r v. New, 2010 ONCA 292

Lombard Canada Ltd. v. Zurich Insurance Company [Indexed as: Lombard Canada Ltd. v. Zurich Insurance Co.] 101 O.R. (3d) 371 2010 ONCA 292 Court of Appeal for Ontario, Cronk, Lang and Juriansz JJ.A. April 22, 2010 Insurance -- Automobile insurance -- Fleet insurance -- Insurer denying coverage for particular leased car because insured did not identify that car in its monthly fleet report -- Insured only required to include number of leased cars in its fleet in its monthly report and not particulars of each vehicle. N was involved in a motor vehicle accident while driving a rented Honda Civic.

She was sued by the injured parties. The cars in the lessor's fleet were insured by Zurich pursuant to a fleet insurance endorsement. Zurich denied a duty to defend and indemnify N on the basis that the lessor did not have coverage for the Honda Civic because it did not identify it in its monthly fleet report. Lombard, the insurer which would be liable if there was no coverage under the Zurich policy, brought an application pursuant to rule 14.05(3) (

d) and (

g) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 for a declaration that the Zurich policy provided coverage. The application was dismissed. Lombard appealed. Held, the appeal should be allowed. On a proper

interpretation of the policy and the fleet endorsement, the lessor was required to include the number of leased vehicles in its fleet, rather than the particulars of the vehicles, in its monthly reports. APPEAL from the order of Herman J., [2009] O.J. No. 3004, 75 C.C.L.I. (4th) 248 (S.C.J.) dismissing an application for a declaration with respect to insurance coverage. Cases referred to Consolidated Bathurst Export Ltd. v. Mutual Boiler & Machinery Insurance Co., 1979 CanLII 10 (SCC) , [1980] 1 S.C.R. 888, [1979] S.C.J. No. 133, 112 D.L.R. (3d) 49, 32 N.R. 488, [1980] I.L.R.

Â1-1176 at 595, 1 A.C.W.S. (2d) 169, apld Other cases referred to Canadian National Railway Co. v. Royal and Sun Alliance Co. of Canada, [2008] 3 S.C.R. 453, [2008] S.C.J. No. 67, 2008 SCC 66 , EYB 2008-150740, J.E. 2008-2205, 299 D.L.R. (4th) 1, 170 A.C.W.S. (3d) 623, 381 N.R. 332, [2009] I.L.R. I-4755, 243 O.A.C. 340, 68 C.C.L.I. (4th) 1; Continental Insurance Co. v. Dalton Cartage Co., 1982 CanLII 13 (SCC) , [1982] 1 S.C.R. 164, [1982] S.C.J. No. 116, 131 D.L.R. (3d) 559, 40 N.R. 135, 25 C.P.C. 72, [1982] I.L.R. Â1-1487 at 698; Co-operators Life Insurance Co. v. Gibbens, [2009] 3 S.C.R. 605, [2009] S.C.J.

No. 59, 2009 SCC 59 , 99 B.C.L.R. (4th) 1, 396 N.R. 165, 79 C.C.L.I. (4th) 1, J.E. 2010-1, 2010EXP-5, 313 D.L.R. (4th) 513, [2010] 1 W.W.R. 575, [2010] I.L.R. I-4928, 278 B.C.A.C. 283; Dunsmuir v. New Brunswick, [2008] 1 S.C.R. 190, [2008] S.C.J. No. 9, 2008 SCC 9 , 329 N.B.R. (2d) 1, 64 C.C.E.L. (3d) 1, 164 A.C.W.S. (3d) 727, EYB 2008-130674, J.E. 2008-547, [2008] CLLC Â220-020, 170 L.A.C. (4th) 1, 372 N.R. 1, 69 Imm. L.R. (3d) 1, 291 D.L.R. (4th) 577, 69 Admin. L.R. (4th) 1, 95 L.C.R. 65, D.T.E. 2008T-223; Eli Lilly & Co. v. Novopharm Ltd.; Eli Lilly & Co. v.

Apotex Inc., 1998 CanLII 791 (SCC) , [1998] 2 S.C.R. 129, [1998] S.C.J. No. 59, 161 D.L.R. (4th) 1, 227 N.R. 201, J.E. 98-1562, 80 C.P.R. (3d) 321, 80 A.C.W.S. (3d) 871; Non- Marine Underwriters, Lloyd's of London v. Scalera, [2000] 1 S.C.R. 551, [2000] S.C.J. No. 26, 2000 SCC 24 , 185 D.L.R. (4th) 1, 253 N.R. 1, [2000] 5 W.W.R. 465, J.E. 2000-935, 135 B.C.A.C. 161, 75 B.C.L.R. (3d) 1, 18 C.C.L.I. (3d) 1, 50 C.C.L.T. (2d) 1, [2000] I.L.R. I-3810, 96 A.C.W.S. (3d) 479; [page372] Reid Crowther & Partners Ltd. v. Simcoe & Erie General Insurance Co., 1993 CanLII 150 (SCC) , [1993] 1 S.C.R. 252, [1993] S.C.J.

No. 10, 99 D.L.R. (4th) 741, 147 N.R. 44, [1993] 2 W.W.R. 433, J.E. 93-230, 83 Man. R. (2d) 81, 13 C.C.L.I. (2d) 161, 6 C.L.R. (2d) 161, [1993] I.L.R. para. 1 -2914 at 2206, 37 A.C.W.S. (3d) 1267 Statutes referred to Insurance Act, R.S.O. 1990, c. I.8, s. 233 [as am.] Rules and regulations referred to Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rule 14.05(3) (d), (

g) Authorities referred to Boivin, Denis, Insurance Law (Toronto: Irwin Law, 2004) Ontario Automobile Policy (OAP 1) William S. Chalmers, for appellant. Linda C. Phillips-Smith, for respondent. The judgment of the court was delivered by LANG J.A.:-- Overview [ 1 ] This appeal concerns the

interpretation of a fleet insurance contract. [ 2 ] The application judge concluded that the Honda Civic, driven by Rachel Noonan, was not covered by the optional insurance that she purchased when she rented the car from Choice Car and Truck Rental ("Choice").

That insurance was provided by Zurich Insurance Company ("Zurich") pursuant to a fleet insurance endorsement. [ 3 ] For the reasons that follow, I would allow the appeal and, based on the wording of this particular policy and endorsement, declare that the Zurich insurance contract provided coverage for the leased cars in Choice's fleet, the number of which Choice was obliged to include in a monthly report to Zurich. Background [ 4 ] The application was brought pursuant to rule 14.05(3) (

d) and (

g) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 . It arises from an underlying action that was brought against Ms. Noonan and Tracmount/Glojack Leasing ("Tracmount"). The plaintiff in that

action alleged that he suffered injuries when [page373] he was hit by the Honda Civic driven by Ms. Noonan in November 2004. [ 5 ] Zurich denied a duty to defend and indemnify Ms. Noonan or Tracmount on the basis that Choice did not have coverage for that particular car because Choice did not identify the Honda Civic in its monthly fleet report. Ms. Noonan responded by issuing a third party claim against Zurich and Choice.

She alleged that Choice acted as Zurich's agent in providing the insurance coverage and sought an order that Zurich provide her with coverage for the accident, as well as relief from forfeiture for any default in Choice's obligation to specify particulars in its monthly reports. [ 6 ] Choice leased the Honda Civic from Tracmount pursuant to a written lease dated November 1, 2004. [See Note 1 below] The form of lease obliged Choice to provide insurance.

However, as a precaution against a failure on Choice's part to do so, Tracmount maintained a contingent lessor's liability insurance policy with Lombard Canada Ltd. ("Lombard"). [ 7 ] Zurich and Lombard have agreed that if the Zurich insurance contract does not respond, the Lombard policy will respond to provide coverage and to require Lombard to defend and indemnify Ms. Noonan and Tracmount. Lombard is the applicant and appellant in this proceeding. It takes the position that it stands in the shoes of Ms.

Noonan in bringing the application for a declaration that Zurich is the insurer required to defend and indemnify Ms. Noonan in the underlying action. [ 8 ] Which insurance contract responds depends on the

interpretation of the Zurich insurance contract and, in particular, the provision regarding the required contents of the monthly reports. The Insurance Contract [ 9 ]

Section 1.1 of the standard Ontario Automobile Policy (OAP 1) (the "Policy"), entitled "This Policy is Part of a Contract", provides that the insurance contract includes three documents: [page374] -- a completed and signed Application for Automobile Insurance, -- a Certificate of Automobile Insurance, and -- this policy. [ 10 ] The Application for Automobile Insurance did not form part of the record in this case. In addition, the record does not contain a document entitled a "Certificate of Automobile Insurance" issued to Choice. Counsel acknowledged that they "do not have" such a document.

There was no indication in the record whether one was issued or, if one was issued, as to the nature of its contents. [ 11 ] Accordingly, the only relevant documents for the purpose of interpreting the Zurich insurance contract are the Policy and the fleet endorsement entitled "OPCF 21A Monthly Reporting Basis Fleet" (the "Endorsement"). (

a) The Policy [See Note 2 below] [ 12 ] The Policy document begins with a section-by-section explanation entitled "About This Policy". It explains that s. 2, "What Automobiles are Covered", specifies that "coverages are available" to a "described" automobile and to other types of automobiles in certain circumstances. [ 13 ] The next part of the Policy, entitled "What Insurance is Required by Law?", provides that "[y]ou only have a specific coverage if your Certificate of Automobile Insurance shows a premium for it . . .".

Similarly, the s. 1.1 "Introduction" provides that the insured only has "a particular coverage for a specific automobile if your Certificate of Automobile Insurance shows a premium for it or shows the coverage is provided at no cost".

Section 1.3 defines a Certificate of Automobile Insurance as "a written document summarizing your insurance coverage" that "lists the coverages purchased [and] premiums charged . . ." and "shows . . . the described automobile or automobiles". [page375] [ 14 ]

Section 2 of the Policy explains what automobiles are covered.

Section 2.1 reiterates the s. 1.3 explanation that a "described automobile" is "any automobile or trailer specifically shown on your Certificate of Automobile Insurance". It also advises that the Certificate of Automobile Insurance shows the coverages purchased for each "described automobile".

Section 2 lists various kinds of automobiles, such as a described automobile in s. 2.1, and newly acquired automobiles and temporary substitute automobiles in s. 2.2. [ 15 ] Finally, s. 1.8.3 states that "[e]xcept for certain Accident Benefits coverage, there is no coverage under this policy if the automobile is rented or leased by you to another". The Policy document thus does not address the situation of the Honda Civic that Choice leased from Tracmount. Coverage was extended to leased vehicles by the Endorsement. (

b) The Endorsement [ 16 ] The Endorsement begins by providing in part (

a) that "[t]he policy shall provide insurance" for all automobiles leased for more than 30 days if the insured as lessee is required to provide insurance pursuant to a written lease agreement. Part (

b) of the Endorsement obliges the insurer to provide specific coverages " . . . for all automobiles covered under part (a)". [ 17 ] The "Scope of Insurance Coverage" is addressed in parts (

b) to (

e) of the Endorsement. Part (

c) provides that there is no coverage for pre-Policy automobiles "NOT INCLUDED ON THE

SCHEDULE OF AUTOMOBILES FILED WITH THE INSURER . . ." (emphasis in original). The Endorsement does not similarly require scheduling of automobiles leased after the Policy came into effect. [ 18 ] Part (

d) provides for an advance premium due at the effective date of the Policy. Part (

e) provides for the manner of calculation of the premium and part (

f) requires Choice to file a monthly statement. The italicized portions in parts (

e) and (

f) that follow were added by the parties to the form of endorsement: [page376] [QL:GRAPHIC NAME="101OR3d371-1.jpg"/] (Emphasis added) [ 19 ] Finally, part (

g) of the Endorsement states in part that, except as otherwise provided, "all limits, terms, conditions, provision,

definitions and exclusions of the Policy shall have full force and effect". [page377] The Application Judge's Reasons

[ 20 ] The application judge rejected four arguments advanced on behalf of Lombard. First, she rejected the argument that all leased cars were covered provided they came within part (

a) of the Endorsement. She concluded [at para. 21] that this provision must be interpreted in light of the more specific requirements of the Policy that required a vehicle to be "described" and "specifically shown" on the Certificate. [ 21 ] Second, the application judge rejected Lombard's argument that, since part (

c) of the Endorsement included a requirement for the insured to

schedule pre-Policy cars, the absence of such a requirement for cars subsequently leased meant that Choice was not required to

schedule those cars. [ 22 ] Third, while the application judge recognized [at para. 26] that the Endorsement required the reporting of an "actual amount" of vehicles in the monthly report, she rejected Lombard's argument that the reporting requirement was solely quantitative. Instead, she concluded that Choice was required to list the particulars of the automobiles on the monthly reports. In arriving at this

interpretation, the application judge relied on three documents. First, she relied on the format of the actual monthly report for October 2004, the only monthly report filed on the application. That report contained columns of required information. The columns were completed for the year, model and serial number for 26 leased automobiles. The columns for physical damage, date received and date disposed were not completed.

Second, the application judge relied [at para. 30] on the requirement set out in a Certificate issued to Tracmount as an additional insured, that vehicles be "designated" on Choice's monthly reports. Third, she referred to the Policy's provision for coverage, which provided coverage for a "described" vehicle that was "specifically shown" on the Certificate. [ 23 ] Finally, the application judge concluded [at para. 42] that an insurer would need to know the particulars of the vehicles it was insuring because "[o]therwise, there would be a concern that an insured could claim insurance for a non-insured car".

The application judge added, however, that this was "not to suggest that this is what occurred in this case". Issues [ 24 ] The appellant argues that the application judge erred in her

interpretation of the Zurich insurance contract and that the Honda Civic was covered by that contract. [page378] Analysis (

a) Standard of review and its application [ 25 ] To the extent the

interpretation of an insurance contract is purely a question of law, as it is in this case, it is reviewed on a standard of correctness: see Dunsmuir v. New Brunswick, 2008 SCC 9 (CanLII) , [2008] 1 S.C.R. 190, [2008] S.C.J. No. 9, at para. 50 . [ 26 ] In the course of

interpretation, reliance upon evidence extrinsic to the contract is only available if the interpretive process discloses an ambiguity that requires resolution: see Eli Lilly & Co. v. Novopharm Ltd.; Eli Lilly & Co. v. Apotex Inc., 1998 CanLII 791 (SCC) , [1998] 2 S.C.R. 129, [1998] S.C.J. No. 59, at paras. 54 and 55 . This principle is not addressed in the reasons of the application judge. To the contrary, her reasons relied on "four documents" to interpret the contract: the Policy, the Endorsement, the Tracmount Certificate and the "Fleet Report". Indeed, both the Fleet Report and the Tracmount Certificate figured prominently in the application judge's

interpretation of the Zurich insurance contract. [ 27 ] The Fleet Report is clearly not part of the contract, which neither defined nor otherwise identified such a form. [See Note 3 below] Thus, absent an ambiguity, it cannot be considered in the interpretive process. [ 28 ] Similarly, the Tracmount Certificate cannot assist. It was a one-page document entitled "Certificate of Insurance" that was addressed to Tracmount as an "additional insured". The Certificate certified to Tracmount that coverage applied "to vehicles designated on monthly reports submitted to the Insurer by the Policyholder" (emphasis added).

The emphasized words in the Certificate are important because they could be interpreted to require itemization of the individual vehicles in the fleet. Indeed, this is the

interpretation arrived at by the application judge. [ 29 ] However, Zurich issued the Tracmount Certificate to Tracmount. It was was not addressed to Choice and was not part of the contract between Choice and Zurich. Counsel acknowledged that they "do not have" Choice's Certificate of Automobile Insurance. There was no evidence that Choice's Certificate was misplaced or that the information in the Tracmount Certificate was or would have been identical to any Certificate issued to [page379] Choice.

Not only was the Tracmount Certificate addressed to a different party, it was differently titled and provided significantly less detail than the form of Certificate of Automobile Insurance contemplated by the Policy and approved by the superintendent of financial services. In addition, by its own terms, the Tracmount Certificate was subordinate to "the terms, conditions and exclusions" of the Policy, including the Endorsement. [ 30 ] Choice's Certificate of Automobile Insurance, if one existed, would have been useful in assisting the interpretive process as, by its terms, it forms part of the insurance contract.

The Policy defines it as a document "summarizing your insurance coverage" and listing the "coverages purchased, premiums charged, and the period during which the insurance is in effect". The Policy repeatedly refers to the Certificate of Automobile Insurance as providing coverage for vehicles that it "specifically show[s]". [ 31 ] In its absence, it is necessary for this court to undertake its own

interpretation of the insurance contract based on the two relevant documents: the Policy and the Endorsement. (

b) Principles of insurance contract

interpretation [ 32 ] The foundation for the relevant principles and process for the

interpretation of an insurance contract is Consolidated Bathurst Export Ltd. v. Mutual Boiler & Machinery Insurance Co., 1979 CanLII 10 (SCC) , [1980] 1 S.C.R. 888, [1979] S.C.J. No. 133. At pp. 899-901 S.C.R. of that case, Estey J., writing for the majority, explains the two phases of the analysis for the

interpretation of any contract, including an insurance contract. [ 33 ] The first is the interpretive phase based on the guidelines for construction. Subjective intention is irrelevant at this stage of the process, although the words used may be "possibly read in light of the surrounding circumstances which were prevalent at the time": see Eli Lilly, at para. 54. If the meaning is plain on the face of the contract, it is unnecessary to proceed further: see Non-Marine Underwriters, Lloyd's of London v. Scalera, 2000 SCC 24 (CanLII) , [2000] 1 S.C.R. 551, [2000] S.C.J. No. 26, at para. 71 . However, if the interpretive phase results in two equally reasonable

interpretations, the contract is ambiguous. In those circumstances, the court turns to the second phase of the inquiry. At this phase, the court may consider extrinsic evidence: see Eli Lilly, at para. 55. As well, the court

may consider the applicability of contra proferentem: see Consolidated Bathurst, at p. 901 S.C.R. [ 34 ] In the interpretive phase, the onus is upon the insured to show that the loss is covered by the policy in question. Once the insured has done so, the burden shifts to the insurer to show [page380] otherwise, including by reason of the operation of an exclusion or limitation in the insurance contract: see Continental Insurance Co. v. Dalton Cartage Co., 1982 CanLII 13 (SCC) , [1982] 1 S.C.R. 164, [1982] S.C.J. No. 116; Canadian National Railway Co. v.

Royal and Sun Alliance Insurance Co. of Canada, 2008 SCC 66 (CanLII) , [2008] 3 S.C.R. 453, [2008] S.C.J. No. 67, at para. 34 ; Co-Operators Life Insurance Co. v. Gibbens, 2009 SCC 59 (CanLII) , [2009] 3 S.C.R. 605, [2009] S.C.J. No. 59, at para. 51 ; Denis Boivin, Insurance Law (Toronto: Irwin Law, 2004) at p. 190. In interpreting a provision, the court will also recognize that coverage provisions are "construed broadly and exclusion clauses narrowly": see Reid Crowther & Partners Ltd. v. Simcoe & Erie General Insurance Co., 1993 CanLII 150 (SCC) , [1993] 1 S.C.R. 252, [1993] S.C.J.

No. 10, at p. 269 S.C.R.; Scalera, at para. 70 . [ 35 ] With this onus in mind, the court turns to the first phase, the interpretive phase, the purpose of which is to discern the intention of the parties as gathered from the plain words used in the contract. In doing so, the court considers the contract as a whole and in the "commercial atmosphere in which the insurance was contracted": Consolidated Bathurst, at p. 901 S.C.R. (

c) Interpretation of this contract [ 36 ] An insurance contract must be considered in the light of its purpose. The purpose of fleet insurance is not in dispute. As applicable here, fleet insurance provides coverage to the driver, rental company and lessor for a fleet of cars. By its nature, the rental cars in a fleet change frequently by reasons of addition and attrition.

Rather than reissuing the Certificate of Automobile Insurance on a monthly basis to accommodate such a changeover, a fleet Endorsement substitutes a requirement for the filing of a monthly fleet report with the insurer. [ 37 ] The dispute in this case centres on the required content of the monthly report. Concerning this issue, the affidavit of Zurich's "specialist" stated that insurers would be prejudiced if rental companies only disclosed vehicles after they were in an accident.

However, the same "specialist" in the same affidavit also swore that it was of "vital commercial importance" for Zurich to know the "number of vehicles on the road" (emphasis added) that it insures. Not only is Zurich's evidence contradictory on this point, there was no evidence that Choice knew anything about the details of the insurer's objectives at the time it entered into the contract. [ 38 ] With this context, or lack of context, I turn to the Policy itself.

The Policy, it will be remembered, provides "specific coverage" or "particular coverage for a specific automobile" and defines [page381] a "described" automobile as one "specifically shown on your [or the] Certificate of Automobile Insurance" (s. 2.1 and s. 1.3). [ 39 ] In contrast, part (

a) of the Endorsement, adding fleet coverage to the Policy, does not use this language of specificity. Instead, the Endorsement provides coverage for licenced automobiles leased from any lessor for more than 30 days where the lease agreement requires Choice to provide automobile insurance. Part (

b) of the Endorsement obliges the insurer to provide coverage "for all automobiles covered under part (a)". [ 40 ] Part (

c) excludes coverage for those cars contained in a

schedule of automobiles as at the effective date of the policy. However, the requirement for scheduling does not apply to cars leased after the start date of the Policy, such as the Honda Civic. Instead, for such cars, part (

f) requires Choice to provide a monthly statement by the 15th day of the following month "of the actual amount of . . . Other . . . for the preceding month". "Other" refers back to part (e), which calculates the insurance premium based on rates per "Automobile Per Month and the estimated total of 30 . . . vehicles reported monthly". The "Total Rate" in part (

e) also describes the premium as calculated on the basis of "Per Vehicle Per Month". [ 41 ] I observe that the language of "Automobile Per Month" and "Per Vehicle Per Month" strongly indicates coverage based on the number rather than the particulars of the cars in the fleet. While "actual amount" appears in the standard form endorsement, the additional language of quantification does not.

It appears to have been purposefully added to the Endorsement by the parties. [ 42 ] In addition, Choice and Zurich opted against two other choices for rate calculation or risk assessment that were printed on the form: "Receipts" and "Mileage". In doing so, the parties decided to assess the risk based on the number of cars in the fleet, rather than the amount of rental income or rental mileage for the relevant month. This choice also informs the

interpretation of the words of the insurance contract. [ 43 ] For two reasons, I am not persuaded to a different conclusion by Zurich's argument that a description of each vehicle is necessary in the fleet insurance context for compliance purposes and to enable the insurer to rate the risk or premium based on the value of the particular automobile. First, if such a term was necessary, Zurich could have required a detailed

schedule of the particulars of the vehicles in the Endorsement. This could have been accomplished simply by extending part (c), which denied coverage for unscheduled pre- Policy vehicles, to apply to vehicles leased subsequently. In the alternative, it could have [page382] incorporated a description of the contents of the monthly report in the Endorsement or appended a required form for the report. [ 44 ] Second, by its terms, the Endorsement provides for monthly reports only on the 15th day of the following month.

Accordingly, the insurer could not know about the specific vehicles leased or surrendered during the Policy period for up to six weeks. [ 45 ] In any event, the Policy provides a mechanism for the insurer to charge an additional premium in the event of an incorrect classification. Thus, it is not prejudiced by receiving delayed information about the particulars of the fleet. Also, the statutory conditions required Choice to notify Zurich of any change in the risk that is material to the contract.

Failure to comply carries serious consequences. [See Note 4 below] The availability of these and other mechanisms may explain why the parties agreed to the monthly reporting of the number of vehicles in the fleet. [ 46 ] In my view, the parties contracted for monthly reports based upon the actual amount of vehicles in the fleet. The parties' deliberate decision on the plain language of the contract leaves no room for ambiguity. Accordingly, this case is decided at the first phase of the Consolidated Bathurst analysis.

It is not necessary to go beyond the language of the contract to resort to other interpretive aids, such as the introduction of extrinsic evidence or the application of the contra proferentem doctrine.

[ 47 ] I note that Zurich did not pursue its alternative argument that the Lombard policy must pay to its full limits before the Zurich policy is required to respond. Result [ 48 ] In the result, I would allow the appeal and grant a declaration that, as between Zurich and Lombard, the Zurich insurance contract provides coverage for the leased cars, the number of which Choice was obliged to report to Zurich in the monthly report described in the Endorsement. [ 49 ] Since neither Choice nor Ms. Noonan is a party to this application, this court cannot finally determine matters that would affect their interests.

Thus, the factual issue of whether Choice complied with its obligation to report the number of fleet vehicles, the applicability of other terms of the insurance contract, Ms. Noonan's claim for relief from forfeiture and other issues affecting non-parties remain outstanding. [page383] Costs [ 50 ] Costs are awarded to the successful appellant in the agreed-upon amount of $7,930.42, inclusive of disbursements and Goods and Services Tax. Appeal allowed. Notes ---------------- Note 1: While November 1 was the date set out in the lease, Tracmount sent Choice an insurance request form on October 7, 2004.

However, it appears that nothing turns on any discrepancy in the dates because, at least on Zurich's evidence, the Honda Civic was not described by make, model and serial number in any of the monthly reports whether for October, November or December. Note 2: The version of the OAP 1 filed in this proceeding is effective only as of January 1, 2007. The OAP 1 in effect in 2004 is available on the website of the Financial Services Commission of Ontario at There are differences between the 2004 and 2007 forms.

However, nothing turns on these differences since the sections below are identical in both versions of the OAP 1. Note 3: The only Fleet Report file on this application was for the month of October 2004. It listed 26 vehicles showing year, make/model and serial number. Most of the cars were Toyotas, Mazdas and Nissans, although the two older highter-end cars are also included. Note 4: See s. 223 of the Insurance Act, R.S.O. 1990, c. I.8 . ----------------