Todd M. Wasserman

This appeal concerned the interpretation of an exclusion clause (s. 1.8.2) in the standard Ontario Automobile Policy regarding uninsured motorist coverage for passengers in a stolen vehicle.

The motion judge had ruled that the exclusion applied to the plaintiff passenger, Joshua Burnham, even if he did not know the vehicle was stolen, thereby shifting liability to the Motor Vehicle Accident Claims Fund.

The Court of Appeal reversed this decision, holding that the exclusion does not apply to innocent passengers in the insured vehicle, aligning with the policy's legislative history and purpose to expand coverage and reduce reliance on the Fund.

The Severance Plaintiffs brought a motion, supported by the O’Brien Plaintiffs and other defendants, to compel the Ministry of Transportation (HMK) to answer refusals and reattend examination for discovery in a highway negligence action.

HMK resisted, arguing it was not compellable for discovery under the Public Transportation and Highway Improvement Act (PTHIA) and that the questions were improper.

The court, following the precedent set by Longo v. The Queen and Stegenga v. Jans, found that HMK is not compellable for discovery in claims brought under the PTHIA, as the Act does not expressly provide for such rights.

The court also rejected the argument that HMK had attorned to the court's jurisdiction by voluntarily participating in discovery, noting that voluntary participation does not create a right to compel reattendance if no statutory right exists.

Consequently, the motion was dismissed.

The plaintiff was struck by an uninsured driver and sought coverage under the uninsured and underinsured provisions of an automobile insurance policy issued to his child's mother.

The insurer denied coverage, arguing the plaintiff did not meet the definition of 'spouse' as the couple had ceased living in a conjugal relationship.

The court applied a holistic approach to the definition of 'spouse' for parents of a child, finding that living under the same roof was not strictly required.

The court concluded that the parties had not formed a settled intention to end their relationship and were living in a conjugal relationship of some permanence at the time of the accident.

The plaintiff was found entitled to coverage under the policy.

The Severances, defendants by counterclaim, moved to strike a counterclaim brought by Her Majesty the Queen in Right of the Province of Ontario and Carillion Canada Inc. (HMQ) in the Subject Action.

HMQ's counterclaim sought contribution and indemnity for claims asserted against them in a separate Barrie Action, where the Severances were not parties.

The court found that HMQ's counterclaim was procedurally improper under Rule 21.01(1)(b) as it did not disclose a reasonable cause of action in the Subject Action, as such claims should be brought as third-party claims in the Barrie Action.

The motion to strike was granted without leave to amend, though HMQ was not prejudiced from seeking leave to add the Severances as third parties in the Barrie Action.

The Motor Vehicle Accident Claims Fund appealed a trial judgment in which it successfully sued an automobile insurer for restitution based on unjust enrichment.

The insurer had purported to terminate an automobile insurance policy for non-payment of premiums by sending notice only to the named insured (the vehicle owner's wife) rather than to the actual owner.

The policy remained in force when a catastrophic accident occurred.

The injured passenger obtained a judgment against the vehicle owner and assigned it to the fund, which paid the judgment and then sued the insurer for restitution.

The Court of Appeal upheld the trial judgment, finding that the notice of termination was ineffective because it was not sent to the actual owner as required by statutory condition 11(1) of Ontario Regulation 777/93, that the fund was not bound by the Insurance Act's limitation period because the Crown enjoyed immunity from the Act's provisions, and that the fund was entitled to bring a claim in unjust enrichment rather than being restricted to the statutory remedy under section 258 of the Insurance Act.