



COURT OF APPEAL FOR ONTARIO

CITATION: Conners v. D'Angelo, 2019 ONCA 905

DATE: 20191115

DOCKET: C66138

Strathy C.J.O., Doherty and Sharpe JJ.A.

BETWEEN

William Conners

Plaintiff

(Appellant/Responding
    Party)

and

Francesco DAngelo, Vincenza Tartaglia, a.k.a.
    Enza Tartaglia and
Gore Mutual Insurance Company

Defendants

(Respondent/Moving
    Party)

Aliza Karoly, for the appellant

Arthur R. Camporese, for the respondent

Heard: October 30, 2019

On appeal from the judgment of Justice Thomas R. Lederer
    of the Superior Court of Justice, dated September 26, 2018, with reasons
    reported at 2018 ONSC 5694.

Strathy C.J.O.:

[1]

The appellant sustained injuries in a motor vehicle accident. He was a
    passenger in a vehicle driven by an unlicensed driver, without the permission
    of the owner. He sued the driver of the vehicle, the owner of the vehicle, and
    the owners liability insurer. He claimed that he was an insured under the
    owners policy issued by the respondent, Gore Mutual Insurance Company, and was
    entitled to uninsured motorist coverage for damages under s. 265(1) of the
Insurance
    Act
, R.S.O. 1990, c. I.8.

[2]

On summary judgment, the motion judge dismissed the appellants claim
    against the insurer. He found that, pursuant to s. 1.8.2 of the standard Ontario
    Automobile Policy (OAP 1), the insurance contract excluded uninsured motorist
    coverage for the appellant because the automobile was operated without the
    owners consent.

[3]

Consequently, the appellants claim under the owners policy was limited
    to certain Statutory Accident Benefits (SABs). Any other claim would have to
    be made to the Motor Vehicle Accident Claims Fund.

[4]

The appellant challenges this conclusion on several grounds, none of
    which I find persuasive. In my view, the disposition of the appeal is governed
    by the decision of this court in
Shipman v. Dominion of Canada General
    Insurance Co.
(2004), 73 O.R. (3d) 144 (C.A.).

[5]

The appellant asserts that he qualifies as an insured under s. 224(1)
    of Part VI (Automobile Insurance) of the
Insurance Act
because, as an
    occupant of the vehicle, he was entitled to receive SABs under the owners
    policy.
[1]

[6]

Having qualified as an insured, the appellant asserts that he also qualifies
    as a person insured under the contract under s. 265(1) and is therefore entitled
    to uninsured motorist coverage. Section 265(1)(a) and (b) provides that:

Every contract evidenced
    by a motor vehicle liability policy shall provide for payment of all sums that,

(a)
a person insured under the contract
is legally entitled
    to recover from the owner or driver of an uninsured automobile or unidentified
    automobile as damages for bodily injuries resulting from an accident involving
    an automobile;

(b) any person is legally
    entitled to recover from the owner or driver of an uninsured automobile or
    unidentified automobile as damages for bodily injury to or the death of
a person insured under the contract
resulting from an
    accident involving an automobile. [Emphasis added.]

[7]

However, this provision is expressly,

subject
    to the terms, conditions, provisions, exclusions and limits as are prescribed
    by the regulations
. [Emphasis added.]

[8]

Thus, even if the appellant does qualify as a person insured under the
    contract, the coverage available can be modified or excluded by regulation.

[9]

One such regulation is R.R.O. 1990, Reg. 676, entitled
Uninsured
    Automobile Coverage
. It has a schedule setting out the terms, conditions,
    provisions, exclusions, and limits applicable to payments under s. 265(1) of
    the
Act
, which are to be attached to or included in every motor
    vehicle liability policy.

[10]

Section 10 of that Regulation, under the heading Application of General
    Provisions, provides:

In so far as applicable,
    the general provisions, definitions, exclusions and statutory conditions as
    contained in a motor vehicle liability policy also apply to payments under the
    contract under subsection 265(1) of the Act.

[11]

In other words, s. 10 provides that, in so far as applicable, an
    exclusion in a motor vehicle liability policy can limit coverage for claimants
    under s. 265(1) of the
Act
.

[12]

This takes me to the OAP 1. The OAP 1 is approved by the Superintendent
    of Financial Services and serves as the standard automobile policy for use by
    automobile owners in Ontario. Section 1.8.2 of the OAP 1, which was relied upon
    by the motion judge, provides:

Except for certain
    Accidents Benefits coverage, there is no coverage (including coverage for
    occupants) under this policy if the automobile is used or operated by a person
    in possession of the automobile without the owners consent or is driven by a
    person named as an excluded driver of the automobile.

[13]

In
Shipman
, this court considered the impact of s. 1.8.2 of the
    OAP 1 on entitlement to coverage under s. 265 of the
Act
. Goudge J.A.
    found that s. 265, Regulation 676, and s. 1.8.2 of the OAP 1 had to be read
    together to determine whether the plaintiff was entitled to coverage under the
    policy. Reading the provisions together, he held that the effect of s. 1.8.2 is
    to exclude coverage for damages for personal injury under the uninsured
    automobile coverage where the operator is in possession of the automobile
    without the owners consent. He also concluded that, based on its language, s.
    1.8.2 is applicable to both occupants of the vehicle and non-occupants. In the
    specific circumstances of that case, while it was agreed that the plaintiff  a
    pedestrian struck and injured by a motor vehicle  was entitled to statutory
    accident benefits under the relevant policy, she was found to be excluded from
    uninsured automobile coverage under s. 265. She was left to resort to the Motor
    Vehicle Accident Claims Fund for coverage.

[14]

Based on the reasoning in
Shipman
, coverage for the appellant
    in this case, an occupant of a vehicle driven without the owners consent, is
    plainly excluded (other than for certain SABs).

[15]

In an attempt to distinguish his case from
Shipman
, the
    appellant relies on two decisions of this court,
Taggart (Litigation
    Guardian of) v. Simmons
(2001), 52 O.R. (3d) 704 (C.A.), leave to appeal
    refused, [2001] S.C.C.A. No. 206, and
McArdle v. Bugler
, 2007 ONCA
    659, 87 O.R. (3d) 433. However, these decisions do not assist the appellant as neither
    involved the operation of a vehicle without consent of the owner and neither considered
    the effect of s. 1.8.2 of the OAP 1.

[16]

The appellant also submits that s. 1.8.2 conflicts with the
Act
and that the coverage provided by the
Act
can only be restricted by
    statute. I do not agree. A submission to substantially the same effect was
    rejected by this court in
Ortiz v. The Dominion of Canada General Insurance
    Co.
(2001), 52 O.R. (3d) 130 (C.A.), at paras. 10-14. There is no conflict
    with the
Act
. The
Act
, the regulation, and the OAP 1 operate
    in harmony.

[17]

For these reasons, I would dismiss the appeal.

[18]

The respondent seeks leave to cross-appeal the motion judges costs
    award of $15,000 for the summary judgment motion.

[19]

Costs awards are discretionary and the test for leave to appeal costs is
    appropriately stringent:
Colistro v. Tbaytel
, 2019 ONCA 197, 145 O.R.
    (3d) 538, at para. 65, leave to appeal refused, [2019] S.C.C.A. No. 173. The
    respondent has not identified strong grounds to find that the motion judge
    erred in exercising his discretion. The motion judge gave appropriate
    consideration to the principle of proportionality and to whether a portion of
    the costs claimed were necessary in the defence of the proceeding.

[20]

I would therefore dismiss the motion for leave to cross-appeal costs.

[21]

I would order costs of the appeal in favour of the respondent, fixed in
    the agreed amount of $7,500, inclusive of disbursements and applicable taxes.

Released: GS  NOV 15 2019

G.R. Strathy C.J.O.

I agree. Doherty J.A.

I agree. Robert J. Sharpe J.A.





[1]
Pursuant to s. 224(1), an insured includes every person who is entitled to
    statutory accident benefits under the contract whether or not described therein
    as an insured person.


