



COURT OF APPEAL FOR ONTARIO

CITATION: Murphy v. Savoie, 2019 ONCA 784

DATE: 20191003

DOCKET: C66521

Lauwers, Fairburn and Zarnett
    JJ.A.

BETWEEN

Emeralda Burke Murphy
    and Colm Hogan

Plaintiffs (Respondents)

and

Benjamin
    Savoie, Almaz Nega, Toronto Police Services Board,

Officer John
    Doe, Officer John Doe and
Aviva Insurance Company of
    Canada

Defendants (
Appellant
)

Alan L. Rachlin, for the appellant
    Aviva Insurance Company of Canada

Stuart Zacharias, for the respondents

Heard: September 23, 2019

On appeal from the order of Justice E.M.
    Morgan of the Superior Court of Justice, dated January 8, 2019, with reasons
    reported at 2019 ONSC 121, 144 O.R. (3d) 299.

REASONS FOR DECISION

[1]

The appellant, Aviva Insurance Company of Canada,
    provided automobile insurance to Emblem Flowers that includes an OPCF 44R
    Family Protection Coverage endorsement.

[2]

Emblem Flowers employed the respondent, Colm
    Hogan, as a delivery van driver. Benjamin Savoie struck Mr. Hogans spouse, the
    appellant Emeralda Burke Murphy, on September 25, 2014 just before 9:30 a.m.
    Mr. Savoie was uninsured because he was driving a stolen car.

[3]

Aviva brought a motion under r. 21.01(1)(a) of
    the
Rules of Civil Procedure
,
R.R.O.
    1990, Reg. 194, for a determination as to whether the automobile insurance
    policy issued to Emblem Flowers provides uninsured coverage to Ms. Burke Murphy
    for her injuries in the accident. The motion judge held that the endorsement
    did cover her. Aviva appeals.

[4]

The motion judge noted, at para. 3, that Mr.
    Hogan was the companys sole delivery driver, and the company van was
    available to him for deliveries on a daily basis throughout the work day. He
    set the critical factual context at paras. 8-9:

On the day of the accident, Emblem Flowers
    opened for business as usual at 9:00 a.m. Mr. Hogan had a flexible schedule,
    although it was understood that he would regularly arrive at work by 9:30. Mr.
    Hogan was not required or expected to seek permission from anyone at Emblem
    Flowers during business hours to take the van's keys off the hook where they
    were stored or to drive the van in order to make the daily deliveries. He did
    so at his own discretion.

The precise time
    of Mr. Hogan's arrival at work on the morning of September 25, 2014 is not
    certain, although it was likely sometime around 9:30. Mr. Hogan's memory is
    that he was just arriving at work on his bicycle that morning when he received
    a phone call on his cell phone advising him that Ms. Murphy had been injured in
    an accident. As counsel for Aviva points out, the implication of that is that
    the accident actually occurred sometime just prior to Mr. Hogan arriving at
    work.

[5]

For Ms. Burke Murphy to be entitled to coverage,
    she must be an insured person under s. 1.6 of the endorsement, which provides:

(b)
if the named insured is a corporation
, an
    unincorporated association, partnership, sole proprietorship or other entity,
any
officer,
employee
or partner of the named insured
for whose regular
    use the described automobile is provided and his or her spouse
and any
    dependent relative of either,
while


(i)
    an occupant of the described automobile, a newly acquired automobile or a
    temporary substitute automobile as defined in the Policy;

(ii)
    an occupant of an automobile other than

(a)
    the automobile referred to in (i) above;

(b)
    an automobile leased by the named insured for a period in excess of 30 days; or

(c)
    an automobile owned by the named insured,

PROVIDED family protection
    coverage is in force in respect of the other automobile, or

(iii) not an occupant of an automobile, who
    is struck by an automobile;  [Emphasis added.]

[6]

Section 2 of the endorsement provides:

2. The definitions
    in section 1 apply
as of the time of the happening of an accident
for
    which indemnity is provided under this change form.
[Emphasis
    added].

[7]

Avivas counsel asserts that Ms. Burke Murphy
    would only be covered under the endorsement, properly construing s. 2, if Mr.
    Hogan was on duty at the very moment of the accident.

[8]

The motion judge disagreed. His reasoning is set
    out in paras. 14-16:

As was the case in
Old Republic
[
Intact Insurance Co. v Old Republic Insurance Co
.,
2016 CarswellOnt
    7645

(SCJ)]
, the Emblem Flowers van
    was available for Mr. Hogan's use at the time of the accident. Mr. Hogan
could
have arrived at 9:00 that day  i.e. the time that Emblem Flowers opened  and
    taken the keys and van and started his deliveries. While Mr. Hogan did not use
    the van for personal use, or sleep in it, or drive it outside of work hours, he
    had full, discretionary access to the van when the employer's shop was open for
    business. In this sense, the insured vehicle was being provided for his use at
    the time that Ms. Murphy was struck, even though he was not in it and was a few
    minutes away from work.

The agreed statement of facts indicates that
    the accident occurred just before 9:30 and that Emblem Flowers had been open
    since 9:00. The claimant in the
Old Republic
case
could
have
    slept in the van and started his deliveries first thing in the morning of the
    accident, even though he didn't; in much the same way, Mr. Hogan
could
have arrived at 9:00 when the shop opened and started his deliveries first
    thing in the morning of the accident, even though he didn't. The fact that Mr.
    Hogan did not arrive early does not negate the fact that the company vehicle
    was available for his use as of 9:00 and the accident happened at about 9:30.

I find that
    section 1.6(b) of the OPCF 44R form is a clause providing coverage for the
    injuries sustained by Ms. Murphy. Aviva is therefore required in the
    circumstances to cover the Plaintiffs under the Policy.

[9]

Avivas counsel advises that there is no
    jurisprudence regarding the interplay of s. 2 and s. 1.6 of the endorsement.
    This is a case of first impression. He submits that the court should be guided
    by the considerable jurisprudence construing s. 66 of O.Reg. 403/96 (
Statutory
    Accident Benefits Schedule  accidents on or after November 1, 1996
),
    because of the similar phrasing.

[10]

In particular, s. 66 of O.Reg. 403/96 provides:

66 (1) An individual who is living and
    ordinarily present in Ontario shall be deemed for the purpose of this
    Regulation to be the named insured under the policy insuring an automobile
at
    the time of an accident if
,
at the time of the accident
,

(a)
the insured automobile
is being made available for the
    individual's regular use by a corporation
, unincorporated association,
    partnership, sole proprietorship or other entity... [Emphasis added.]

[11]

Avivas counsel invokes the decision of Belobaba
    J. in
ACE INA Insurance v. Cooperators
, 71 C.C.L.I. (4th) 272 (Ont Sup
    Ct), at paras. 14-17 and 22. This was a priority dispute between two insurers
    as to which should pay statutory accident benefits to an injured person.

[12]

In the circumstances of this case, we would not accede
    to counsels argument as to the usefulness of the SABS jurisprudence. Its purpose
    is to provide rules to determine priority among insurers, but the purpose of
    the endorsement is to extend coverage to insureds. These are different
    purposes. These different purposes provide interpretive context.

[13]

More importantly, the language of the provisions
    is not similar. This court has said: One of the main objectives of the
    regulatory automobile insurance scheme in Ontario is consumer protection and
    guaranteed compensation of victims:
Royal & Sun Alliance Insurance Company
    of Canada v. Intact Insurance Company
, 2017 ONCA 381, 138 O.R. (3d) 539,

at para. 14.
This court has also recognized that
    automobile insurance policies are more than commercial contracts and form part
    of an integral social safety net:
Abarca v. Vargas
, 2015 ONCA 4, 123
    O.R. (3d) 561, at para. 37.
The extension of spousal protection in the
    endorsement has precisely this purpose.

[14]

As noted, Avivas counsel asserts that Ms. Burke
    Murphy would only be covered under the endorsement, properly construing s. 2,
    if Mr. Hogan was on duty at the very moment of the accident. Because Mr.
    Hogan had not yet arrived at work when the accident occurred, Ms. Burke Murphy
    is not covered. What counsel calls the temporal nexus must be that precise.

[15]

We disagree.

[16]

There is no doubt, as the motion judge noted at
    para. 14, that the van was available for Mr. Hogans regular use any time
    after the business opened. In our view, this is sufficient to decide the case. As
    we read the endorsement, s. 2 requires that at the time of the accident, the
    employee must be one 
for
    whose regular use the described automobile is provided. This is a sufficient
    temporal nexus.

[17]

We have difficulty accepting the notion that
    coverage under the endorsement would be available if Mr. Hogan had arrived
    earlier than his customary time, or that it would not be available if he had
    punctured a tire on his bicycle and had been especially late for work. It is
    possible to imagine other reasonable hypotheticals that would lead to odd
    results if Avivas argument were correct.
If the facts fit, as they do in this case, then the
    employees spouse is covered.
Or, to put it the other
    way, no words in the endorsement compel the denial of coverage on the facts of this
    case.

[18]

The appeal is dismissed with costs payable by
    the appellant to the respondent in the agreed amount of $4,500, all-inclusive.

P.
    Lauwers J.A.

Fairburn
    J.A.

B.
    Zarnett J.A.


