Bigley v. Sanders [2004] O.J. No. 1032 Ontario Superior Court of Justice
The Court, in dismissing a motion for summary judgment, was satisfied that the issue of whether the insured had an honest but mistaken belief of valid insurance was a genuine issue for trial.
The deceased, who was killed in a motor vehicle accident, did not have a valid policy of insurance on the vehicle he was driving at the time of the accident. The deceased’s dependants brought an action under the Family Law Act. The defendants brought a motion for summary judgment to dismiss the action.
The defendants argued that the action was barred by the provisions of s. 267.6 of the Insurance Act., R.S.O. 1990, c. I.8, because the deceased’s vehicle was not insured at the time of the accident.
The plaintiffs presented circumstantial evidence that the deceased had an honest but mistaken belief that the vehicle was validly insured. The deceased’s insurance broker had, from time to time, made mistakes in insurance coverage. Furthermore, two weeks before the accident, the deceased had met with his insurance broker.
The Court noted that under s. 267.6(2), the key to the court’s determination was whether there was a contravention of s. 2(1) of the Compulsory Automobile Insurance Act, R.S.O. 1990, c. C.25, and not whether there was lack of insurance per se. It is common ground that s.2(1) of the Compulsory Automobile Insurance Act is a strict liability offence. Once insurance status is proved by a prosecutor on a prima facie basis, the onus shifts to the accused to show either an honest but mistaken belief that there was valid insurance, or the exercise of due diligence.
The Court, in dismissing the motion for summary judgment, was satisfied that the issue of whether the deceased had an honest but mistaken belief of valid insurance was a genuine issue for trial.
