Released September 28, 2015 | Full Decision [OTLA Document Bank]
This was a summary judgment motion seeking to dismiss the action against the defendants, Economical Insurance Group and its subsidiary, Perth Insurance Company. On July 5, 209, the plaintiff, Dimitar Jeliazov was struck on his motorcycle by an unidentified motorist. He had taken possession of the motorcycle on June 29, and had not yet informed Perth of the purchase. He held insurance with Perth on his 2004 Land Rover. He also owned an allegedly unfit Lexus, which was not named under the policy.
Mr. Jeliazov maintained that the motorcycle was covered under his Land Rover policy, and that he was an “insured” under the unidentified coverage. Central to Mr. Jeliazov’s position was the assertion that his broker, the defendant Easyway Insurance Brokers, had assured him that the newly acquired motorcycle would be covered under the existing policy. In fact, Perth does not extend coverage to motorcycles.
Perth argued that there was no coverage based on the facts. As well, it claimed that Mr. Jeliazov’s refusal to give sufficient evidence regarding the operability of the Lexus meant that he had committed a serious and substantial breach of a fundamental term of his policy, and therefore was uninsured at the time of the collision.
Three issues were argued before Justice Firestone: was this was an appropriate case for summary judgment, was the motorcycle covered under the Perth policy, and was Mr. Jeliazov entitled to relief from forfeiture?
Ultimately, Justice Firestone found that the case was not appropriate for summary judgment, as the limited evidentiary record before the court did not provide the necessary evidence to make the findings of fact required to achieve a fair and justice adjudication of the dispute. He found that the case was likely to hinge of findings of credibility best left to a full hearing. He did not feel that a mini-trial conducted on the issues raised in the motion, isolated from the remaining issues at trial, was in the interest of justice.
Because he had made no findings about the evidence beyond noting that there was a genuine issue for trial, and in view of the intent of Hryniak, Justice Firestone exercised his discretion not to remained seized of the case