





CITATION: Carnell v. Aviva Canada Inc., 2011 ONCA 313



DATE: 20110420



DOCKET: C53080



COURT OF APPEAL FOR ONTARIO



Winkler C.J.O, Lang and Karakatsanis JJ.A.



BETWEEN



Johan Carnell and Sandra Carnell



Applicants (Respondents)



and



Aviva Canada Inc. and Traders General Insurance Company



Respondents (Appellants)



Andrew Davidson, for the appellants



Bruce R. Jaeger, for the respondents



Heard: April 18, 2011



On appeal from the judgment of
          Justice Anne Mullins of the Superior Court of Justice, dated December 2,
          2010.



APPEAL BOOK ENDORSEMENT



[1]

We do not accept the appellants argument that the application judges
    single reference to the Statutory Conditions led to an error in her analysis. 
    The Statutory Conditions and the policy exclusion at issue were identically
    worded.  It was this identical wording that led the appellants to reference the
    cases decided under the Statutory Conditions.

[2]

The application judge was clearly alive to the issue she was required to
    determine.  In the first sentence of her reasons, she stated that the insured
    sought a declaration determinative of the Applicants claim  pursuant to the
    terms of an automobile insurance policy.

[3]

Later, the application judge correctly described the rule of
    interpretation that an insurance contract is  to be strictly and narrowly
    interpreted.  We do not accept this ground of appeal.

[4]

We also do not accept the argument that the interpretation reached by
    the application judge was not available to her on the undisputed facts.  The
    appellants particularly challenge the application judges conclusion that the
    respondent was not involved in a speed test and therefore was entitled to
    coverage under the policy.  The application judge had before her evidence of
    the purpose of the Driver Education Programme in which the respondent was
    engaged, including its objectives such as establishing proper steering wheel
    control, use of mirrors, proper braking and cornering techniques, as well as
    understanding basic vehicle dynamics and car control.  There was more than
    ample evidence for the application judges conclusion that the respondent was
    not engaged in a race or speed test, but in exercising his driving skills
    in an environment, which was, by design and intended purpose, such as to
    challenge his skills and the performance attributes of his vehicle.  The
    purpose and objectives set out in the manual clearly support the application
    judges conclusion.

[5]

The appeal is accordingly dismissed.  Costs to the respondents in the
    amount of $5,000, inclusive of disbursements and applicable taxes.


