) ) Lorenzo Girones Plaintiff – v. –, 2013 ONSC 6993

CITATION : Girones v. Allianz Global Risks US Insurance Company, 2013 ONSC 6993 COURT FILE NO.: 18269/12 DATE: 2013-11-14 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: ) ) Lorenzo Girones Plaintiff – and – Allianz Global Risks US Insurance Company and XL Insurance Company Limited Defendants ) ) ) ) ) ) ) ) ) Geoffrey D.E. Adair, for the Plaintiff D. Bruce Garrow, for the Defendants ) ) ) HEARD: October 24, 2013 O’Neill, j Reasons on Motion Part A: Introduction [ 1 ] On October 24, 2013, the Defendants made submissions and argument with respect to their motion to the court for orders: i. To change the place of trial in the main action from Timmins to Toronto, pursuant to Rule 13.1.02(2)(

b) ii. Striking out the jury notice served by the Plaintiff pursuant to s. 108 (2)(

i) of the Courts of Justice Act and Rule 47.02(1)(a); and iii. In the alternative, an order pursuant to s. 106 of the Courts of Justice Act staying the main action and directing the counterclaim proceed without a jury and that the place of trial be Toronto. Part B: Factual Background [ 2 ] The parties largely agree on the background facts (or alternatively statements of positions) which I reproduce below from paragraphs 6 through 20 of the Plaintiff’s factum (other unresolved factual issues are dealt with later in these reasons): 6. The plaintiff was at all material times the owner of a Socata TBM 700 airplane.

The aircraft was insured by the defendant insurers for property damage to its full value of $3.4 million pursuant to insurance policies dates September 10, 2012. The material terms of the insurance policies are identical. 7. The plaintiff had recently purchased the aircraft and had no experience flying in a TBM. The defendants required, as a pre-condition to the insurance policy, that he take additional training. 8. The plaintiff therefore retained Mr. Robert Reany, an experienced pilot and flight instructor, to provide five days of training on the new aircraft.

The training included both in-plane and ground-based instruction. 9. It is the plaintiff’s position in litigation that by October 8, 2012, the plaintiff and Mr. Reany had completed four of their anticipated five days of training. On October 8, the plaintiff requested that Mr. Reany fly the aircraft to Wiarton, Ontario to pick up a training manual needed for the next day’s training. After he retrieved the training manual in Wiarton, Mr. Reany was expected to fly the aircraft to Goderich for re-fuelling and then return to its hangar for safekeeping overnight. Mr. Reany was to return the aircraft to Carp, Ontario

the next morning to meet the plaintiff and continue training. 10. On October 8, while being flown alone by Mr. Reany, the aircraft crashed near Calabogie, Ontario. Mr. Reany sustained fatal injuries in the accident and the aircraft was destroyed. 11. The plaintiff submitted a proof of loss in respect of his claim under the insurance policies on October 24, 2012. 12.

The defendant Allianz Global Risks US Insurance Company (“Allianz”) notified the plaintiff by letter dated November 1, 2012 that his claim was denied as Allianz had determined the loss of his aircraft fell outside the coverage afforded by the policy. 13. In explaining the denial of the claim, Allianz further stated: We understood that at the time of the accident the aircraft was being flown by Bob Reany. It has been reported that Mr. Reany was en route to Goderich for the purpose of picking up his spouse and taking her to Ottawa for Thanksgiving. Mr.

Reany was not an approved pilot whose name was stated in item 5 of the Declaration Page or in an endorsement to the policy. Nor was he flying the aircraft for the purposes contemplated by sub-paragraphs (ii), (iii), or (iv) set out in the policy conditions under the heading Who can Fly Your Aircraft. 14. Sub-paragraph (iv) in the policy conditions under the heading Who Can Fly Your Aircraft provides: The Insurance applies only if you aircraft is flown by: ... (iv) a pilot while providing ab initio instruction to a pilot named in item 5 of the Declaration Page or endorsement. 15.

The plaintiff is named as a pilot in item 5 of the Declaration Page. 16. The plaintiff commenced this action by way of Statement of Claim dated November 9, 2012. The Statement of Claim seeks damages in the amount of $3.4 million, less any applicable deductibles, for breach of contract. 17. The Statement of Claim names Timmins, Ontario as the place of trial. The plaintiff delivered a timely Jury Notice. 18. The defendants expressly deny in the Statement of Defence that they have breached the terms of the insurance contracts. The defendants plead that the coverage afforded by the policies does not apply.

The defendants plead in particular that: On or about October 8, 2012, the plaintiff allowed Robert Reany (“Reany”) to fly the aircraft on his own from Carp, Ontario to Goderich, Ontario for the purpose of returning to his home in Port Elgin, Ontario. 19. The defendants counter-claim for: (

a) A declaration that the coverage afforded by the policies does not apply to the loss of the aircraft; and (

b) A declaration that the defendants are not liable to the plaintiff for the loss claimed under the proof of loss. 20. The defendants have asked that the Counterclaim be tried in Toronto without a jury

Part C: The Issues [ 3 ] i . Should the trial venue be transferred from Timmins to Toronto? [ 4 ] As outlined at para. 9 of the Defendants’ Factum: “The test to be applied requires a fact specific analysis in which all of the factors listed in Rule 13.1.02(2) (

b) are weighed to determine what trial venue will be in the interest of justice.” [ 5 ] In argument, counsel for the Defendants’ submitted that based on the following set of facts, the proceeding ought to be transferred from Timmins to Toronto: i. The insurance policies were issued in Toronto. ii. The Defendants’ counsel practice in Toronto. iii. Three of the four Defendants’ witnesses (underwriters) are from Toronto. iv. Apart from the Plaintiff and his spouse, of the remaining other 9 to 10 witnesses, they are from: - Ottawa - 2 - Goderich - 1 - Port Elgin - 1 - Toronto – 2 (Flight Training Experts)

- Orlando, Florida - 1 v. The Plaintiff and his Spouse have a principal residence in Timmins but they also own a homein Toronto. vi. The Plaintiff has a satellite or sub-legal offices in Ottawa, Sudbury and Toronto. vii. The Counterclaim for the declaratory relief names Toronto as the place of hearing. viii. Toronto has mandatory mediation and case management protocols to be utilized, if necessary,in the within action. [6] The weighing process contemplated by Rule 13.1.02(2) is not one of a mere balancing of convenience.

Put differently, theremust be some issue raised by the moving party which rises about mere inconvenience or a modest expense and results in a finding that achange of trial venue is “in the interests of justice”. [7] In the decision Citroen v. Ontario (Minister of Transportation), [2012] O.J. No. 533 (S.C.J.) the venue was changed fromPeterborough to Hamilton on the basis that the plaintiffs “would experience significant personal hardship having to attend inPeterborough for four weeks due to the physical limitations both appear to have”. [8] In the decision Siemens Canada Ltd. v. Ottawa

(2008) CarswellOnt 5650, the motion court judge concluded that “the courtwill defer to the plaintiff’s choice of venue unless it can be shown that the venue proposed by the defendant is substantially better.” [9] It is to be noted that the within action has been set down for trial and subject to the results on this motion, the Plaintiff iswaiting to attend at a pre-trial settlement conference.

The parties acknowledge that a trial can be scheduled in Timmins sometime in theyear 2014. [10] Weighed against this, there can be no doubt that if this action is transferred to Toronto, it will fall into a considerable backlog. In the decision Ewing (Litigation Guardian of) v. Conte [2013] O.J. No. 3442 the court concluded that if a Barrie action was transferredto Toronto the trial would likely not be held until 2016, given the Superior Court’s backlog. Vallee J. referenced the decision Rushnellv. Belleville [2007] O.J.

No. 4246, where the court stated that “the delay in obtaining a trial date should not, by itself, unless the delay issubstantial, outweigh the overwhelming predominance of convenience and other factors in Rule 13.1.02(2).” [11] In the Ewing decision the motion court judge concluded that the delay caused by a transfer of a Barrie action to Torontowould be more than substantial. [12] On the hearing of the motion before me, counsel for the Plaintiff submitted that of the nine factors to be considered under theabove-noted Rule, only three were relevant to the motion to change the venue: i.

The convenience of the parties, the witnesses and the court; ii. Any advantages or disadvantages of a particular place with respect to securing the just, mostexpeditious and least expensive determination of the proceeding on its merits; and iii. Whether judges and court facilities are available at the other county. [13] It is estimated that the trial of the action may extend to two weeks. In this regard, I bear in mind as follows: i. The Plaintiff’s principal residence is in Timmins. He has lived there with his family for 40years. ii.

The Plaintiff is the sole partner in a personal injury and medical malpractice law firm with sixassociates. Although his cases require him to travel elsewhere in Ontario from time to time, in affidavit materials filed with the court, thePlaintiff indicates that he works exclusively out of his law office in Timmins. iii. The Defendants’ are not disputing the quantum of damages. The damages have been sustainedin Timmins. iv.

The action itself has no particular connection to the City of Toronto apart from issues withrespect to the residence of witnesses and Defence counsel, and the place of issuance of the policies. [14] In my view a transfer of the action from Timmins to Toronto is not desirable in the interests of justice for the followingimportant reasons. Firstly, that the Plaintiff and his spouse have resided in Timmins for 40 years, and that the Plaintiff would not be ableto work out of his principal and main office for a period of approximately two weeks is not to be taken lightly.

It is true that theDefendants’ representatives will incur additional inconvenience and expense if the case is held in Toronto. But it is also important tonote that it is the convenience of the parties, the witnesses and the court to be considered, not the convenience of Plaintiff’s counsel orDefendants’ counsel. In Eveready Industrial Services Corp. v. Jacques Daoust Coatings Management Inc, (ON SC),76 O.R. (3d) 390, Stinson J. stated: In weighing these factors I would discount the cost saving that might accrue to the plaintiff were the case to remain in Toronto.

A partywho chooses to retain counsel who practises in a judicial centre that has no connection with the events in dispute should not be permittedto point to the expense involved in having counsel attend at a trial at a venue closer to the location at which the events occurred asjustification for resisting that transfer. Once again, to give weight to that expense would defeat the purpose of the new rule. [15] It is clear that this action will proceed to trial far more expeditiously in Timmins than in Toronto. The Plaintiffs have already

delivered and served the Expert Report. In submissions, counsel indicated that the pre-trial had been scheduled for November 20, 2013 and that a trial date could be obtained in December.

While I may not be able to accept that the trial would actually proceed in Timmins next month, I have been provided with no evidence to suggest that the trial could not proceed in 2014, if not the first six months of 2014. . [ 16 ] Securing the just, most expeditious and least expensive determination of every civil proceeding on its merits is a rule which is also known as the “General Principle” rule set out at Rule 1.04(1) of the Rules of Civil Procedure.

By that measure, access to justice in a timely manner weighs more favourably with a trial occurring in Timmins, rather than in Toronto. [ 17 ] While I agree that several witnesses will be required to travel from Toronto to Timmins, including Defence counsel themselves, if these circumstances alone met the required standard, the backlog of civil cases in Toronto would become longer, thereby compounding the issue of delay. [ 18 ] Having analyzed and considered the factors listed in the rule, I am not able to conclude that a transfer of the action from Timmins to Toronto is desirable in the interests of justice.

Further, but stated differently, while inconvenience and additional expense will result to the Defendants with the action remaining in Timmins, I am not able to conclude that the venue proposed by the Defendants is or will be substantially better. [ 19 ] ii. Should the jury notice be struck? [ 20 ] In their factum, the Defendants stated that in essence, the claim and counterclaim were for declaratory relief within the meaning of s. 108 of the Courts of Justice Act , such that the issues must be assessed by a judge alone.

At para. 11 of their factum, the Defendants stated: Where the plaintiff and the insurer want to know what the contract of insurance means in order to determine the existence or non- existence of a legal state of affairs, the substance of relief being sought is declaratory relief.” [ 21 ] The private aircraft insurance policy issued to the Plaintiff is found at Tab 2a of the Motion Record of the Defendants dated July 18, 2013.

Both the Plaintiff and the Defendants agree that the clause or provision in dispute in the action is found under a portion of the policy dealing with conditions which states: ...”the Insurance applies only if your aircraft is flown by: ... iv. a pilot while providing ab initio instruction to a pilot named in item 5 of the Declaration Page or Endorsement;” [ 22 ] The Defendants indicated on the motion that the proof of loss submitted by the Plaintiff was declined on the basis or on the grounds that the accident fell outside the coverage provided by the Defendants, as the deceased pilot Reany was not an approved pilot under the aviation policy.

The Defendants further submitted that a court must look behind the pleadings to determine in essence whether the Plaintiff is seeking damages based on breach of an insurance contract, or a declaration that the insurance policy is wide enough to provide coverage for the occurrence. Accordingly, the Defendants submitted that only a judge could look at

article iv as a matter of law to construe this portion of the policy and to legally interpret the clause. Thus, the Defendants submitted that a jury must be dispensed with in an action that was in essence a proceeding to secure a declaration. [ 23 ] I am not able to agree with these submissions in the context of this action. Firstly, the insurance policy at issue in this case cannot be interpreted in a vacuum. On the motion, counsel for the Plaintiff submitted that the Plaintiff’s two experts have prepared a report which gives explanation and background in the aviation world, to the terms “ab initio instruction”.

Counsel submitted that those reports concluded that in the aviation world, such ab initio instruction, even in the context of the within action, need not involve or place the student pilot in the air with the training pilot at all times. [ 24 ] Further, in their submissions on the motion, both counsel agreed that it would be important, in the overall context of the case, for the court to examine the reasons or reason why the training pilot Reany was flying the aircraft on his own, and to what place or location he was intending to fly to and land the plane.

I agree with the Plaintiff’s counsel that in this action, the surrounding facts and circumstances will have to be examined in order to properly interpret the insurance policy and the applicable provisions of the policy. [ 25 ] On the trial of this action, having regard to the substance of the expert reports outlined on the motion by the Plaintiff’s counsel, the trier of fact may well have to decide a number of factual issues in dispute. These may include some of those outlined at para. 51 of the Plaintiff’s factum which I summarize as follows: i. What was the purpose for which Mr.

Reany was flying the airplane on the occasion in question? Was he flying to Wiarton, Ontario to pick up a training manual and then to Goderich to refuel, or was he returning to his home in Port Elgin? ii. Was the flight by Mr. Reany for the purpose of obtaining a manual and refuelling in Goderich, Ontario connected to or a part of ab initio training as those words are understood in the aviation world and in the context of the policy of insurance? iii.

What occurred between the parties by way of pre-contractual discussions that bears on their intentions and expectations in respect of the phrase ab initio training contained in the policies of insurance? [ 26 ] At some point in this proceeding, a judge will be required to legally interpret the insurance policy and the provision in question. And depending upon how the trial proceeds it remains open for a judge to discharge the jury on his or her motion or on the motion of either of the parties.

In my view, it is too premature for the jury to be discharged and removed at this time. [ 27 ] I also conclude that if the Plaintiff’s action is ultimately dismissed, declaratory relief is not necessary. Alternatively, if the

Plaintiff’s action is allowed, declaratory relief will not be granted. [28] iii. The Issue with Respect to Declaratory Relief [29] In considering a motion to strike a jury notice, the motions judge must look beyond the technical wording of the pleading tothe true nature of the relief requested. Words inserted in the pleading for the sole purpose of denying another party a right to a jury trialwill not be given effect. Thibault v. Empire Life [2012] O.J. No. 1527, para.11 Harrison v.

Antonopoulos, (2002) (ON SC), 62 O.R. (3d) 463, para.13 [30] In the Thibault case, supra, Thorburn J concluded that the interplay of facts and law in that case were sufficiently complexsuch that the jury was struck. In addition, the judge determined that as the case would involve the assessment of two actuarial reportsand a forensic accounting report involving entries in a general ledger account over a 16 year period, hundreds of pages and exhibits andthree weeks of testimony would have to be reviewed.

Forty one questions were proposed to be put to the jury. [31] In my view, the “interplay of facts and law” in this case is not so complex that I ought to exercise my discretion to strike thejury. Nor is this the type of case where a jury will have to spend weeks, if not months of trial, reviewing numerous accounting evidenceaccumulated over a lengthy number of years. [32] I conclude that the essence of the relief requested by the Plaintiff is a declaration of fact for the purpose of obtaining coerciverelief and damages as against the Defendants.

I further conclude that in determining whether the Defendants have breached theinsurance contract in question, the underlying factual issues in dispute will have to be analyzed and answered. These underlyingquestions and issues are not so complex that I ought to exercise my discretion to discharge the jury.

Further, unlike in the Thibaultdecision, where Thorburn J. found that the essence of the claim was a determination as to whether there was a valid agreement and if so,what the rights and obligations of the parties were, I conclude that the essence of the relief claimed in this action is a claim for damagesbased on breach of a policy of insurance. [33] On the argument of the motion, counsel for Defendants submitted that as the Plaintiff was a well known Timmins resident, itmight not be possible, in any event, to secure an impartial civil jury to hear the action. My answer to that submission is short.

I amsatisfied that population of the District of Cochrane is sufficient such that a sizable panel can be summoned from which a fair andimpartial jury can be selected. Further, courts ought to be very careful in discharging a jury on the grounds of a person’s popularity ornotoriety in a community. [34] Accordingly, for all of these reasons, the Defendants’ motion is dismissed. The Plaintiff is entitled to his costs of this motionon the partial indemnity scale. If the parties cannot agree on those costs, I will determine them and fix them on receipt of writtensubmissions.

In the event that an agreement cannot be reached, the Plaintiff shall file his cost submissions and a bill of costs byNovember 27, 2013 with the Trial Coordinator at Parry Sound. The Defendants shall file their written response with the TrialCoordinator by December 7, 2013. [35] Order accordingly. O’Neill, J. Released: November 14, 2013 CITATION: Girones v. Allianz Global Risks US Insurance Company, 2013 ONSC 6993

ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: Lorenzo Girones Plaintiff – and – Allianz Global Risks US Insurance Company and XL Insurance Company Limited Defendants REASONS ON MOTION O’NEILL,J Released: November 14, 2013