William Aaron G. Oakland - v. -, 2011 SKPC 64

IN THE PROVINCIAL COURT OF SASKATCHEWAN CIVIL DIVISION Citation: 2011 SKPC 064 Date: April 29, 2011 File: 248/10 Location: Regina _____________________________________________________________________________ Between: William Aaron G. Oakland - and - Saskatchewan Government Insurance Katherine Roy For the Plaintiff Steven Haichert For the Defendant _____________________________________________________________________________ JUDGMENT D.

BOGDASAVICH , J _____________________________________________________________________________ Overview of the Case [ 1 ] The plaintiff was involved in a single vehicle accident on September 30, 2009, while travelling from Edson, Alberta to Kelowna, British Columbia, when he struck an elk with his truck near Jasper, Alberta.

[ 2 ] The defendant insurer has refused to pay the repair costs to the plaintiff’s truck on the basis that the plaintiff knowingly misrepresented facts required to be stated in his application for an owner’s certificate when he applied to continue his plate registration on August 4, 2009.

The defendant relies upon various provisions of The Automobile Accident Insurance Act to deny the claim , including subsection 78(1) (b), which provides, in part, as follows: “...where an applicant for an owner’s certificate ... knowingly misrepresents ... in the application a fact required to be stated therein ... any claim by or in respect of the applicant or the insured shall be rendered invalid and his right ... to benefits and insurance money shall be forfeited”. Evidence [ 3 ] The plaintiff was born on June 29, 1985, in Vernon, British Columbia, and grew up in Kelowna.

He testified that he moved to Eyebrow, Saskatchewan, in July 2007, to live with his grandmother. In early 2009 his grandmother purchased a house for him in Eyebrow at 110 Railway Street. [ 4 ] The plaintiff testified that he has been employed with an oil drilling company since 2006 mainly in Edson, Alberta, although he has also worked for that company in British Columbia. After moving to live with his grandmother he regularly travelled back and forth between Eyebrow, Saskatchewan and Edson, Alberta, depending upon his work schedule. [ 5 ] He considered himself a resident of Saskatchewan.

In 2008 he obtained a Saskatchewan driver’s licence and on August 8, 2008, he obtained Saskatchewan plates for his 2008 Dodge truck, which is the subject of this lawsuit. He also obtained a Saskatchewan Health card (Exhibit P-1, Tab 1).

He filed bank statements showing his address as Eyebrow, Saskatchewan (Exhibit P-1, Tab 5), a water bill from the Town of Eyebrow (Exhibit P-1, Tab 7), and other documents showing his address in Eyebrow. [ 6 ] The plaintiff testified that for the 2007 tax year he claimed residency in British Columbia but that with respect to both his 2008 and 2009 Tax Returns, he claimed residency in Saskatchewan (Exhibit P-1, Tabs 8 & 9).

In cross-examination he admitted that he did not file his 2008 Tax Return until October 16, 2009, some six weeks after his accident (Exhibit D- 9). [ 7 ] In January 2010, the plaintiff sold his house in Eyebrow, Saskatchewan, to his grandmother. Shortly after that date he moved to Alberta so he could be closer to work. [ 8 ] The plaintiff testified that he did not always take his truck to Alberta when he was working or vacationing either there or in British Columbia. Sometimes he travelled by airplane or by bus. [ 9 ] In cross-examination the plaintiff’s driving record was entered in evidence (Exhibit D-2).

It discloses that the plaintiff was convicted of driving with over “80 mg Alcohol” on January 30, 2007. He was also convicted of driving while suspended on February 13, 2007. Over the years he has been convicted of three speeding charges and one other matter. [ 10 ] Jill Hohner, the owner of the general store in Eyebrow, Saskatchewan, testified by telephone on behalf of the plaintiff.

She stated that for the first three months after the plaintiff moved to Eyebrow in 2007, she frequently saw him but that in 2008 and 2009, she “rarely saw him”. [ 11 ] Bonnie Smith, the postmaster in Eyebrow, also testified by telephone on behalf of the plaintiff. She stated that the plaintiff opened a post office box on July 31, 2008, and that she saw him collect his mail once or twice a month. She also saw him around town and in the local restaurant. In cross-examination she could not give specific dates that she recalled seeing Mr.

Oakland in 2008 or 2009, but saw him “every once in a while”. [ 12 ] Pat Aitken also testified on behalf of the plaintiff by telephone. She stated that she was a friend of the plaintiff’s grandmother. She lives about three blocks east from the home purchased by the plaintiff’s grandmother for him. She testified she saw

him or his truck in town and occasionally saw him in the restaurant. [13] The final witness testifying on behalf of the plaintiff was his brother Bobby Oakland. He testified he moved to Eyebrow,Saskatchewan, in March 2009 and shortly thereafter found a job as a painter. He testified that the plaintiff would be home for one weeka month and sometimes two weeks a month during his rest breaks. [14] The defendant called one witness. Mr. Bruce Kush stated that he is an employee of SGI and holds the position of Manager ofVehicle Registration.

He testified that someone moving to Saskatchewan must register any vehicle owned by them after 90 days ofresidency in the province. He reviewed the evidence SGI considers when determining a person’s residency and also stated that Albertaresidents frequently apply to register vehicles in Saskatchewan. [15] Mr. Kush testified that because the plaintiff had been convicted of impaired driving in Alberta in 2007, his insurancepremiums in 2008 in Alberta for a vehicle similar to the truck he registered in Saskatchewan would be $10,367.00.

As the premiumsrose somewhat in 2009, the plaintiff would have had to pay premiums of $11,407.00. Evidence introduced by the plaintiff showed hisactual premiums for his truck in Alberta in 2010 were approximately $60.00 a month more than his premiums in Saskatchewan for 2009(Exhibit P-1, Tabs 4 & 21). Mr. Kush further stated that the question on the application for an owner’s certificate respecting whether thevehicle being registered will “be used primarily in Saskatchewan” is an important one.

If the vehicle is used outside Saskatchewan itcould be subject to tort liability claims and if used in large population areas it is more likely to be in an accident. Legal issue [16] As noted above in paragraph 2, the defendant raised a number of statutory defences in its Dispute Note. The legal issuehowever, is whether the plaintiff “knowingly misrepresented”: (1) that the vehicle would be used primarily in Saskatchewan during theregistration term; and (2) that the primary operator of the vehicle was a resident of Saskatchewan.

Analysis [17] The legal burden of proving that the plaintiff knowingly misrepresented facts in his application for an owner’s certificate onAugust 4, 2009 (Exhibit D-1), rests with the defendant, Saskatchewan Government Insurance. [18] The application form asked the following two questions: 2) Will the vehicle being registered be used primarily in Saskatchewan during the registration term? 3) Is the primary operator of the vehicle a resident of Saskatchewan? The plaintiff answered “yes” to both these questions and then signed the application form as he was required to do.

Above his signatureon the application is the following statement: “I am eligible to make this application and the information shown on this application istrue and correct” (Exhibit D-1). [19] The word “resident” is not defined in The Automobile Accident Insurance Act or in any other relevant legislation. In Neifer v.Saskatchewan Government Insurance (1983), (SK KB), 22 Sask. R. 246, Mr. Justice MacLeod of the SaskatchewanCourt of Queen’s Bench stated: A review of the cases leads to a conclusion that what amounts to “being resident” or “not being resident” in any place depends on the facts of the case.

Halsbury’s Laws of England, (3rd Ed.) vol. 20, p. 392. Numerous cases are cited in Words and Phrases Legally Defined, (2nd Ed.), p. 318 et seq., and Stroud’s Judicial Dictionary, ... (paragraph 29)

More recently the issue of residence was considered by Mr. Justice Barclay of the Saskatchewan Court of Queen’s Bench in Prevost v.SGI (2002), 2002 SKQB 347 , 222 Sask. R. 310. It is clear from the case law that the issue of residence is dependant on thefacts of each case. [20] Counsel for the defendant submitted in argument a calendar record for 2008 and 2009 which cross-referenced the plaintiff’semployment records, credit card records, debit card banking records, and cell phone records.

That calendar indicated that fromSeptember 1, 2008, until the date of the plaintiff’s accident September 30, 2009, the plaintiff was only present in Saskatchewan for oneor perhaps two days in September 2008, two or three days in November 2008, two days in April 2009, and a few days at the beginning ofAugust 2009.

While the records for May 2009 were incomplete the plaintiff did testify that he was taking a course in Kelowna, B.C. formuch of that month. [21] I find as a fact, based on a review of the plaintiff’s employment records (Exhibit P-1, Tab 16), the plaintiff’s cell phonerecords (Exhibit D-6), the plaintiff’s debit card bank records (Exhibit D-7), and the plaintiff’s credit card records (Exhibit D-8), that theplaintiff lived outside the Province of Saskatchewan for all but one or two weeks during the 11 month period from September 1, 2008,until August 4, 2009, and therefore was not a resident of Saskatchewan as of August 4, 2009. [22] The fact of owning a house in Saskatchewan, having a Saskatchewan Health card, and filing a tax return in Saskatchewan isnot sufficient to make one a “resident” of Saskatchewan within the context that that term is used in the owner’s certificate applicationform.

A person must be physically present in the province for significant periods of time before “residency” can truthfully be claimed. Ifind that at the time the plaintiff applied for the owner’s certificate for his truck on August 4, 2009, he was not a resident of the Provinceof Saskatchewan. His mailing address at 110 Railway Street, Eyebrow, Saskatchewan, was nothing more than a mail drop as of August4, 2009.

To reiterate, the fact that the plaintiff spent one or two weeks during the 11 month period from September 1, 2008 until August4, 2009, in Eyebrow, Saskatchewan, was not sufficient to make him a resident of Saskatchewan. [23] Even if I am wrong in my conclusion that the plaintiff was not a resident of Saskatchewan as of August 4, 2009, I am satisfiedthat the truck was not going to “be used primarily in Saskatchewan during the registration term”. I do not accept the plaintiff’s evidencethat he often took either a bus or an airplane from Saskatchewan to his work site at Edson, Alberta.

No corroborating evidence such asreceipts for bus or flight tickets were submitted to the Court and there are numerous Visa card charges and debit card bank recordsindicating purchases at Husky, Mohawk, Esso and other gas stations in Edson, Alberta as well as several payments to “Cochrane Dodge”.While some of these purchases may have been for personal items, I would draw an inference that many of the purchases were related tohis truck. These same records show that the plaintiff was constantly moving from location to location in Alberta and sometimes intoBritish Columbia.

I am satisfied that these “movements” were in his truck. [24] Did the plaintiff “knowingly misrepresent” in his application the fact that he was a “resident” of Saskatchewan and that thetruck would be “used primarily in Saskatchewan during the registration term”? [25] In Mattei v. Saskatchewan Government Insurance (1990), (SK KB), 85 Sask. R. 225, Mr. Justice Maloneof the Saskatchewan Court of Queen’s Bench was considering the issue of whether the plaintiff in that case had made a “knowingmisrepresentation” to the defendant with respect to his application for “farm plates”.

The plaintiff maintained that he did not “knowinglymisrepresent” his occupation as a farmer as he “considered himself to be a farmer”. Mr. Justice Malone did not accept the plaintiff’sevidence in that regard. He stated the plaintiff had “misled the defendant by completing the form in the manner that he did. There canbe no question that upon the applications for renewal he further misled the defendant by indicating his primary occupation was that offarming when he knew that was not the case”. [26] In Sleigh v. Stevenson, [1943] O.J.

No. 201, the Ontario Court of Appeal was considering an automobile insurance claim.

Section 191 of The Insurance Act of Ontario provided that when an applicant “knowingly misrepresents” any fact required to be stated inthe application, any claim by the insured shall be rendered invalid. This provision is very similar to subsection 78(1)(

b) of TheAutomobile Accident Insurance Act of Saskatchewan. In delivering the judgment Kellock J.A. stated: “I think ‘knowingly’ in the statuteis used in the sense that the applicant is in possession of information that what is in fact stated in the application is untrue or does notdisclose the truth”.

[ 27 ] In McKeand v. Saskatchewan Government Insurance (5 February 2008), Prince Albert 06-1116 (Sask. Prov. Ct.), Ferris J. was also considering subsection 78(1) (

b) of The Automobile Accident Insurance Act . The applicant for an owner’s certificate for a vehicle was asked the same question as Mr. Oakland, namely, would the vehicle be “used primarily in Saskatchewan during the registration term”. The applicant answered “yes” to that question when she knew the vehicle would be driven primarily by her son who was working in Alberta. While he did come “home” to Saskatchewan from time to time the vehicle was primarily driven in Alberta where the son worked.

Ferris J. found that the answer to the question “knowingly” misrepresented a fact required to be stated in the application and therefore the plaintiff’s insurance claim against the defendant was rendered invalid. [ 28 ] On a review of all the facts I am satisfied that the plaintiff knowingly misrepresented that he was a resident of Saskatchewan and that his truck would be used primarily in Saskatchewan during the registration period. He knew his answers to both questions were false. As a result, pursuant to subsection 78(1) (

b) of The Automobile Accident Insurance Act his insurance claim is rendered invalid and he is not entitled to any insurance monies from the defendant. Conclusion [ 29 ] The plaintiff’s claim is dismissed. D. Bogdasavich, J