Allstate Insurance Co. of Canada v. Byrne (G.T.) Ltd., (1991) 54 O.A.C. 146 (DC)

• Judge: O'Driscoll, Hartt and O'Brien, JJ.
• Court: Ontario Court of Justice General Division (Canada)
• Case Date: November 06, 1991
• Jurisdiction: Ontario
• Citations: (1991), 54 O.A.C. 146 (DC)

Allstate Ins. Co. v. Byrne Ltd. (1991), 54 O.A.C. 146 (DC)

MLB headnote and full text

Allstate Insurance Company of Canada (plaintiff) v. G.T. Byrne Ltd. (defendant) and Darren W. MacDonald (defendant/respondent) and The Co-operators Group Ltd. (third party/appellant)

(No. 7500B/87)

Indexed As: Allstate Insurance Co. of Canada v. Byrne (G.T.) Ltd.

Ontario Court of Justice

General Division

Divisional Court

O'Driscoll, Hartt and O'Brien, JJ.

December 5, 1991.

Summary:

This case arose out of third party actions to determine liability under an automobile insurance policy. The insurer defended on the grounds, inter alia, that there was a change material to the risk and that the policy was not in force due to a late pay­ment of premium. The Ontario District Court held the insurer liable - see paragraphs 15 to 28 below. The insurer appealed.

The Ontario Divisional Court dismissed the appeal.

Insurance - Topic 1130

The insurance contract - The policy period - Renewals, effect of late payment - An insurer defended on the basis that a policy was not renewed due to a late payment of premium - On several occasions the insurer had accepted late payment and had back dated the policy - The Ontario Divi­sional Court held that the insured was entitled to rely on past experience and that there was coverage at the time of the claim - See paragraphs 2 to 4 and 24.

Insurance - Topic 1854

The insurance contract - Interpretation of the contract - History of dealings - [See Insurance - Topic 1130 ].

Insurance - Topic 4015

Automobile insurance - Liability policy - Risk - Change material to risk - Byrne was carrying on two businesses, one at Woodstock, Ont., and the other at Inger­soll, Ont. - An employee of the Ingersoll business was in an accident while driving a truck that was insured in the name of the Woodstock business - The Woodstock business was in the process of winding down and the truck at the time of the accident was being used by the Ingersoll business - The two businesses were simi­lar but not identical - The Ontario Divi­sional Court affirmed that there was no change material to the risk - See para-graphs 6 to 8 and 21.

Insurance - Topic 4331

Automobile insurance - Exclusions - Rental or lease of vehicle - Byrne was carrying on two businesses, one at Wood­stock, Ont., and the other at Ingersoll, Ont. - An employee of the Ingersoll business was in an accident while driving a truck that was insured in the name of the Woodstock business - There was no lease agreement between the two businesses - The Ontario Divisional Court affirmed that there was no lease or rental in violation of the terms of the policy - See paragraphs 9 to 13 and 22.

Cases Noticed:

Hood v. Home Insurance Co., [1964] I.L.R. 1-126; 50 W.W.R. 1 (B.C.S.C.), dist. [para. 21].

Poapst v. Madill, [1973] 2 O.R. 80; 33 D.L.R.(3d) 36; [1973] I.L.R. 1-521, dist. [para. 21].

Seymour v. Wagstaff (1984), 4 C.C.L.I. 75; 24 M.V.R. 295; 52 N.B.R.(2d) 86; 137 A.P.R. 86 (Q.B.), refd to. [para. 23].

Parker v. Constitution Insurance Co. of Canada (1983), 43 O.R.(2d) 545; 3 C.C.L.I. 56; 2 D.L.R.(4th) 109; [1984] I.L.R. 1-1721 (H.C.J.), folld. [para. 25].

Counsel:

W. Graydon Sheppard, for the third party/appellant;

Linda M. Elliott, for the defen­dant/respondent Darren W. MacDonald.

This appeal was heard by O'Driscoll, Hartt and O'Brien, JJ., of the Ontario Divisional Court on November 6, 1991. The decision of the court was delivered orally by O'Brien, J., on December 5, 1991.