Sobolewski v. Aviva Canada Inc., 2013 ONSC 4598

CITATION: Sobolewski v. Aviva Canada Inc., 2013 ONSC 4598 COURT FILE NO.: 08-2265 and 07-34062 DATE: 2013/07/05 SUPERIOR COURT OF JUSTICE – ONTARIO RE: Stefan Sobolewski (Plaintiff) v. Aviva Canada Inc. (Defendant) (# 08-2265 ) Stefan Sobolewski and Stefan T. Sobolewski (Plaintiffs) v. The Estate of Stephen Lawrence, deceased, Charles Lawrence, Hamilton Police Services Board, John Doe, Jane Doe, Pilot Insurance Company and Aviva Canada Inc. (Defendants) (# 07-34062 ) BEFORE: The Honourable Mr. Justice R.A. Lococo COUNSEL: James Cavanagh, for the Plaintiffs/responding parties (both actions) Cara L.

Boddy, for the Defendant/moving party (# 08-2265 ) Brian G. Sunohara, for the Defendants/moving parties, Pilot Insurance Company and Aviva Canada Inc. (#07-34062) HEARD: January 28 and 29 and June 14, 2013 (in Hamilton) E N D O R S E M E N T I. Introduction [ 1 ] The Defendants, Pilot Insurance Company and Aviva Canada Inc. (collectively “Aviva”), have brought

summary judgment motions requesting the dismissal of two actions brought by the Plaintiff, Stefan Sobolewski. [ 2 ] Stefan Sobolewski was very seriously injured in an automobile accident that occurred on October 20, 2005. He was a passenger in a 1991 Pontiac Tempest that he beneficially owned. The car was driven by a student driver, Daniella Margani, who was a client of Diamond Driving School. Mr. Sobolewski is the owner of Diamond Driving School. The accident occurred when an uninsured vehicle being pursued by police crossed into the path of the Tempest, resulting in a collision. [ 3 ] Mr.

Sobolewski had insured the Tempest under an automobile insurance policy issued by Aviva. Under that policy, the Tempest was insured for use as a personal vehicle and not for business purposes. Prior to February 28, 2004, the Tempest was insured under a commercial insurance policy that contemplated use of that car as a training vehicle in Mr. Sobolewski’s driving school business. [ 4 ] Mr. Sobolewski brought two actions against Aviva. In the first action, he claimed uninsured coverage and underinsured coverage for tort liability with respect to the injuries he sustained in the accident.

In the second action, he claimed statutory accident benefits, consisting of income replacement benefits and housekeeping and home maintenance benefits, as well as punitive and/or aggravated damages arising from Aviva’s failure to provide those benefits. Aviva is represented by different law firms in the two actions. [ 5 ] In the tort action, Aviva takes the position that Mr. Sobolewski is not entitled to uninsured coverage and underinsured coverage for tort liability under the policy, for the following reasons: 1.

He breached a statutory condition and the terms of the policy by failing to notify Aviva of a change in risk material to the contract known to him, that is, the change in use of the vehicle from personal to business purposes; and 2. He wilfully made false statements to Aviva with respect to his accident claim, invaliding his claim by reason of clause 233(1) (

c) of the Insurance Act . [ 6 ] In the accident benefits action, Aviva takes the position that Mr. Sobolewski is not entitled to coverage for certain of the benefits he claimed, again based on Mr. Sobolewski’s alleged failure to notify Aviva of a change in use of the vehicle. According to Aviva, under the Statutory Accident Benefits

Schedule , [1] Aviva was not required to pay those benefits because Mr. Sobolewski failed to notify Aviva of a change in the risk material to the contract and that his failure was intentional. [ 7 ] On the

summary judgment motions, Aviva’s position is that there is no genuine issue requiring a trial for either action, and that both actions should accordingly be dismissed. [ 8 ] According to Mr. Sobolewski, Aviva’s

summary judgment motions should be dismissed on the following grounds: 1. Application of statutory condition to uninsured coverage: Aviva cannot rely on breach of a statutory condition to deny uninsured coverage for tort liability because the statutory condition does not apply to uninsured coverage. 2. No genuine issue requiring a trial: Aviva has not met the required onus of establishing that there is no genuine issue requiring a

trial, in particular with respect to the following material issues: (

a) Failure to notify of change of risk: A trial is required to determine if Mr. Sobolewski failed to notify Aviva of a material change in risk known to him or has done so intentionally. (

b) False statements about claim: A trial is required to determine if Mr. Sobolewski wilfully made false statements to Aviva with respect to his accident claim. [ 9 ] I will deal with each of these grounds in turn below. II.

Application of statutory condition to uninsured coverage [ 10 ] Every contract of automobile insurance in Ontario is deemed to include statutory conditions prescribed by subsection 234(1) of the Insurance Act . [2] Statutory Condition 1(1) [3] requires the insured named in the contract to “promptly notify the insurer or its local agent in writing of any change in the risk material to the contract and within the insured’s knowledge.” [ 11 ] The application of the statutory conditions prescribed by subsection 234(1) of the Insurance Act is expressly limited by subsection 234(3) .

That provision provides that except as otherwise provided in the insurance contract, the statutory conditions do not apply to uninsured automobile coverage under

section 265 of the Insurance Act or accident benefit coverage under

section 268 . [ 12 ] As previously noted, Mr. Sobolewski has brought claims against Aviva for uninsured coverage, underinsured coverage and accident benefit coverage. As explained below, the parties agree that Statutory Condition 1(1) applies to underinsured coverage and does not apply to accident benefit coverage. Their positions differ, however, on the application of Statutory Condition 1(1) to uninsured coverage. [ 13 ] Both parties agree that Statutory Condition 1(1) applies to underinsured coverage.

That conclusion follows from the fact that the application of the statutory conditions to underinsured coverage is not expressly excluded by subsection 234(3) of the Insurance Act . [ 14 ] Both parties also agree that Statutory Condition 1(1) does not apply to accident benefit coverage. That conclusion follows from subsection 234(3) of the Insurance Act, which expressly provides that the statutory conditions do not apply to accident benefit coverage under

section 268 . As well, Aviva has not proposed any other basis to support the application of the statutory conditions to accident benefit coverage. [ 15 ] Turning finally to uninsured coverage, Aviva’s position is that Statutory Condition 1(1) applies to uninsured coverage even though subsection 234(3) of the insurance Act expressly provides that the statutory conditions do not apply to uninsured automobile coverage under

section 265. According to Aviva, that result follows from the joint operation of the provisions outlined below. [ 16 ] First, the exception made for coverage in subsection 234(3) of the insurance Act is qualified by the opening words of that subsection, that is, “Except as otherwise provided in the contract”. [ 17 ] Second,

section 265 of the Insurance Act provides for regulation-making power with respect to contracts that provide uninsured coverage. Specifically, subsection 265(1) provides that payment of claims for uninsured coverage shall be subject to the terms, conditions, provisions, exclusions and limits as are prescribed by the regulations. In addition, clause 265(5)(

a) permits the Lieutenant Governor in Council to make regulations prescribing terms, conditions, provision, exclusions and limits with respect to such payments. As well, clause 265(5)(

c) permits the Lieutenant Governor in Council to make regulations requiring that the terms, conditions, provisions, exclusions and limits prescribed for policies that provide for uninsured coverage be attached to or included in every policy as a

schedule in or to the policy. [ 18 ] Third, Regulation 676 – Uninsured Automobile Coverage [4] provides that the terms, conditions, provision, exclusions and limits set out in the

Schedule to that regulation shall be attached to or included in every policy as a

schedule in or to the policy. [ 19 ] Fourth,

section 10 of the

Schedule to Regulation 676 – Uninsured Automobile Coverage provides as follows: 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. [ 20 ] According to Aviva, by reasons of the joint operation of those provisions, the

Schedule in Regulation 676 must be attached to or included in every motor vehicle liability policy, and

section 10 of the

Schedule states that the statutory conditions apply to uninsured coverage. Accordingly, the policy provides for the application of the statutory conditions to uninsured coverage, displacing the exclusion for uninsured coverage that would otherwise apply under subsection 234(3) of the Insurance Act . As a result, Aviva would be allowed to rely on a breach of Statutory Condition 1(1) in order to deny uninsured coverage to Mr.

Sobolewski. [ 21 ] During the initial submissions of counsel on this motion, Aviva’s counsel urged me to accept this analysis, even though it was inconsistent with the result reached in two decisions of this Court, Bruinsma v. Cresswell [5] and Matt v. Crawford . [6] [ 22 ] The issue in Bruinsma v. Cresswell was whether uninsured coverage was unavailable to the insured by reason of the breach of a statutory condition and a term of the policy requiring that the vehicle not be driven or permitted to be driven by a person who is not authorized by law to do so. Mr.

Justice Heeney found that there was an irreconcilable conflict between subsection 234(3) of the Insurance Act (which states that the statutory conditions do not apply to uninsured coverage except as otherwise provided in the contract) and

section 10 of the

Schedule to Regulation 676 (which states that the statutory conditions apply to uninsured coverage in so far as applicable). Accordingly, the provisions of the Insurance Act take precedence, with the result that the insurer may not rely on a breach of a statutory condition to deny uninsured coverage. [ 23 ] Mr. Justice Heeney also rejected the insurer’s argument that uninsured coverage was also precluded by

section 1.4 of the

Ontario Automobile Policy (OAP1) , [7] the standard automobile insurance policy in Ontario, which provides that claims under the policy may be denied if a condition set out in that

section is not met. Mr. Justice Heeney found that statement that claims “may be denied” was not strong enough to preclude coverage, consistent with the decision of Madam Justice Mullins in Matt v. Crawford . [8] [ 24 ] Since the initial oral submissions on the motions before me, the Ontario Court of Appeal has released its decision on the appeal in Bruinsma v. Cresswell . [9] The Court of Appeal upheld Mr. Justice Heeney’s decision, finding that the insurer could not rely on the insured’s breach to deny uninsured coverage in that case.

In particular, the Court of Appeal held that by reason of subsection 234(3) of the Insurance Act , the statutory conditions did not apply to uninsured overage unless the policy “otherwise provided”, and the policy did not otherwise provide in that case. [ 25 ] In reaching that conclusion, the Court of Appeal’s reasoning was different than that of the court below. The Court of Appeal did not agree that there was an irreconcilable difference between subsection 234(3) of the Insurance Act and

section 10 of the

Schedule to Regulation 676 . Rather, the basis for the Court’s decision was that the policy did not “otherwise provide” that the statutory condition applied to uninsured coverage because the policy did not explicitly state that such was the case. There was no conflict with

section 10 of the

Schedule to Regulation 676 , which provides that the statutory conditions apply to uninsured coverage only “in so far as applicable.” The Court reached that conclusion after considering the legislative history of those provisions, with subsection 234(3) of the Insurance Act coming into effect after

section 10 of the

Schedule to Regulation 676 without any change to the latter provision. [ 26 ] The Court of Appeal also disagreed with the lower court’s

interpretation of

section 1.4 of the Ontario Automobile Policy , that is, the use of the wording “may deny coverage” was not sufficient to preclude coverage. In fact, the Court considered the requirement in

section 1.4 of the Ontario Automobile Policy applicable in that case to be itself a statutory condition, the breach of which would allow the insurer to deny coverage where permitted by

section 234 of the Insurance Act . However, as already indicated, the Court held that the insurer was not entitled to deny uninsured coverage in that case because of the application of subsection 234(3) of the Insurance Act and the fact that the policy did not “otherwise provide” that the statutory condition applied to that policy. [ 27 ] In supplemental oral submissions before me after the release of the Court of Appeal’s decision in Bruinsma v.

Cresswell , Aviva’s counsel expressed the view that in reaching the conclusion that the policy did not “otherwise provide” that the statutory conditions apply to uninsured coverage, the Court of Appeal had failed to refer to and consider subsection 265(5) of the Insurance Act .

Counsel submitted that the per incuriam exception to stare decisis should apply in this case, which would allow the Court of Appeal to overrule its own decision. [10] While Aviva’s counsel invited me to express my view on his argument, I am content to leave that issue for the Court of Appeal to consider at the appropriate time. [ 28 ] Applying the reasoning of the Court of Appeal in Bruinsma v. Cresswell , I find that Aviva cannot deny Mr. Sobolewski uninsured coverage for tort liability based on an alleged breach of Statutory Condition 1(1).

By reason of subsection 234(3) of the Insurance Act , Statutory Condition 1(1) does not apply to uninsured coverage except as otherwise provided in the insurance contract. In this case, the insurance contract did not otherwise incorporate that statutory condition. III No genuine issue requiring a trial [ 29 ] Regardless of the outcome with respect to application of Statutory Condition 1.1 to uninsured coverage, Mr. Sobolewski’s counsel argued Aviva had not met the onus of establishing that

summary judgment should be granted in either action. [ 30 ] Pursuant to clause 20.04(2) (

a) of the Rules of Civil Procedure , [11]

summary judgment will be granted if the court is satisfied that there is no genuine issue requiring a trial. In determining whether the test for

summary judgment has been met, the court is entitled to weigh the evidence, evaluate credibility of a deponent and draw any reasonable inference from the evidence, unless it is in the interest of justice for such powers to be exercised only at a trial. [12] [ 31 ] According to the Ontario Court of Appeal decision in Combined Air Mechanical Services Inc. v. Flesch , [13] in order to determine whether the test for

summary judgment has been met: . . . the motion judge must ask the following question: can the full appreciation of the evidence and issues that is required to make dispositive findings be achieved by way of

summary judgment, or can this full appreciation only be achieved by way of a trial? [14] [ 32 ] The onus of establishing that there is no genuine issue requiring a trial is on the moving party (in this case, Aviva). If this onus is not satisfied,

summary judgment will not be granted. However, both parties are required to “put their best foot forward” with respect to the existence or non-existence of material issues to be tried. [15] This requirement is consistent with subrule 20.02(2) of the Rules of Civil Procedure , which requires the responding party to place before the motions judge evidence of specific facts showing that there is a genuine issue requiring a trial. [ 33 ] For the reasons set out below, I have concluded that in this case Aviva has not met its burden of establishing that there is no genuine issue requiring a trial. Accordingly, I am dismissing Aviva’s motions for

summary judgment with respect to both actions. (

a) Failure to notify of change of risk [ 34 ] According to Mr. Sobolewski, a trial is required to determine if Mr. Sobolewski failed to notify Aviva of a material change in risk known to him or has done so intentionally. By way of background, when considering the issue of whether Aviva was justified in denying coverage based on alleged failure to report a change in risk, it is helpful to distinguish once again between uninsured coverage, underinsured coverage and accident benefit coverage. [ 35 ] In the case of uninsured coverage, Aviva is not entitled to rely on breach of Statutory Condition 1(1) based on Mr.

Sobolewski’s alleged failure to notify Aviva of a material change in risk known to him. As indicated previously, this result follows from application of the decision of the Court of Appeal in Bruinsma v. Cresswell . [ 36 ] The same is not true of underinsured coverage, however. As previously noted, application of Statutory Condition 1(1) is not

precluded by subsection 234(3) of the Insurance Act . Accordingly, breach of that statutory condition would entitle Aviva to deny underinsured coverage. [ 37 ] In the case of accident benefit coverage, Statutory Condition 1(1) clearly does not apply, but Aviva relied on other grounds to deny coverage. In particular, Aviva denied accident benefit coverage with respect to income replacement and housekeeping and home maintenance. However, Aviva did not dispute Mr. Sobolewski’s claims for medical rehabilitation and attendant care expenses, and has in fact paid accident benefits to Mr.

Sobolewski in these categories. [ 38 ] In denying accident benefit coverage to the extent it did, Aviva relied on paragraph 30(2)(

a) of the Statutory Accident Benefits

Schedule . [16] Under that provision, an insurer is not required to pay an income replacement benefit or housekeeping and home maintenance benefits in the following circumstances: (

a) in respect of a person who has made, or who knows of, a material misrepresentation that induced the insurer to enter into the contract of automobile insurance or who intentionally failed to notify the insurer of a change in risk material to the contract. [ 39 ] In her oral submissions, Aviva’s counsel in the accident benefits action stated that Aviva’s denial of coverage was based on failure to notify of a change in risk, and not material misrepresentation that induced the insurer to enter into the contract. [ 40 ] According to Aviva, its entitlement to deny coverage based on an intentional failure to notify was also justified under sections 4.4 and 1.4.1 of the Ontario Automobile Policy .

Under

section 4.4, an insured person is not entitled to coverage for income replacement benefits or housekeeping and home maintenance benefits if an insured person “intentionally failed to notify us of any significant changes as required under

section 1.4.1.”

Section 1.4.1 of the Ontario Automobile Policy is set out below: 1.4.1 You agree to notify us promptly in writing of any significant change of which you are aware in your status as a driver, owner or lessee of the described automobile. You also agree to let us know of any change that might increase the risk of an incident or affect our willingness to insure you at current rates.

You must promptly tell us of any change in information supplied in your original application for insurance, such as additional drivers or a change in the way a described automobile is used. [ 41 ] Accordingly, in order to deny accident benefit coverage for income replacement and housekeeping and home maintenance expenses, it would be necessary for Aviva to establish first that Mr. Sobolewski failed to report a change in risk material to the contract, that is, substantially the same test as would be required to establish a breach of Statutory Condition 1.1.

In addition, in order to deny these categories of accident benefit coverage, Aviva must also establish that Mr. Sobolewski’s failure to notify was intentional. According to Mr. Sobolewski, the evidence before me raised a triable issue with respect to both aspects of this test. In this regard, it would be useful to set out further details relating to evidence before me on these motions. [ 42 ] Mr. Sobolewski operated the Diamond Driving School starting in 2003. One of the cars used for driving lessons was the Pontiac Tempest later involved in the October 2005 accident.

The car had a second set of brake pedals for use by the driving instructor. The car also had a Diamond Driving School sign on its roof. [ 43 ] Prior to February 28, 2004, the Tempest was insured under a commercial policy issued by Aviva to Mr. Sobolewski. The premium for that policy covering the Tempest and another vehicle was $4,660 for the year ended February 28, 2004. According to Mr. Sobolewski, by early 2004, he decided to no longer use the Tempest as a training vehicle, his intention being to no longer perform in-car training himself.

He notified his insurance broker, who prepared an application for a personal use policy for Mr. Sobolewski’s signature covering the Tempest. The broker submitted the application to Aviva. Aviva issued the personal use policy. The premium was $1,090 for the year ended February 28, 2005. The personal use policy was renewed for the year ended February 28, 2006, the period in which the accident occurred, for a premium of $935. [ 44 ] According to the evidence of Mr. Sobolewski before me, after February 28, 2004, Mr. Sobolewski no longer used the Tempest as a training vehicle.

He did not incur the expense of removing the extra brake pedals and did not remove the driving school sign on the car since it was free advertising for the school. He acknowledged that Ms. Margani, who was driving the car at the time of the accident, was a student of his driving school, but denied that he was giving her a driving lesson. According to Mr. Sobolewski, she had already completed her in-car training, which was necessary before she could book her driving test. At the time of the accident, Ms. Margani was already scheduled to take her driving test a short time later. According to Mr. Sobolewski, Ms.

Margani had called Mr. Sobolewski and asked for some additional practice time. The Ministry of Transportation testing centre had recently changed its driving test routes, and Mr. Sobolewski was planning to go out and map those routes. He therefore agreed that Ms. Margani could accompany him, with Ms. Margani driving the Tempest and Mr. Sobolewski mapping the test route. [ 45 ] Contrary to Mr. Sobolewski’s evidence, Ms. Margani’s recollection was that on the date of the accident, she was receiving the last of five in-car driving lessons, and that the previous four had been given by Mr.

Sobolewski in the same vehicle. She acknowledged on cross examination, however, that she could not remember when the other lessons had occurred or recall what was required before she would be able to book a driving test. She also acknowledged that she does not remember a lot of the details of the events, which occurred a number of years previously, and that she based the details on a written statement she gave to Aviva in December 2008, which was written out by an Aviva representative before being signed by Ms. Margani. [ 46 ] Neither Mr. Sobolewski nor Ms.

Margani had any written records relating to the lessons she took from the driving school. Mr. Sobolewski claimed that what records he had were in the Tempest at the time of the accident and were not there when the vehicle was later returned to him from the impound lot. [ 47 ] Subsequent to the accident, Aviva cancelled the insurance policy covering the Tempest effective February 13, 2006. Aviva refunded to Mr. Sobolewski a small amount of the premium to cover the period until the scheduled termination date for the policy on February 28, 2006.

[ 48 ] As noted previously, in order to deny underinsured coverage, it would be necessary for Aviva to establish that Mr. Sobolewski failed to report a change in risk material to the contract. As well, in order to deny accident benefit coverage for income replacement and housekeeping and home maintenance expenses, it would also be necessary to establish that the failure to notify was intentional.

On the evidence before me, I am not satisfied that Aviva has satisfied its onus of establishing that there is no genuine issue requiring a trial with respect to both of these issues. [ 49 ] Based on the evidence before me, Aviva has in my view established an arguable case that even on Mr. Sobolewki’s version of events, the Tempest was being used for a business purpose at the time of the accident. Whether or not Mr. Sobolewski was giving Ms.

Margani a driving lesson on that date, he was by his own admission mapping testing routes, and on the face of it such information would useful to him and his students in the conduct of his business. However, in order to prove a failure to report a material change in risk, it is also necessary to establish the materiality of the change of use. In this regard, the difference in premiums charged for business use and personal use policies is some evidence going to the issue of materiality, but not determinative in my view.

As well, on the more difficult and subjective issue of whether there was an intentional failure to notify, it is clear to me that this issue should be left to be determined in the trial context, where the trial judge would have a better opportunity of reconciling conflicting oral evidence of the relevant witnesses. In my view, it would not be appropriate to make a determination on the question of failure to report a material change in risk separately from a determination of whether the failure was intentional, given that these issues are intertwined.

Accordingly, I have concluded that the trial judge would be better situated to determine both of these issues. [ 50 ] On a related matter, Plaintiff’s counsel also advanced the position that Aviva had waived its ability to rely on the defences it asserts on the

summary judgment motion by advising Mr. Sobolewski (through its broker) that the cancellation of the insurance policy after the accident would not affect his claim, and also by continuing to pay housekeeping benefits after cancellation. However, the evidence before me on this motion is not sufficient to allow a determination on this issue. [ 51 ] In this regard, I note that the Plaintiff relied on the file memo dated January 30, 2006 of Diana Andrews of Cowan Insurance Brokers as evidence of Aviva’s notification that Mr. Sobolewski’s claim would not be affected by cancellation of the policy.

However, the memo goes on to state that the Mr. Sobolewski was advised that Aviva would continue their investigation of the claim regardless of the cancellation. In addition, it indicates that the broker also advised Mr. Sobolewski that she could not confirm that his claim would be covered. As well, by letter dated November 4, 2005, Aviva had advised Mr. Sobolewski that by investigating his claim, Aviva was reserving and not waiving any of its rights or defences it would otherwise have.

The evidence relating to a waiver on this basis is therefore equivocal and better dealt with at trial, to the extent relevant to the issues to be determined. (

b) False statements about claim [ 52 ] Aviva also takes the position that Mr. Sobolewski is not entitled to uninsured coverage and underinsured coverage for tort liability because he wilfully made false statements to Aviva with respect to his accident claim. [ 53 ] The legal basis for this position is clause 233(1) (

c) of the Insurance Act , which provides that where the insured wilfully makes a false statement in respect of a claim under the policy, a claim by the insured is invalid and the right of the insured to recover under the policy is forfeited. Under subsection 233(2) of the Insurance Act , subsection 233(1) has no application to accident benefit coverage. Accordingly, an insured’s false statement about a claim will invalidate a claim for tort liability coverage, but will not invalidate a claim for accident benefit coverage. [ 54 ] According to Mr.

Sobolewski, a trial is required in the tort action to determine if Mr. Sobolewski wilfully made false statements to Aviva with respect to his claim. In this regard, it would be useful to set out further details relating to evidence relating to the accident and the information Mr. Sobolewski provided about his claim. [ 55 ] Mr. Sobolewski believes that he lost consciousness following the accident in which he suffered a head injury. He was kept in hospital for 20 days prior to his release.

On November 17, 2005, seven days after his release from hospital, he was contacted by a representative of Aviva, who requested that he provide a statement. He said that he was not feeling well, but in any case provided a statement that day. He also provided a statement under oath to an insurance adjuster on November 30, 2005, again advising that he was not feeling well that day. Mr.

Sobolewski stated in his affidavit that when providing both those statements he was confused and unwell, and that he was still suffering significant memory, concentration and cognitive issues as a result of his brain injury. [ 56 ] In his submissions, Aviva’s counsel contrasted the information provided by Mr. Sobolewski with respect to the circumstances of the accident on November 17, 2005 and November 30, 2007, with information he provided in his examination for discovery for these actions on September 9, 2010 and in Mr. Sobolewski’s affidavit filed in response to this motion.

He also contrasted that information with that provided by Ms. Margani, the driver of the vehicle in her statement to an Aviva representative on July 27, 2012 and in her affidavit filed on this motion. [ 57 ] Aviva’s counsel relied on various inconsistencies between the information provided by Mr. Sobolewski on different occasions as well as with the information provided by Ms. Margani to support his argument that he had demonstrated that Mr.

Sobolewski had wilfully provided false information to Aviva about his claim, and that there was no triable issue arising from the evidence before the court on this motion. [ 58 ] For example, in his November 17, 2005 statement, Mr. Sobolewski stated that at the time of the accident he was engaging in promotional advertising driving, that the was giving a free ride to boost morale for the school and for promotion, and that he was trying to get Ms. Margani’s business. [ 59 ] In his November 30, 2005 statement, he said that he needed to map out a new Ministry driving test route, and he offered to take Ms.

Margani because she had a test in late November. He also stated that he asked Ms. Margani to drive because he was not feeling well. He claimed that Ms. Margani was an ex-student who had already graduated from the school. He also stated that he did not know who had provided Ms. Margani with in-car driving lessons. [ 60 ] In his September 9, 2010 discovery, he said that he took Ms. Margani to drive as a promotion because she had lots of friends,

and that it was a complementary ride. He also said that Ms. Margani had finished the course, and he wanted to map the Ministry route, asking Ms. Margani to on along on a route test. He said he could not drive because he was not able to drive and write or sketch the route at the same time. He also stated that he had no recollection of who provided Ms. Margani with in-car driving lessons. [ 61 ] As well, in Mr. Sobolewski’s affidavit filed on this motion, he states that he was providing Ms. Margani with extra practice training on the date of the accident. [ 62 ] By way of contrast, in Ms.

Margani’s statement and affidavit, she stated that at the time of the accident, Mr. Sobolewski was providing her with her fifth and final in-car driving lesson and that she had paid for them in advance. She also stated that Mr. Sobolewski had provided her with the other four lessons.

However, as noted previously, she acknowledged on cross examination that she could not remember when the other lessons had occurred, that she does not remember a lot of the details of the events, and that she based the details on her previous statement to Aviva, which was written out by an Aviva representative before being signed by Ms. Margani. [ 63 ] As the foregoing

summary of the evidence before me indicates, there is no doubt that there were a number of inconsistencies in the evidence provided by Mr. Sobolewski on different occasions, and that his evidence was inconsistent in certain respects with the evidence of Ms. Margani. Aviva’s counsel submitted that I should give preference to Ms. Margani’s evidence where it was inconsistent with that of Mr. Sobolewski, given that Ms. Margani was a disinterested party with nothing to gain from this litigation.

However, after considering the evidence before me and the submissions of counsel, I have concluded that Aviva has not met the onus of establishing that a trial is not required in order to determine if Mr. Sobolewski willfully made false statements to Aviva with respect to his accident claim.\ [ 64 ] To the extent there were inconsistencies arising from Mr. Sobolewski’s statements on November 17, 2005 and November 30, 2005 shortly after being release from hospital, I am unable to dismiss out of hand Mr.

Sobolewski’s evidence that he was suffering from cognitive difficulties on those occasions, which may explain some of the inconsistencies cited. As well, the contrast between Mr. Sobolewski’s account of event and that provided by Ms. Margani in her statement and affidavit is ameliorated somewhat by the responses on her cross-examination. In all the circumstances, the trial judge would be better situated to make the credibility findings required based on oral testimony to determine whether Aviva is able to establish the serious allegation that Mr.

Sobolewski made false statements to Aviva with respect to his claim and that he did so willfully. IV. Conclusion [ 65 ] For the foregoing reasons, I have concluded that Aviva has not met the onus of establishing that there is no genuine issue requiring a trial in each of the two actions. Accordingly, Aviva’s motions for

summary judgment are dismissed. [ 66 ] If the parties are unable to agree on costs, Plaintiff’s counsel shall serve and file brief written submissions (not to exceed three pages) together with a cost outline within 14 days. Defendants’ counsel will have an opportunity to respond with brief written submissions within 14 days of receipt of Plaintiff’s submissions. Plaintiff’s counsel will have an opportunity to reply with brief written submissions within seven days of receipt of the Defendant’s submissions.

The parties are free to vary this timetable if they so agree, in which case they are to so advise the Trial Coordinator of the revised timetable. _________________________________ The Honourable Mr. Justice R.A. Lococo DATE: July 5, 2013 CITATION: Sobolewski v. Aviva Canada Inc., 2013 ONSC 4598 (COURT FILE NO.: 08-2265 and 07-34062 DATE: 2013/07/05

SUPERIOR COURT OF JUSTICE - ONTARIO RE: Stefan Sobolewski (Plaintiff) v. Aviva Canada Inc. (Defendant) (1 st action) Stefan Sobolewski et al (Plaintiffs) v. Lawrence Estate et al (Defendants) (2 nd action) BEFORE: The Honourable Mr. Justice R.A. Lococo COUNSEL: James Cavanagh, for the Plaintiffs Cara L. Boddy, for the Defendant (#08-2265) Brian G. Sunohara, for the Defendants, Pilot Insurance Company and Aviva Canada Inc. (#07-34062) ENDORSEMENT Lococo J. DATE: July 5, 2013