 S.C.R. 551, at para. 71.

[36] In the event that ambiguity is found in the policy’s language, then the general rules of contract construction will apply (see Ledcor at para. 50). Only where the general rules of contract construction fail to resolve the ambiguity, will the Court apply the rule of contra proferentem (see Ledcor at para. 51).

[37] I am mindful of the Court of Appeal’s guidance in Kahlon that this Court should not strain to find ambiguity where none exists (at para. 42). I also accept the principle that the mere articulation of a differing interpretation does not always create ambiguity or result in the reasonableness of the interpretation.

[38] The Court of Appeal has also held that endorsements to automobile insurance policies are not to be interpreted independently form the underlying policy and may modify the terms of the underlying policy only where explicitly stated:

[21] In any event, in my view, an endorsement is generally not understood to be a self-contained policy. As I have noted, the title of the Endorsement describes it as a “change form”. An endorsement changes or varies or amends the underlying policy. While it may be comprehensive on the subject of the particular coverage provided in the endorsement, it is built on the foundation of the policy and does not have an independent existence. In any event, the Endorsement in this case is clearly not a stand-alone policy because it specifically provides that the policy terms remain in full force and effect, unless its terms are changed by the Endorsement. (see: Pilot Insurance Company v. Sutherland, 2007 ONCA 492, at para. 21).

[39] As a corollary to this principle of interpretation, it follows that where terms are not defined in the endorsement, they adopt their definitions from the underlying policy. In Kahlon, where the term “other insurance” was undefined in the underinsured motorist coverage endorsement, the Court of Appeal applied the definition of the term in the OAP1 where there was no clear language in the endorsement intending to modify its meaning:

[62] From another perspective, it could be said that the motion judge treated the endorsement as a standalone insurance policy essentially independent from the AllState policy. As this court noted in Pilot, at para. 21, it would be wrong in principle to treat the endorsement as though it were a standalone insurance policy. The governing principles oblige the court to give effect to the terms of the insurance contract read as a whole.

[72] As I see it, because the endorsement does not qualify the use of the term “other automobile”, the use of that term in the policy prevails, including the associated Special Conditions. The “Special Conditions” that excluded coverage for heavy commercial vehicles in s. 2.2.3 of the policy applies, and it deprives Mr. Kahlon of underinsured coverage under the AllState policy with respect to the accident. (Kahlon at paras. 62 and 72 respectively)

[40] Moreover, in determining the definition of “inadequately insured motorist” in the context of the Excess Endorsement, it is important to remember that an endorsement is of the same force and effect as if it were the standard policy, subject to the limits and coverage found in the certificate of insurance (see: Insurance Act, RSO 1990, c.1.8, s. 232(5.1)).

[41] Having considered all of the above principles and, in particular, interpreting the Excess Endorsement within the framework of the provisions of the OPCF 44R of the Primary Auto Policy as the underlying policy, and finding no language in the Excess Endorsement intending to modify the meaning of “inadequately insured motorist” to anything other than the definition found in the OPCF 44R, I have concluded that this undefined phrase in the Excess Endorsement has the same meaning as stipulated in the OPCF 44R. I am assured in reaching the conclusion that the undefined term, “inadequately insured motorist” in the Excess Endorsement should not be read any differently than its corresponding definition in the OPCF 44R by the provision in the Excess Endorsement that states its coverage “is subject to all the same terms, conditions, limitations and exclusions” of the Primary Auto Policy. Indeed, the very provision upon which Smith’s counsel relies to advance the position that the Excess Endorsement is “additional” and “in excess of” the “Family Protection Coverage” on the Primary Auto Policy states that the Excess Endorsement is “subject to all the same terms and conditions as the “Family Protection Coverage’ on the primary underlying motor vehicle liability policy…”.

[42] In these circumstances, I cannot think of any principled reason to expand the Excess Endorsement definition of “inadequately insured motorist” as counsel for Smith urges me to do. One cannot interpret a contractual term in the manner necessary to achieve a desired result. There must be a principled foundation for the interpretation; a ‘just’ result in the eyes of the interpreter cannot rationalize the reasonableness of the interpretation.

[43] I acknowledge that my finding that a shared definition of “inadequately insured motorist” for purposes of determining both OPCF 44R coverage and Excess Endorsement coverage may cause hardship. Indeed, my conclusion may result in Smith recovering only up to $1,000,000 in damages because she was injured by Taylor whose Wawanesa Policy provides $1,000,000 in liability insurance whereas she may have recovered up to $2,000,000 in damages if injured by a driver with less than $1,000,000 in liability insurance. However, in my view, the terms of the Excess Endorsement are unambiguous. I am also reminded by the direction of the Court of Appeal in Kahlon that it is not the role of this Court to create coverage that does not otherwise exist in the language of insurance policies, regardless of the detrimental impact on policyholders:

[79] The underinsured coverage is not available “on the explicit terms of the Policy and the Endorsement” despite the “very tragic consequences”: Pilot, per Lang J.A., at para. 39. This result could be described as harsh and unfair, as Laskin J.A. noted in Chilton, at paras. 21 and 39. However, courts have no authority to simply override contractual language in order to force the provision of coverage where none is contemplated by the existing language of tahe [sic] insurance policy and the endorsement, just because they might consider it good public policy to do so. This is the business of the provincial government, not the courts. (see: Kahlon at para. 79)

[44] Having reached the conclusion that for Smith to recover under the Excess Endorsement, she must be injured by an “inadequately insured motorist” as defined by the terms of the OPCF 44R and the parties’ agreement that Taylor does not meet this definition, it is not necessary for me to consider the submission of Smith’s counsel that the limits of the Primary Auto Policy need not be exhausted prior to recovery under the Excess Endorsement. Nonetheless, I have considered the position and reject it.

[45] Primary insurance and excess insurance are two different layers of coverage that respond to the same loss. The Court of Appeal in Trenton Cold Storage Ltd. v. St. Paul Fire and Marine Insurance Co., 2001 20561 (ON CA), described the difference and confirmed that the limits of the primary insurance must be exhausted before there is any requirement for the excess insurance to contribute to the loss.

[24] The distinction between primary and excess insurance is succinctly set out in St. Paul Mercury Insurance Company v. Lexington Insurance Company, 78 F. 3d. 202 (5th Cir. 1996) at footnote 23, quoting from Emscor Mfg., Inc. v. Alliance Ins. Group, 879 S.W. 2d 894 at 903 (Tex. App. 1994, writ denied):

Primary insurance coverage is insurance coverage whereby, under the terms of the policy, liability attaches immediately upon the happening of the occurrence that gives rise to the liability. An excess policy is one that provides that the insurer is liable for the excess above and beyond that which may be collected on primary insurance. In a situation where there are primary and excess insurance coverages, the limits of the primary insurance must be exhausted before the primary carrier has a right to require the excess carrier to contribute to a settlement. In such a situation, the various insurance companies are not covering the same risk; rather, they are covering separate and clearly defined layers of risk. The remote position of an excess carrier greatly reduces its chance of exposure to a loss. This reduced risk is generally reflected in the cost of the excess policy.

[46] Referring to the specific terms of the OPCF 44R, they provide that Smith must first exhaust the OPCF 44R limits in the Primary Auto Policy before a claim can be made on the Excess Endorsement (see for example, subparagraphs 18(a)(ii) and 18(c) quoted above). Policyholders must first exhaust the OPCF 44R limits because the Excess Endorsement does not increase the total OPCF 44R limits of the Primary Auto Policy; rather the Excess Endorsement simply creates a source of coverage once the policyholders exhaust the limits of the Primary Auto Policy or primary insurance. The Excess Endorsement clearly states that “in no event will this policy provide broader coverage than the Underlying Insurance”.

[47] Given the purpose of the Excess Endorsement, the express provision that the OPCF 44R limits in the Primary Auto Policy must be exhausted before a claim can be made for Excess endorsement coverage and the sanctioning of this term by the Court of Appeal, I cannot accept plaintiff’s counsel’s proposition that no money need be payable under Smith’s Primary Auto Policy to trigger recovery pursuant to the Excess Endorsement. In my opinion, plaintiff’s counsel’s explanation of the obligation to pay the “available limits” of the Primary Auto Policy as a condition to recovery under the Excess Endorsement is a tortuous and unreasonable interpretation of the term.

Disposition

[48] Therefore, for all of the above reasons, I am prepared to grant Aviva’s motion and dismiss Smith’s action as against it on the basis that the Primary Homeowner’s Policy issued to Schlimme does not provide coverage to the plaintiff arising from the August 18, 2017 motor vehicle accident.

Costs of the Motion

[49] I would encourage the parties to agree on the issue of costs. In the unfortunate event, however, that they are unable to agree, I am prepared to entertain written costs submissions. The party seeking costs is to deliver its costs submissions within fifteen days of receipt of these Reasons and the responding party will deliver its submissions within ten days thereafter. Any reply submissions are to be delivered within five days of receipt of the submissions from the responding party. Each party’s initial submission shall not exceed three double-spaced pages, exclusive of offers, costs outlines and authorities while the reply submission, if any, shall not exceed two double-spaced pages. All cost submissions shall be forwarded to my attention by way of email to my judicial assistant, Kelly Flanders, at Kelly.Flanders@ontario.ca with a copy to Kitchener.SCJJA@ontario.ca. If no submissions are received withing this timeframe, I will consider the issue of costs to have been settled by the parties.

M.J. Valente J

Released: December 8, 2022

COURT FILE NO.: CV-18-1160

DATE: 2022-12-08

ONTARIO

SUPERIOR COURT OF JUSTICE

Smith

Plaintiff / Responding Party

– and –

Taylor

Defendant

Aviva Canada Inc.

Defendant / Moving Party

ruling on motion

M.J. Valente J

Released: December 8, 2022