



COURT OF APPEAL FOR ONTARIO

CITATION:  Candito v. Nmezi, 2016 ONCA 293

DATE: 20160422

DOCKET: C61046

Hoy A.C.J.O., Blair and Roberts JJ.A.

BETWEEN

Marilena Candito

Plaintiff

and

Chinedu Nmezi, Paulette Rhoden and
Economical
    Insurance Group

Defendants (
Appellant
)

and

State Farm Mutual
    Automobile Insurance Company

Third Party (Respondent)

Karim N. Hirani and James B. Tausendfreund, for the
    appellant

Philip Pollack, for the respondent

Heard and released orally:  April 19, 2016

On appeal from the order of Justice Kelly P. Wright of
    the Superior Court of Justice, dated August 20, 2015.

ENDORSEMENT

[1]

This appeal arises out of a coverage dispute between insurers.

[2]

At issue was whether the defendant in an action that arose out of a
    motor vehicle accident had cancelled her automobile insurance policy with the
    respondent, State Farm Mutual Insurance Company, before the accident occurred.

[3]

Section 11(2) of
Statutory ConditionsAutomobile Insurance
, O.
    Reg. 777/93, a regulation under the
Insurance Act
, R.S.O. 1990, c. I-8,
    provides as follows:

This contract may be terminated by the insured at any time on
    request.

[4]

The motion judge concluded that the defendant had terminated her automobile
    policy with the respondent. While not convinced that s. 22(2) of the
Insurance
    Act
imposed an elevated onus on the respondent to prove that the
    cancellation was clear and unequivocal, the motion judge found that if there
    were such an elevated onus, the respondent had satisfied it. Accordingly, the
    plaintiff was entitled to uninsured motorist coverage under the plaintiffs
    policy with the appellant, Economical Insurance Group. The motion judge granted
    summary judgment in favour of the respondent and dismissed the appellants
    cross-motion for summary judgment.

[5]

On appeal, the appellant argues that: (1) the motion judge erred in
    concluding that there was no onus on the respondent to prove that the
    cancellation was clear and unequivocal; (2) the motion judge committed a
    legal error by relying on what it says is inadmissible hearsay evidence in the
    respondents evidence; (3) the motion judge erred by failing to draw an adverse
    inference against the respondent because it did not adduce affidavit evidence
    of the defendant confirming that she had cancelled the policy; and (4) the
    motion judges conclusion that she was fully satisfied that the policy was
    cancelled and not in effect on the date of the accident amounts to a palpable
    and overriding error.

[6]

In the circumstances, it is not necessary for us to address whether
    there is an elevated onus on an automobile insurer to prove that the insured
    has terminated the policy. As we have indicated, the motion judge found that even
    if there were an elevated onus, the respondent had met that onus. There is no
    basis for this court to interfere with that determination.

[7]

In making that determination, the motion judge relied on the evidence of
    an underwriter with the respondent, provided in substantial part in reliance on
    records of the respondent and its insurance agent. Those records show that
    before the accident occurred, the defendant requested that her policy be
    cancelled. The respondent sent the defendant a computer manually generated
    Acknowledgment of Cancellation Request, which indicated the effective date of
    cancellation, and a credit was given, reflecting the cancellation of the
    policy.

[8]

The appellant did not argue before the motion judge that the
    respondents evidence amounted to inadmissible hearsay. It is not appropriate
    for it to make this argument for the first time on appeal. In any event, to the
    extent that the respondents evidence amounted to hearsay, it was admissible
    via the business records exception.

[9]

The defendant at no time denied that she cancelled her insurance before
    the accident and the appellant adduced no evidence to suggest that the
    defendant was in fact insured by the respondent on the date of the accident.  On
    the record before her, the motion judge did not err in failing to draw an adverse
    inference against the respondent because it did not obtain an affidavit from
    the defendant. The motion judges conclusion that she was fully satisfied that
    the policy had been terminated and was not in effect on date of the accident is
    amply supported by the record.

[10]

This appeal is accordingly dismissed. The
    respondent shall be entitled to its costs of the appeal, fixed in the amount of
    $7,500, including disbursements and HST.

Alexandra
    Hoy A.C.J.O.

R.A.
    Blair J.A.

L.B.
    Roberts J.A.


