Court File and Parties
Court File Nos.: CV-22-1194, CV-22-1195, CV-22-1196, CV-22-1204, CV-22-1208, CV-22-1227, CV-23-2748, CV-24-31
Date: August 26, 2025
Ontario Superior Court of Justice
CV-22-1194
Between:
Laurie Marie Hugo, Kyle Marie Hugo, by her Litigation Guardian, Laurie Marie Hugo, David Pierre Hugo and Bryce David Hugo, by his Litigation Guardian, Laurie Marie Hugo
Plaintiffs
– and –
Petronella McNorgan, Gerald McNorgan and Co-Operators General Insurance Company
Defendants
CV-22-1195
Between:
Scarlett Emley, a minor by her Litigation Guardian Tiffany-Ann Stones, and Tiffany-Anne Stones
Plaintiffs
– and –
Petronella McNorgan, Gerald McNorgan and Co-Operators General Insurance Company
Defendants
CV-22-1196
Between:
Katherine Van Ginkel, James Robert Stemp, Jacob Stemp, by his Litigation Guardian, Katherine Van Ginkel, Margaret Van Ginkel and Jacob Van Ginkel
Plaintiffs
– and –
Petronella McNorgan, Gerald McNorgan and Scottish & York Insurance Co Limited
Defendants
CV-22-1204
Between:
Isabelle Belanger, a minor by her Litigation Guardian, Jody Belanger, Jody Belanger, Martin Belanger and Amelia Belanger a minor by her Litigation Guardian, Jody Belanger
Plaintiffs
– and –
Petronella McNorgan, Gerald McNorgan and Security National Insurance Company/TD Insurance Meloche Monnex
Defendants
CV-22-1208
Between:
Kelli Marie Norton and C.E.M. Norton, by their Litigation Guardian, Steven Norton
Plaintiffs
– and –
Petronella McNorgan, Gerald McNorgan and Pembridge Insurance Company
Defendants
CV-22-1227
Between:
Erica Leathorn, by her Litigation Guardian, Emma Leathorn, Emma Leathorn and Robert Adam Leathorn
Plaintiffs
– and –
Petronella McNorgan, Gerald McNorgan and TD Home and Auto Insurance Company
Defendants
CV-23-2748
Between:
Autumn Hatton-Gauthier, a minor, by her Litigation Guardian, Joanne Hatton, Joanne Hatton, John Gauthier and Farrah Krompass, a minor, by her Litigation Guardian, Joanne Hatton
Plaintiffs
– and –
Petronella McNorgan, Gerald McNorgan and Allstate Insurance Company
Defendants
CV-24-31
Between:
Kara Grace Louise Tonn, a minor, by her Litigation Guardian, Richard Michael Albert Tonn
Plaintiffs
– and –
Petronella McNorgan, Gerald McNorgan
Defendants
Counsel:
Gregory Willson for all Plaintiffs/Moving Parties
Brian Bangay for the Defendants McNorgans/Responding Parties
William Woodward for all OPCF 44R Insurer Defendants/Responding Parties
Heard: July 28, 2025
Reasons for Decision
Justice E. ten Cate
Introduction
[1] These actions arise out of a tragic motor vehicle accident on November 30, 2021, on Riverside Drive in London, Ontario. The Defendant, Petronella McNorgan, failed to stop at a red light. She drove through the intersection, up onto the curb, and struck several members of the London 120th Brownies. One child was killed, and several others injured.
[2] There are eight companion actions arising from the accident and a total of 25 plaintiffs. Some claims are direct, and some are derivative -- made by family members who commenced actions under s. 61 of the Family Law Act. No claims have been settled or adjudicated.
[3] All parties seek a determination of a question of law before trial pursuant to Rule 21.01(1)(a) of the Rules of Civil Procedure, as to whether the McNorgans were underinsured within the meaning of the OPCF 44R Family Protection Coverage endorsement. This requires the Court to determine whether the umbrella policy issued to them is a "motor vehicle liability policy".
[4] The answer to this question is vital to the parties for two reasons.
[5] First, it will determine whether the plaintiffs will share pro rata in the McNorgan's umbrella policy liability limit, resulting in an increase in the insurance limits available to the plaintiffs.
[6] Second, should I find in favour of the defendant insurers, the claims against them would be dismissed, and the actions would continue only against the McNorgans, resulting in streamlined claims for trial purposes.
[7] The matter proceeded via an agreed statement of facts.
[8] The plaintiffs were insured under various policies of automobile insurance issued by the insurer defendants. Those policies are in the form of the standard Ontario Automobile Policy (OAP 1) and included OPCF 44R Family Protection Coverage endorsements which provide for standard underinsured automobile coverage.
[9] The McNorgans were insured under an OAP 1 issued by Desjardins Insurance. Additionally, they were insured under a personal liability umbrella policy (PLUP), also issued by Desjardins. The PLUP is an excess liability policy, meaning it is only available once the first loss insurance limit is exhausted. It included a standard excess policy form (SPF 7) which provides excess third-party liability coverage beyond the limit of the automobile insurance. This endorsement was available to the McNorgans because they purchased underlying automobile insurance.
[10] In this case, it is agreed that the underlying limit of the automobile insurance is $300,000 and the PLUP is an additional $2 million such that the total available coverage for this accident is $2.3 million. No exclusions are relied upon by Desjardins to deny or limit coverage.
[11] In response to my request, I was advised that no undertaking was filed with the Chief Executive Officer of the Financial Services Regulatory Authority of Ontario in accordance with s. 226.1 of the Insurance Act in relation to the PLUP.
Analysis
[12] The defendant insurers take the position that although the PLUP is designed as an excess policy to an underlying automobile policy, it too is a motor vehicle liability policy because of the wording contained in the PLUP itself. Specifically:
(a) the Coverage section states:
The provision of Automobile Liability Insurance by this policy shall be strictly subject to the terms and conditions (including territory) of the standard excess automobile policy form […SPF 7 in Ontario].
(b) the Exclusions section excludes coverage for personal injury or property damage:
arising out of the ownership, use, maintenance, or operation of any automobile or motorized vehicle unless at the date of issuance of this policy, you had purchased a specific underlying insurance on the automobile or motorized vehicle and such insurance is described in the Coverage Summary page…
(c) further reference is made to provision of "automobile coverage" in the Conditions:
It is understood and agreed that if the automobile coverage afforded under this policy is more restrictive with respect to liability coverage arising out of the ownership, use or operation of any automobile than the standard insurance policy used in a Canadian province, this policy will be amended to conform to the liability coverage of the standard automobile insurance policy in use in the province where the accident occurs and will be construed as if such standard automobile policy was forming part of this policy.
(d) the Insuring Agreement provides coverage for liability arising from the use or operation of an automobile causing bodily injury or death:
Excess insurer agrees to indemnify the Insured under the first loss motor vehicle liability insurance against imposed by law upon the Insured for an amount or amounts in excess of the limit(s) of the first loss insurance and the underlying excess insurance for loss or damage arising from the ownership, use or operation of the automobile(s) covered under such first loss insurance and the underlying excess insurance resulting from Bodily Injury to or Death of any Person or Damage to Property.
(e) under the Amendments contained within the Territory Extension, a further acknowledgement is noted regarding the provision of automobile liability insurance under the policy.
[13] Additionally, they submit, although the PLUP refers to being issued pursuant to the SPF 7, it identifies the nature of the policy and the coverage as a motor vehicle liability policy.
[14] Section 1 of the Insurance Act defines a "motor vehicle liability policy":
"motor vehicle liability policy" means a policy or part of a policy evidencing a contract insuring,
(a) the owner or driver of an automobile, or
(b) a person who is not the owner or driver thereof where the automobile is being used or operated by that person's employee or agent or any other person on that person's behalf, against liability arising out of bodily injury to or the death of a person or loss or damage to property caused by an automobile or the use or operation thereof;
[15] "Owner's policy" is defined in s. 1 of the Insurance Act:
"owner's policy" means a motor vehicle liability policy insuring a person in respect of the ownership, use or operation of an automobile owned by that person and within the description or definition thereof in the policy and, if the contract so provides, in respect of the use or operation of any other automobile;
[16] Finally, the defendant insurers submit that the PLUP satisfies both definitions and that although the PLUP is designed as an excess policy to an underlying automobile policy, it remains a motor vehicle liability policy:
Other insurance
277 (1) Subject to section 255, insurance under a contract evidenced by a valid owner's policy of the kind mentioned in the definition of "owner's policy" in section 1 is, in respect of liability arising from or occurring in connection with the ownership, or directly or indirectly with the use or operation of an automobile owned by the insured named in the contract and within the description or definition thereof in the policy, a first loss insurance, and insurance attaching under any other valid motor vehicle liability policy is excess insurance only. R.S.O. 1990, c. I.8, s. 277 (1) .
[17] The plaintiffs take the position that the PLUP is neither an owner's policy nor a motor vehicle liability policy.
[18] The OPCF 44R, or Family Protection Coverage, is an optional endorsement contained in Ontario's automobile insurance legislation that provides additional coverage in the event of an accident with an underinsured or uninsured at-fault motorist. Its purpose is to allow plaintiffs to access their own third-party liability limits to cover losses if the at-fault motorist's insurance is insufficient or non-existent; it protects the policy holder, their spouse, and any dependent children.
[19] Section 3 of the OPCF 44R states that the insurer "shall indemnify" an eligible claimant for the amount that he or she is "legally entitled to recover from an inadequately insured motorist". For the plaintiffs to be indemnified, the court must first determine whether the at-fault motorist was inadequately insured.
[20] "Inadequately insured motorist" is defined at s. 1.5 of the OPCF 44R as the "identified owner or indemnified driver of an automobile for which the total motor vehicle liability insurance obtained by the owner or driver is less than the limit of family protection coverage".
[21] The defendant insurers submit that the use of the word "total" suggests that there may be more than one motor vehicle liability policy which provides motor vehicle liability insurance to respond to a claim and that this interpretation is confirmed in s. 1.5(A) which states that "the limit of motor vehicle liability insurance shall be deemed the aggregate of all limits of motor vehicle liability insurance".
[22] The limit of motor vehicle insurance is defined at s. 1.8 of the OPCF 44R as "the amount stated in the Certificate of Automobile Insurance as the limit of liability of the insurer with respect to liability claim, regardless of whether the limit is reduced by the payment of claims or otherwise".
[23] The amount of coverage available to the plaintiffs through their OPCF 44R is calculated in accordance with s. 4, which states:
The insurer's maximum liability under this change form, regardless of the number of eligible claimants or insured persons injured or killed or the number of automobiles insured under the Policy, is the amount by which the limit of family protection coverage exceeds the 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.
[24] In other words, if a defendant's limit of motor vehicle liability insurance is less than the limit of family protection coverage, then the defendant is an inadequately insured motorist, and a plaintiff is entitled to coverage under their own OPCF 44R. The plaintiff is entitled to the difference between the endorsement's limit and the limit on the at-fault motorist's policy. However, if the limit of the endorsement is less than the limit on the at-fault motorist's policy, the plaintiff will not be entitled to anything.
[25] Not all motorists carry umbrella policies, but the McNorgans did. In this case, to determine if there is coverage available to the plaintiffs under their respective OPCF 44R endorsements, I must determine whether the PLUP is included in the limit of motor vehicle liability insurance.
[26] The SPF 7 endorsement, contained in the PLUP, provides coverage for different types of claims -- not just motor vehicle claims. For instance, it can provide liability coverage for boating accidents or liability claims arising from home ownership. It is "excess" insurance, only available once the underlying insurance limits are exhausted, and contains a specific exclusion for automobile accidents unless underlying automobile insurance is purchased.
[27] The Court of Appeal in Heuvelman v. White examined the issue of whether a PLUP provides motor vehicle liability insurance such that it should be included in s. 4 of the OPCF 44R. Laskin J. found that the PLUP was not a motor vehicle liability policy pursuant to the OPCF 44R, stating:
Though it provides coverage for automobile accidents, a personal liability umbrella policy is not part of the standard Ontario Automobile policy and therefore no Certificate of Automobile Insurance is included in it. Accordingly, on a plain reading of s. 4 and s. 1.8 of the OPCF 44R, coverage under White's umbrella policy does not reduce the appellant insurer's obligation to Heuvelman under her Family Protection Endorsement.
[28] More recently, the Court of Appeal in Smith v. Taylor decided that the definition of "inadequately insured motorist" excludes any consideration of additional or excess coverage. Gillese J. stated,
The Excess Endorsement exists outside of the automotive insurance regulatory regime. It is not coverage that is, or can be, set out in the Certificate of Automobile Insurance. Thus, the additional coverage provided by the Excess Endorsement cannot fall within the 'limit of family protection coverage' in the OPCF 44R.
[29] However, in Avis Rent a Car System v. Certas Direct Insurance Company, Goudge J. of the Court of Appeal found that a commercial umbrella policy met the requirements of s. 277(1) as first loss insurance and that it was a "contract of automobile insurance" because it provided coverage for claims arising from bodily injury or property damage caused by an automobile. He further found that the umbrella policy was a "motor vehicle liability policy" under the Insurance Act and that it was also an "owner's policy". Importantly, he distinguished Heuvelman because the insurer for Avis filed an undertaking under s. 226.1 of the Insurance Act.
[30] Avis was followed in ING Insurance Co. of Canada v. Lombard General Insurance Co. of Canada, by Jennings J. who found that an umbrella policy subject to the SPF 7 constituted an owner's policy as defined by the Insurance Act; his decision was upheld by the Court of Appeal.
[31] Benson v. Walt dealt with a priority issue between insurers. In that case, the defendant was driving a vehicle with the consent of the owner. The driver had his own insurance (Economical), and the vehicle was insured under the owner's PLUP (State Farm). The Court of Appeal agreed with the motion judge that the owner's motor vehicle policy should respond first, then the driver's policy, and finally the PLUP. Sharpe J. stated:
While the State Farm PLUP would provide some coverage to the owner or operator of a motor vehicle in some circumstances, it is not, within the meaning of s. 277(1), an "owner's policy" of the kind mentioned in section 1 [of the Insurance Act]…
The State Farm PLUP does not, by its terms, provide primary insurance for liability arising from the use of an automobile. The State Farm PLUP… does not fall within what the court described… as Ontario's "highly regulated" scheme of motor vehicle insurance. It only responds after the limits of the underlying policy are exhausted, or if the underlying insurance does not provide coverage for the loss. Subsection 277(1) deals with the priorities as between primary motor vehicle insurance policies and its reach does not extend to any and every other type of policy that might have to respond once the policy limits of applicable motor vehicle policies are exhausted.
[32] In Benson, the Court distinguished Avis because the American insurer filed an undertaking pursuant to s. 226.1 of the Insurance Act agreeing to provide the minimum statutory coverage required by Ontario's automobile insurance scheme. The effect of the undertaking was to supercede the language of the policy and the coverage it provided, and to replace it with the mandated terms of the standard Ontario automobile policy. When it came to determining how the policy responded in relation to other policies, the wording of the umbrella policy did not govern -- the policy had to be treated as if it were an owner's policy within the meaning of the Ontario automobile insurance scheme.
[33] Here, unlike the American insurer in Avis, neither Desjardins, nor its underwriting company, Certas Home and Auto Insurance Company, filed the "Protected Defendant Undertaking" under s. 226.1 of the Insurance Act. The difference is important because it means that the McNorgans' insurer did not formally undertake to provide the Ontario minimum limits, uninsured automobile coverage, or statutory accident benefits to make the umbrella policy part of the regulated insurance scheme of Ontario.
[34] The defendant insurers argue that Heuvelman is distinguishable because in that case, the umbrella policy did not include the SPF 7 which had the same effect as the undertaking under s. 226.1 of the Insurance Act because the OAP 1 is incorporated by reference. They rely upon s. 253(1) of the Insurance Act which states:
Excess insurance
253 (1) Nothing in this Part precludes an insurer from providing insurance under a contract evidenced by a motor vehicle liability policy restricted to a limit in excess of that provided by another designated contract evidenced by a motor vehicle liability policy, whether the designated contract is a first loss insurance or an excess insurance.
They also rely upon ING v. Lombard and Avis in support of their position that where an excess or umbrella policy incorporates the provisions of the SPF 7, it is a "contract of automobile insurance", a "motor vehicle liability policy" and an "owner's policy" and as such forms part of the limits of motor vehicle insurance available to the McNorgans.
[35] The SPF 7 in this case provides in part: "…the Excess Insurer agrees to indemnify the Insured under the first loss motor vehicle liability insurance against liability imposed by law upon the Insured for an amount or amounts in excess of the limit(s) of the first loss insurance and the underlying excess insurance for loss or damage arising from the ownership, use or operation of the automobile(s) covered under such first loss insurance and the underlying excess insurance resulting from Bodily Injury to or Death of any Person or Damage to Property". This wording is the same as the wording of the SPF 7 in ING v. Lombard.
[36] The three-judge panel at the Court of Appeal in ING v. Lombard commented that even if the SPF 7 did not respond to the claim, the umbrella policy is an owner's policy and would still be required to respond in priority under s. 277(1) of the Insurance Act. In other words, the inclusion of the SPF 7 language did not change the nature of the umbrella insurance and was not material to the outcome.
[37] In my view, the SPF 7 language does not automatically transform the PLUP into an OAP 1 because the PLUP provides excess insurance, the same as in Heuvelman and Smith. The inclusion of the SPF 7 in a PLUP is not equivalent to an undertaking under s. 226.1 of the Insurance Act, a formal undertaking, filed with the Ontario government, to adhere to the all the necessary requirements of the Ontario automobile insurance scheme.
Conclusion
[38] Based on the above, I therefore determine the PLUP is not a motor vehicle liability policy within the meaning of s. 1 of the Insurance Act, nor s. 4 of the OPCF 44R. The limit of the McNorgans' motor vehicle liability insurance is therefore $300,000 and thus the McNorgans are inadequately insured motorists pursuant to s. 1.5 of the OPCF 44R.
[39] The question of entitlement is quite different from the amount to be paid under the OPCF 44R. Pursuant to s. 7 of the endorsement, the amount payable by an insurer to each eligible claimant is excess to "an amount received by the eligible claimant from any source …and is excess to amounts available from" nine enumerated sources, including "the insurers of the inadequately insured motorist, and from bonds, cash deposits or other financial guarantees given on behalf of the inadequately insured motorist". (Emphasis added).
[40] Here, it was agreed that the aggregate limit of $2.3 million is available to pay the claims. The analysis is like that in Tuffnail v. Meekes in which the Court of Appeal deducted the limits of the joint tortfeasor's policy (which was not a motor vehicle liability policy) to determine the amount payable by the OPCF 44R insurer.
[41] In my view, "any source" includes the PLUP, which means that the total amount to be divided pro rata amongst the plaintiffs is the aggregate limit of $2.3 million. The amount recoverable by each eligible claimant is therefore the difference between the shortfall of their damages, less their proportionate share of the aggregate limits, and the limit of their OPCF 44R policy.
Costs
[42] The plaintiffs seek total costs of $18,414.48. The comparable responding costs were $9,259.22 for a two-hour special appointment motion. In my view, a fair and reasonable amount for fees is $10,000 payable by the OPCF 44R defendant insurers to the plaintiffs.
Justice E. ten Cate
Released: August 26, 2025
Footnotes
[1] Family Law Act, R.S.O. 1990, c. F.3
[2] Rules of Civil Procedure, R.R.O. 1990, Reg. 194
[3] Gerald McNorgan owned the vehicle. He is deemed to be vicariously liable for damages caused by the negligent operation of his vehicle provided the driver, Petronella McNorgan, had consent to possess the vehicle, pursuant to s. 192(2) of the Highway Traffic Act, R.S.O. 1990, c. H.8.
[4] Insurance Act, R.S.O. 1990, c. I.8
[6] Heuvelman v. White, supra at paras. 6 and 7
[7] Smith v. Taylor, 2024 ONCA 223
[8] Smith v. Taylor, supra, at para. 37
[9] Avis Rent a Car System Inc. v. Certas Direct Insurance Company
[10] Insurance Act, supra
[12] Benson v. Walt, 2018 ONCA 172
[13] Benson v. Walt, supra, at paras. 12 and 13
[14] Benson v. Walt, supra, at para. 15
[16] Section 7(a) of the OPCF 44R