Shipman v. The Dominion of Canada General Insurance Company

Shipman v. The Dominion of Canada General Insurance Company

The Court held that s.265 of the Insurance Act, Regulation 676 and the Dominion policy must be read together and that the clear language of policy exclusion s.1.8.2 excludes coverage where the automobile was used or operated by a person in possession without the owner's consent; consequently the plaintiff is not covered under the Dominion policy and must resort to the Motor Vehicle Accident Claims Fund; appeal allowed and declaration dismissed.

Citation
C40625
Parties
Plaintiff (respondent): Brenda Shipman; Plaintiff (respondent): Nathanial Shipman (by Litigation Guardian Cheryl Stewart); Plaintiff (respondent): Leeann Shipman (by Litigation Guardian Cheryl Stewart); Defendant (appellant): The Dominion of Canada General Insurance Company; Intervenor (respondent): Llewellyn Alexander Greenbird
Court
Court of Appeal for Ontario
Jurisdiction
Canada
Judgment Date
14 October 2004
Procedural Posture
Civil (insurance/tort) / Appeal to Court of Appeal From Superior Court Motion Judge Order Dated September 10, 2003
Outcome
Appeal allowed; order below set aside; plaintiff's action for a declaration dismissed.
Legal Topics
Uninsured Automobile Coverage, Policy Exclusion (driving Without Consent), Motor Vehicle Accident Claims Fund, Statutory Accident Benefits, Regulation 676, Section 265 Insurance Act
Source Language
English
Insurance Law Tort Civil Procedure Uninsured Automobile Coverage Policy Exclusion (driving Without Consent) Motor Vehicle Accident Claims Fund Statutory Accident Benefits Regulation 676 +1 more

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Parties

Brenda Shipman

Plaintiff (respondent)

Nathanial Shipman (by Litigation Guardian Cheryl Stewart)

Plaintiff (respondent)

Leeann Shipman (by Litigation Guardian Cheryl Stewart)

Plaintiff (respondent)

The Dominion of Canada General Insurance Company

Defendant (appellant)

Llewellyn Alexander Greenbird

Intervenor (respondent)

Procedural Posture

Civil (insurance/tort) / Appeal to Court of Appeal From Superior Court Motion Judge Order Dated September 10, 2003

Legal Issues

  1. 1 Whether the policy exclusion s.1.8.2 excludes uninsured automobile coverage when vehicle is operated without owner's consent
  2. 2 Whether s.265 of the Insurance Act and Ontario Regulation 676 provide a complete code that precludes reliance on the policy exclusion
  3. 3 Whether the plaintiff is entitled to uninsured automobile coverage under the Dominion policy or must look to the Motor Vehicle Accident Claims Fund

Ratio Decidendi

The Court held that s.265 of the Insurance Act, Regulation 676 and the Dominion policy must be read together and that the clear language of policy exclusion s.1.8.2 excludes coverage where the automobile was used or operated by a person in possession without the owner's consent; consequently the plaintiff is not covered under the Dominion policy and must resort to the Motor Vehicle Accident Claims Fund; appeal allowed and declaration dismissed.

Court Disposition

Appeal allowed; order below set aside; plaintiff's action for a declaration dismissed.

Orders

  • Appeal allowed; order below set aside; plaintiff's action for a declaration dismissed.
  • Costs of the motion to the appellant payable by the Motor Vehicle Accident Claims Fund: $8,200.