Full Decision
Defendant successful on motion for summary judgment where Plaintiff signed an Excluded Driver endorsement.
This decision arises after the Defendant brought a motion for summary judgment seeking the dismissal of the Plaintiff’s action as a result of a motor vehicle accident on August 7, 2013.
The Plaintiff’s vehicle was purchased only a few days before the accident. The day prior to the accident, the Plaintiff’s spouse called their broker to insure the new vehicle. The broker placed insurance with Wawanesa under policy number 7869512, the same policy which insured their previous vehicle. Due to the Plaintiff’s driving record, Wawanesa had originally issued policy number 7869512 to the Plaintiff and his spouse with an OPCF 28A Excluded Driver endorsement. This endorsement was signed by both the Plaintiff and his spouse on March 29, 2012 and excluded the Plaintiff. The endorsement the Plaintiff signed in 2012 stated that the exclusion applied to “ALL VEHICLES INSURED UNDER THIS WAWANESA CERTIFICATE”.
Following the accident, the Plaintiff applied for accident benefits. The benefits were denied except for the medical and rehabilitation expenses since Wawanesa deemed the Plaintiff “an excluded driver”. A Statement of Claim was also issued commencing a tort action.
On this summary judgment motion, the Defendant argued that s. 267.6 of the Insurance Act prohibited the Plaintiff from bringing a tort action because he was an uninsured driver and violated the Compulsory Automobile Insurance Act. The Defendant further argued that the Plaintiff knew or ought to have known that he was an excluded driver pursuant to policy number 7869512.
The Plaintiff argued that summary judgment should not to be granted because a finding of fact had to be made as to whether he had an honest but mistaken belief that he was an excluded driver on the new vehicle. He relied on the fact that the excluded endorsement had been signed by him some 16 months before the accident and he believed that he was excluded solely from operating the vehicle he and his spouse had at the time of signing the exclusion endorsement (and not the new vehicle). The Plaintiff also argued that at no time was he or his spouse notified or reminded that he continued to be an excluded driver of any other vehicle other than their previous vehicle.
The only issue on the motion was whether at the material time of the accident, the Plaintiff knew or ought to have known that he was an uninsured driver thereby precluding him from bringing a tort claim against the Defendant.
Justice Frate held that “the wording of the endorsement was clear and unambiguous and any reasonable person should understand its significance.” Accordingly, summary judgment was granted and the Plaintiff’s action was dismissed.
Trudeau v. Cavanagh, 2019 ONSC 2485
