



COURT OF APPEAL FOR ONTARIO

CITATION:
Merino v. Klue, 2013
    ONCA 114

DATE: 20130221

DOCKET: C54218

Blair, MacFarland and Rouleau JJ.A.

BETWEEN

Karla
    Garay Merino, Margarita Merino,
Adis
    Perez Charles, and Lou Ann Garay

Plaintiffs (Appellants)

and

Timothy
    J. Klue, also known as Tim Klue, also known as J-Timothy
    Klue and Asmahane Abou-Khalil, also
    known as Asmahane Aboukhalil and Allianz Insurance Company
    of Canada

Defendants (Respondents)

Dena Varah, for the appellants, Merino, Charles and
    Garay

Bruce R. Mitchell, for the respondent, Allianz Insurance
    Company of Canada

No one appearing for the
    respondents, Timothy J. Klue and Asmahane Abou-Khalil

Heard and released orally: February 11, 2013

On appeal from the judgment of Justice Scott K. Campbell
    of the Superior Court of Justice, dated July 28, 2011.

ENDORSEMENT

[1]

The appellants appeal the decision of Campbell J., wherein he concluded
    that a payment of $181,107 as a non-pecuniary benefit under the SAAQ (Société
    de LAssurance Automobile du Québec) was deductible from the uninsured limits
    available to the appellant under her mothers automobile policy of insurance.

[2]

The appellant Karla Merino was catastrophically injured in a motor
    vehicle accident in Windsor, Ontario on September 12, 2002, while she was a university
    student.  At the time, she was a pedestrian struck by an uninsured automobile. 
    Because she was a permanent resident of Quebec, she had available to her
    certain benefits under the SAAQ as well as the uninsured limits of her mothers
    policy of insurance of $200,000.  She was paid a total of $343,911.84 under the
    SAAQ and of that amount $181,107 was on account of non-pecuniary damage
    indemnity.

[3]

The appellants say that this amount should not be deducted from her
    entitlement to the $200,000 uninsured motorist limit and in this regard relies
    principally on subsection (7) of s. 267.8 of the
Insurance Act
which
    reads:

In an action for loss or damage from bodily injury or
    death arising directly or indirectly, from the use or operation of an
    automobile, the damages in respect of non-pecuniary loss to which a plaintiff
    is entitled shall not be reduced because of any payments or benefits that the
    plaintiff has received or is entitled to receive.

In the appellants view this provision of the Act is in
    conflict with and overrides the regulation relied on by the respondent.

[4]

The respondent argues that Regulation 2(1)(b) passed pursuant to s. 265
    of the
Insurance Act
, which deals with uninsured auto coverage, and
    reads:

2.(1)   The insurer shall not be liable to make any payment,

(b)   where
    a person insured under a contract is entitled to recover money under any valid
    policy of insurance other than money payable on death, except for the
    difference between such entitlement and the relevant minimum limits determined by
    the clause (a).

permits it to reduce the uninsured limit of $200,000
    by the amount paid to the appellant as non-pecuniary damage indemnity. In our
    view, this courts decision in
Kosanovic v. Wawanesa Mutual
(2004), 70 O.R. (3d) 161
is dispositive
    of the issue raised. Subsection 7 of s. 267.8 deals with the deductibility of
    collateral benefits from damage awards and provides that the damages in respect
    of non-pecuniary loss shall not be reduced because of any payments or benefits
    received.

[5]

Regulation 2(1)(b) deals with something different, namely the partys
    entitlement to the $200,000 uninsured limits available under the
Insurance
    Act
. U
nder that regulation payments received by an insured
    and not otherwise deducted, will reduce the maximum statutory entitlement
.
    The purpose of this section is to avoid double recovery by an injured plaintiff
    as here, where the appellants have already received some $181,107 as a non-pecuniary
    benefit payment. Hence, in our view, there is no conflict between the sections.

[6]

Unfortunate as this result is for the appellants, that is the legal result
    of the statutory scheme in place at the time.

[7]

The appellants did not resist the motion for fresh evidence but, in any
    event, in our view, it makes no difference.

[8]

The appeal is dismissed.  Costs to the respondent fixed in the amount of
    $10,000 all inclusive as agreed.

R. A. Blair
    J.A.

J.
    MacFarland J.A.

Paul S.
    Rouleau J.A.


