Court File and Parties

COURT FILE NO.: CV-18-00000217-0000 DATE: 2024-11-05 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Tanner Vincent Matthew Whiteye, by his litigation Guardian, Sabrina Yolanda Whiteye, and Sabrina Yolanda Whiteye, Plaintiffs AND: Brayden Hopkins, R. Dean Altiman, Delaware Nation at Moraviantown Band Council, Intact Insurance Company and Economical Mutual Insurance Company, Respondents

BEFORE: Justice Bruce G. Thomas

COUNSEL: Alysia M. Christiane, Counsel, for the Plaintiffs Michael K. Coughlin, Counsel for the Defendant Delaware Janet Clermont, Counsel for Intact Insurance Company Dwain C. Burns, Counsel for Economical Mutual Insurance Company

HEARD: October 21, 2024

Endorsement

[1] The plaintiffs have brought a motion for summary judgment seeking a declaration that the defendant and third party, Economical Insurance, (“Economical”), held a valid and enforceable policy of insurance on a Chrysler 300 motor vehicle. That vehicle being owned by the defendant, R. Dean Altiman, (“Altiman”), and driven by Brayden Hopkins, (“Hopkins”), at the time of a motor vehicle accident on November 19, 2016.

[2] Economical brings a motion for a declaration pursuant to s. 233(1) of the Insurance Act that any claim regarding this accident is invalid and the right of recovery forfeited but for the statutory obligation set out in s. 258(11) of the Insurance Act.

[3] The defendant, Delaware Nation at Moraviantown Band Council, (“Delaware Nation”), supports the position of the plaintiffs but has not filed material in the motion. The defendant, Intact Insurance Company, (“Intact”), also supports the position of the plaintiffs but has not filed material on the motion. The plaintiff Sabrina Yolanda Whiteye is insured by Intact.

[4] The defendants Hopkins and Altiman have not defended the action and therefore did not appear or participate in the motions before the Court.

[5] All parties before me consent to my determination of the Economical coverage issues by way of summary judgment (r. 20.04(1)(b) of the Rules of Civil Procedure).

Background

[6] On November 19, 2016, Hopkins was operating the Chrysler 300 motor vehicle owned by his father Altiman. He was travelling from a hockey game in Dresden to Chatham and was proceeding on Centre Road on the Moravian First Nation Reserve. At that time, he struck three pedestrians walking southbound. The plaintiff, Tanner Whiteye, sustained catastrophic and permanent injuries. Bailey Jacobs, not a plaintiff in this action, was killed.

[7] It seems from the record before me that Hopkins had been insured on this vehicle for some period of time before he left for college, which he attended in Windsor and then Chatham. He left college in April or May, 2016 and was playing Junior C hockey with the Blenheim Blades. He was working intermittently at a tobacco facility on the Reserve. He continued to have all mail delivered to 14480 River Line Road in Thamesville, which is Altiman’s address. That address also appeared on his drivers licence.

[8] As it turns out, Hopkins’s drivers licence was suspended in July, 2016 as he was the holder of a G2 licence and had not progressed to a G licence in the time directed by Regulation.

[9] There is some evidence that Hopkins owned and/or operated a Nissan Altima that was irreparably damaged after a collision with a deer a number of weeks before the accident on November 19, 2016.

[10] It is also apparent from the record before me that Altiman delivered the Chrysler 300 to the residence of Hopkins’s grandmother a week or two before the accident with the intention of transferring the vehicle to Hopkins, as he no longer had a vehicle of his own. No steps had been taken regarding that proposed transfer.

Issues in Dispute

[11] Economical has denied coverage for this accident as Altiman failed to disclose to his insurer:

1. That Hopkins was a licenced G2 driver living in the same premises at the time this policy was renewed in September, 2016;
2. That Hopkins’s drivers licence was suspended at the time of the renewal;
3. That he gave Hopkins exclusive possession of the Chrysler 300 weeks before the accident, which constituted a material change in risk.

[12] It is the position of the plaintiffs that Hopkins was, at all material times, not residing with Altiman, but rather was staying with his grandmother who was ill, and that he only attended the Altiman residence occasionally. He used it as a home base for his mail and his address for government documents consistent with the practice of most college students.

[13] The plaintiffs maintain that when the vehicle was left with Hopkins in the weeks before the accident, it was not for his exclusive use, and in any event, pursuant to the terms of Ontario Automobile Policy (OAP1), he was well within the 14 days granted and constituting prompt notification of a change in risk.

[14] Finally, the plaintiffs argue that the suspension of the G2 licence never came to the attention of either Hopkins or Altiman and therefore cannot constitute a policy breach.

[15] The evidence in the record before me on these issues amounts to the statement by Hopkins to police hours after the accident, statements by Hopkins and Altiman approximately four months after the accident given to an Economical Insurance adjustor and their respective evidence at their examinations for discovery approximately 4 ½ years after the accident. Since they have not defended or participated in these motions, I have no further evidence or argument.

[16] The evidence I mention above is not consistent on the important issues of where Hopkins was residing in the time period after he left college and leading up to this accident. It is also not consistent on how frequently Hopkins drove the Chrysler 300 motor vehicle.

Conclusion

[17] I find that I cannot resolve the issues of credibility on the record before me. I have chosen not to dismiss the motions, but rather to direct what has been termed a “mini-trial” pursuant to r. 20.04(2.2) of the Rules of Civil Procedure.

[18] I am directing that the parties confer on the following:

1. Who should be the witnesses and who will call that evidence? How will they be compelled to attend?
2. What are the time limits to be imposed by me on examination-in-chief and cross-examination?
3. Who is entitled to participate in the questioning of the witnesses?
4. Who will prepare a document brief for the Court to assist in the mini-trial and what will it contain?
5. Such other issues as the parties find are important to this process.

[19] At such point in time as the parties have resolved these issues, they may contact the trial co-ordinator in Chatham to schedule a case conference before me to advise as to their agreement and to discuss dates for the evidence.

[20] Should the parties be unable to agree on the questions I raise above within 90 days of the release of these reasons so that in my view a mini-trial can be conducted, I will have no recourse but to dismiss the motions and direct that the action proceed to trial.

“Justice Bruce G. Thomas” Justice Bruce G. Thomas Date: November 5, 2024.