Ontario Court Of Appeal Summaries (April 23 – April 27, 2018)

Below are this week's summaries of the civil decisions of the Court of Appeal for Ontario.

Civil Decisions

2237446 Ontario Inc. (409 Collision Centre) v. Intact Insurance, 2018 ONCA 394

[Hourigan, Huscroft and Nordheimer JJ.A.]

Counsel:

M A Klaiman, for the appellant

L M Carr, for the respondents

Keywords: Contracts, Bailment, Repair and Storage Liens Act, R.S.O. 1990, c. R.25, s. 24, Subrogation, Insurance Act, R.S.O. 1990, c. I.8, s. 278

Facts:

The applicant appeals from the dismissal of its application to have the initial certificate that was obtained by the respondent, Intact Insurance, under s. 24(5) of the Repair and Storage Liens Act, R.S.O. 1990, c. R.25 ("RSLA") declared null and void.

On December 20, 2015, a motor vehicle owned by the respondent, BB, was involved in an accident. It was towed to the storage premises operated by the appellant. On January 6, 2016, Brennan executed a Vehicle Repair and Storage Agreement in which she agreed to pay a storage rate of $85.00 per day. Under her automobile insurance policy, Intact was obliged to reimburse BB for the storage costs.

Intact and the appellant could not agree on the storage charges that were properly due for the storage of the vehicle. Consequently, Intact applied for and received an initial certificate under s. 24 of the RSLA. By virtue of s. 24(6) of the RSLA, once Intact gave the initial certificate to the appellant, the appellant was obliged, within three days of receiving the initial certificate, to release the article described therein to Intact unless, within that period, it filed a notice of objection with the court.

Rather than filing a notice of objection, the appellant brought this application to have the initial certificate declared null and void. The appellant asserted that, since Intact had not paid Brennan for the value of the vehicle, Intact was not, at that time, either the owner of the vehicle, nor was it "any other person entitled to" the vehicle under s. 24(1) of the RSLA. Hence, according to the appellant, Intact was not entitled to obtain the initial certificate.

The application judge found that Intact had "assumed liability" under the contract of insurance and was then subrogated to the rights of its insured under s. 278 of the Insurance Act, R.S.O. 1990, c. I.8. The application judge proceeded from this finding to conclude that Intact was a "person lawfully entitled to" the automobile and thus had the right to obtain an initial certificate under s. 24 of the RSLA.

Issues:

(1) Did the application judge err in dismissing the application to have the insured's initial certificate declared null and void?

Holding: Appeal dismissed.

Reasoning:

(1) No. It is obvious that the intent of the RSLA is to provide an expeditious procedure for dealing with disputes over storage charges that protects both the storage holder and the owner of the item stored. The interpretation that the appellant argues for would effectively require insurers to settle all matters arising out of a motor vehicle accident with its insured, and make the resulting payment, before it would be able to avail itself of the remedies under the RSLA. In the interim, storage charges would continue to accumulate. That interpretation is not one that is harmonious with the object of the RSLA. It is also not one that reflects the realities of the marketplace, in which this statute operates. There will be many occasions where issues will arise between an insured and an insurer under an automobile insurance policy. It would not be to the benefit of either the insured or the insurer to have charges relating to the storage of motor vehicles involved in accidents mount up while those issues are resolved.

Danilova v. Nikityuk, 2018 ONCA 403

[Doherty and Pepall JJ.A. and Gray J. (ad hoc)]

Counsel:

A M Chapman and J Mor, for the appellants

A Dhillon and L Loader, for the respondents, AN and VN

A M Mae and W Thomson for the respondents, YS and YMCA Simcoe/Muskoka

Keywords: Civil Procedure, Evidence, Credibility, Collusion, Procedural Fairness, Adjournments, Prejudice

Facts:

The appellants raise three grounds of appeal. Two concern the trial judge's credibility assessments and the third alleges prejudice resulting from a five-month adjournment in the course of the trial proceedings.

Issues:

(1) Did the trial judge prefer the evidence of the respondents over the appellants in a peremptory manner that failed to demonstrate the...