



COURT OF APPEAL FOR ONTARIO

CITATION:  Xu v. Mitsui Sumitomo Insurance Company Limited,

2014 ONCA 805

DATE: 20141117

DOCKET: C58764

Cronk, Gillese and Rouleau JJ.A.

BETWEEN

Jie
    (Jay) Xu, by his Litigation Guardian

Guoping
    (Annie) Huang,

Chao
    (Sarah) Xu, and Guoping (Annie) Huang, personally

Appellants

and

Mitsui
    Sumitomo Insurance Company Limited

and
    Chubb Insurance Company of Canada

Respondents

Alan A. Farrer and David F. MacDonald, for the
    appellants

Paul Tushinski and Eric J. Adams, for the respondents

Heard and released orally: November 12, 2014

On appeal from the order of Justice Thomas McEwen of the
    Superior Court of Justice, dated April 8, 2014.

ENDORSEMENT

[1]

This insurance-related appeal concerns two questions:

1)

whether a
    leasing companys insurer enjoys the protection of s. 267.12 of the
Insurance
    Act,
R.S.O. 1990, c. I.8, such that its liability for loss or damage from
    bodily injury or death arising directly or indirectly from the use or operation
    of a leased motor vehicle is limited to $1 million, less any amounts available
    under the lessees policy of insurance; and

2)

whether,
    in this case, the leasing company and owner of a car involved in a motor
    vehicle accident, together with the driver of the car, are insureds within
    the meaning of a standard SPF 7 excess insurance policy such that the excess
    policy responds to a claim against the driver as an unnamed insured.

[2]

With respect to the first question, the application judge concluded that
    s. 267.12 of the
Insurance Act
precludes a lessee from coverage under
    a lessors insurance policy beyond the qualified $1 million cap on liability
    set out in that section.  In other words, the liability of a lessor and its
    insurer is limited to a maximum of $1 million by reason of s. 267.12.

[3]

For the reasons expressed by the application judge, we agree.  This
    conclusion is dispositive of the appeal.  Accordingly, we do not reach the
    additional interpretive question raised by the appellants, described above.

[4]

The appeal is therefore dismissed.  The costs of the appeal are fixed in
    the agreed amount of $15,000, inclusive of disbursements and all applicable
    taxes.

E.A. Cronk J.A.

E.E. Gillese J.A.

Paul Rouleau J.A.


