Fosker v. Thorpe [2004] O.J. No. 4187 Ontario Superior Court of Justice

The Plaintiff was struck by an automobile that she owned and insured after it was stolen by an uninsured thief. The Court held that because the vehicle was owned by the Plaintiff and she was insured under the Policy, it was not "an uninsured automobile" as defined in the policy or the legislation. For this reason the action against the Defendant Insurer was dismissed.

The Plaintiff was struck and injured by an automobile that she owned and insured. The policy, which included coverage for the Plaintiff should she be injured by an uninsured motorist or by an inadequately insured motorist, was issued by Liberty Insurance Company of Canada ("Liberty"). At the time she was struck, the automobile was operated by a thief who was uninsured. The Plaintiff therefore brought an action against her own insurer, Liberty.

Liberty brought a motion pursuant to Rule 21.01(1)(a) of the Rules of Civil Procedure for a determination of whether or not the Plaintiff’s vehicle was an uninsured automobile.

One issue was whether the vehicle was an uninsured automobile. Section 5.1.2 of the Standard Ontario Automobile Policy ("O.A.P. No. 1") defined an uninsured automobile as "one for which neither the owner nor driver has liability insurance to cover bodily injury… arising out of its…use or operation." Specifically excluded from this definition was "an automobile owned by or registered in the name of the insured person …".

The policy provided uninsured motorist coverage to the Plaintiff pursuant to s. 1.11 of the Ontario Policy Change Form 44-R-Family Protection Coverage Endorsement ("Family Protection Coverage Endorsement") which provides that an "uninsured automobile" does not include an automobile owned by or registered in the name of the insured or his or her spouse.

Section 265(2) of the Insurance Act, R.S.O. 1990, c. 1.8 defines "uninsured automobile" in terms that are virtually identical to s. 1.11 of the Family Protection Coverage Endorsement cited above. Counsel agreed that if the vehicle was an uninsured automobile under the Insurance Act, it was also an uninsured automobile under the Family Protection Coverage Endorsement and, as well, under OAP No. 1.

The Plaintiff argued that it would be an absurd result if she were to be excluded from coverage under the policy by a finding that the vehicle was not an uninsured automobile. She relied on a statement from Becke v. Smith (1836), 2 M & W 191 of 195 that the ordinary meaning of the words used in a statute should be adhered to unless this leads to any manifested absurdity or repugnance, in which case the language may be varied or modified.

J.W. Quinn, J. cited R. v. McIntosh, [1995] 1 S.C.R. 686 at page 704 that,

[W]here by use of clear and unequivocal language capable of only one meaning, anything is enacted by the legislature, it must be enforced however harsh or absurd or contrary to common sense the result may be … The fact that a provision gives rise to absurd results is not … sufficient to declare it ambiguous and then embark upon a broad-ranging interpretative analysis.

For this reason, neither absurdity nor repugnance is enough to declare a statutory provision invalid. There must first be ambiguity.

Quinn, J. found that in this case, the wording of s. 265(2) of the Insurance Act was clear and unambiguous as was s.5.1.2 of OAP No. 1 and s.1.11 of the Family Protection Endorsement. The Court held that because the vehicle was owned by the Plaintiff and she was insured under the Policy, it was not "an uninsured automobile" as defined in the policy or the legislation. The vehicle was specifically excluded from the definition. The wording in the definition may lead to a harsh or even an absurd result but that is insufficient to permit the Court to rewrite the legislation or the policy. The Court further pointed out that the motion was argued as a case of statutory interpretation, not contractual interpretation.

Another issue was whether the Plaintiff had recourse to her inadequately insured coverage. Section 3 of OAP No. 1 provides coverage where an insured is injured by an inadequately insured motorist. Section 1.5(a) of OAP No. 1 defines "inadequately insured motorist" as "an owner or 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". The Plaintiff argued that s. 1.5 applied because if the vehicle was not an uninsured motor vehicle and it is determined that no liability insurance is payable, then the total motor vehicle liability insurance is zero and is therefore less than the limit of Family Protection Coverage. In this case the driver of the vehicle would therefore be inadequately insured.

The Court found that s. 1.5(a) was not applicable because the words "less than the limit of Family Protection Coverage" presupposed some coverage for the owner or driver of the automobile and this was not the case here.

For these reasons, Quinn, J. concluded that the vehicle was not an "uninsured automobile" under s. 265(2) of the Insurance Act or s.5.5.2 of OAP No. 1, or s. 1.11 of the Family Protection Endorsement. The motion was therefore allowed and the action was dismissed against the insurer.

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