



COURT OF APPEAL FOR ONTARIO

CITATION: ResQ Auto Glass Inc. v. Co-operators General
    Insurance Company, 2016 ONCA 30

DATE: 20160114

DOCKET:
    C60144

Simmons, LaForme and Huscroft JJ.A.

BETWEEN

ResQ Auto Glass Inc.

Plaintiff (Appellant)

and

Co-operators General Insurance Company

Defendant (Respondent)

H. Richard Bennett and Joseph Figliomeni, for the
    appellant

Derek V. Abreu, for the respondent

Heard: December 7, 2015

On appeal from the order of Justice W. Low of the Superior
    Court of Justice, dated February 11, 2015.

By the
    Court:

[1]

ResQ Auto Glass Inc. appeals from a summary judgment
    dismissing its action against Co-operators General Insurance Company for breach
    of contract and intentional interference with economic interests and
    contractual relations.

[2]

In its statement of claim, ResQ claimed
    $208,359.57 on account of windshield repairs effected between February 2012 and
    July 2014 to 1,844 automobiles insured by Co-operators.

[3]

ResQ asserted that it had obtained assignments
    from the automobile owners of their right to receive direct payments for the repairs
    from their insurer by means of an assignment clause, written in fine print,
    contained at the bottom of a repair estimate signed by each insured. Although
    the repair estimate and assignment indicated the insured would pay $0 for the repair,
    ResQ claimed that Co-operators had agreed in a letter dated January 23, 2012 to
    pay ResQ for windshield repairs at the windshield industry market repair rate.
    ResQ asserted that rate was $100 per repair and that Co-operators breached its
    contract with ResQ to pay the market rate by paying only $50 per repair.

[4]

In addition, ResQ claimed that Co-operators was
    liable for the tort of intentional interference with economic interests. ResQ
    also claimed punitive damages.

[5]

The motion judge dismissed ResQs motion for
    summary judgment and granted Co-operators motion for dismissal of ResQs
    action.

[6]

The motion judge found that the windshield
    repairs at issue were completed under individual contracts between Co-operators
    and ResQ and that in each case, prior to the repair being undertaken,
    Co-operators offered to pay for the repair by issuing a repair authorization
    for $50. Further, she held that ResQ accepted the offer by completing the
    repair. In response to an argument that each insured had assigned their insurance
    contract or their right to receive the insurance proceeds, the motion judge
    held that the insurance contracts were not assignable. She found that, in any
    event, the insureds had nothing to assign because Co-operators had exercised
    its right under the insurance contracts to effect the repairs.

[7]

Concerning the January 23, 2012 letter, the
    motion judge held that the statement in the letter that Co-operators would pay a
    $40 total for windshield repairs up to and including 3 chips was definitive as
    to the Insurer's intentions. She said the later description of the rate as the
    windshield repair industry rate did not derogate from the specificity of the
    stated amount or the terms of the subsequent authorizations. She added parenthetically
    that the appellant had not demonstrated that the market rate for windshield
    repairs was $100.

[8]

ResQ raises several issues on appeal.

[9]

First, ResQ argues that the motion judge erred
    in failing to construe the transaction between ResQ and the insured as a valid
    assignment at law. We reject this argument.

[10]

The motion judges reasons reflect the following
    key findings:

·

the windshield repairs at issue were initiated through
    independent contractors who found cars with windshield chips, identified their
    owners, ascertained the owners insurers and placed calls to the insurers to
    facilitate authorization by the insurers to ResQ to do the repair;

·

on being contacted by ResQ, a Co-operators representative would
    ask to speak to the car owner and would verify that the owner was one of its
    insureds for the period of time when the chip or chips are said to have occurred;

·

Co-operators then issued a document to ResQ authorizing it to
    effect the repair at a stipulated price;

·

the practice was that in each case, ResQ obtained the authorization
    from Co-operators and subsequently obtained the owners signature on a form
    generated by ResQ titled Work Order Estimate. The Work Order Estimate showed
    the total cost to the car owner as $0;

·

there was no evidence that ResQ disclosed to the car owner the
    amount that it would invoice Co-operators for the repair;

·

the Work Order Estimate contained a section at the bottom printed
    in very small print that included the assignment language on which ResQ relies.
    The print on the sample document was so small the motion judge found it to be
    illegible and had to have it reproduced;

·

the contract between the car owner and ResQ allowed ResQ to
    repair the car owners windshield and bill Co-operators;

·

there was a separate contract between ResQ and Co-operators for
    each automobile that was the subject of a windshield repair. Co-operators made
    an offer by issuing an authorization. ResQ accepted the offer by effecting the
    repair;

·

Co-operators obligation under its insurance policies was either to
    indemnify its insured for what the insured paid to repair the damage to the
    insureds automobile or to repair the automobile  provided the insured had
    purchased the coverage and provided that reimbursement was not precluded by the
    deductible amount. In this case, on being approached by an insured and ResQ, Co-operators
    contracted directly with ResQ to effect windshield repairs for $50 regardless
    of whether it had an obligation under the insurance policy to do so. Vis-à-vis
    the insured, the Insurer was waiving the deductible where there was one;

·

in each instance, the car owner was made whole, the windshield
    was repaired and the car owner expended nothing. Vis-à-vis the insured, there
    was no breach of the policy; and

·

the assignment at the bottom of the Work Order Estimate does not
    assist ResQ because the insured has no right to be indemnified. Co-operators
    caused the repair to be made  the insured paid nothing and undertook no
    contractual obligation to pay anything for the repair. The insured therefore
    has no cause of action against the Insurer.

[11]

At their core, the motion judges findings
    establish that there was a contract for repair at a specified price between
    Co-operators and ResQ. The purported assignment of the right to receive
    proceeds of insurance was ineffective because, in the context of these
    particular transactions, the car owners had paid nothing, had no claim against
    Co-operators and therefore had nothing to assign.

[12]

During oral argument, ResQ asserted that the Co-operators
    repair authorizations arrived after the windshield repairs were completed and
    therefore did not form part of any contract. Moreover, the motion judges focus
    on the $0 specified in the Work Order Estimates was an irrelevant
    consideration. The amount to be paid under the assignments would be determined
    through the customary proof of claim/investigation process.

[13]

We cannot accept these arguments. As illustrated
    above, the motion judge made specific findings that Co-operators made an offer
    to repair each automobile at a specified price by means of its written
    authorization and that ResQ accepted each offer by completing the repair. ResQ
    did not challenge these findings of fact on appeal. Moreover, based on our
    review, the findings are fully supported by the record.

[14]

Second, ResQ argues that the motion judge erred
    in failing to consider: Co-operators duty to assess the cost of damage in each
    particular case; Co-operators deemed admission that the cost of damage was
    $100; and the doctrines of estoppel by convention and representation. In this
    regard, ResQ relies in part on numerous transactions prior to the January 23,
    2012 letter indicating Co-operators paid $100 to ResQ for windshield repairs
    essentially identical to the later repairs for which it paid only $50.

[15]

We do not accept this submission. Co-operators
    gave clear notice of its intention not to continue to pay $100 for windshield
    repairs in the January 23, 2012 letter. ResQ chose to continue to provide
    repair services to Co-operators insureds after receiving the letter and
    continued to act on repair authorizations received from Co-operators specifying
    a price of $50. ResQ was not obliged to do so. Moreover, the motion judge held
    there was an individual contract for each windshield repair at a specified
    price. We see no basis on which ResQ can now assert that Co-operators was bound
    by the terms of prior dealings in relation to new contracts or that
    Co-operators had any additional duties to its insureds.

[16]

Third, ResQ argues that the motion judge erred
    in failing to find the January 23, 2012 letter was an enforceable promise to
    pay ResQ the market rate for windshield repairs and in failing to draw an
    adverse inference against Co-operators concerning what the market rate was
    because of Co-operators refusal to disclose relevant information.

[17]

We reject this submission. The motion judge
    construed the effect of the January 23, 2012 letter as being notice to ResQ
    that Co-operators would no longer pay the amount it had been paying for
    windshield repairs and that, in future, it would pay $40 (later increased to
    $50). The statement about paying market rate for windshield repairs did not
    derogate from the specificity of this notice confirming what Co-operators was
    prepared to pay. We see no basis on which to interfere with the motion judges
    interpretation of the effect of the letter.

[18]

Fourth, ResQ argues that the motion judge erred
    in failing to address its claim in tort and in failing to find that Co-operators
    engaged in unlawful acts with the intention of causing harm to ResQ and that it
    did in fact cause harm to ResQ.

[19]

We do not accept this submission. ResQ failed to
    demonstrate that Co-operators engaged in any unlawful conduct vis-à-vis its
    insureds. In relation to each automobile, Co-operators arranged to have the
    automobile repaired and to pay the cost of the repair directly to the repairer,
    ResQ. In these circumstances, Co-operators breached no duties to its insureds.
    In fact, as the motion judge held, Co-operators waived its rights under its
    contracts with its insureds in an effort to deal efficiently with what were small
    damage claims. In effect, Co-operators provided its insureds with an indulgence.
    We fail to see how this can form the basis for a finding of unlawful conduct
    vis-à-vis Co-operators insureds.

[20]

ResQ also argued that Co-operators conduct
    amounted to discrimination against ResQ because Co-operators failed to pay
    ResQ what it was paying other service providers for what was essentially the
    same work. Further, the January 23, 2012 letter was a ruse to disguise
    Co-operators discriminatory conduct. Leaving aside the question whether ResQ
    proved its allegations, they do not establish a cause of action in any event.
    On the motion judges findings, Co-operators entered into individual contracts
    with ResQ at a price Co-operators quoted in each case. ResQ was free to accept
    or reject the price that was offered. ResQ failed to establish any basis for
    asserting Co-operators conduct in this regard was unlawful.

[21]

Finally, in the light of our findings as set out
    above, we see no error in the motion judges decision not to address the
    appellants claim for punitive damages.

[22]

Based on the foregoing reasons, the appeal is
    dismissed. Costs of the appeal are to the respondent on a partial indemnity
    scale, fixed in the amount of $17,500, inclusive of disbursements and
    applicable taxes.

Released:

GH                                                  Janet
    Simmons J.A.

JAN 14 2016                                    H.S.
    LaForme J.A.



Grant Huscroft J.A.



