Dowe v. Richards et al.,

• Jurisdiction: Nova Scotia
• Judge: Bateman,Chipman,Glube,Hart,Roscoe
• Neutral Citation: 1999 NSCA 130
• Subject Matter: INSURANCE
• Citation: 1999 NSCA 130,(1999), 180 N.S.R.(2d) 179 (CA),180 NSR(2d) 179,(1999), 180 NSR(2d) 179 (CA),180 N.S.R.(2d) 179
• Date: 14 October 1999
• Court: Court of Appeal of Nova Scotia (Canada)

Dowe v. Richards (1999), 180 N.S.R.(2d) 179 (CA);

 557 A.P.R. 179

MLB headnote and full text

Temp. Cite: [1999] N.S.R.(2d) TBEd. NO.010

Ronald A. Richards and Denise Surette (appellants) v. Troy A. Dowe (respondent) and Zurich Canada Limited added pursuant to the Insurance Act, R.S.N.S. 1989, c. 231, s. 133(14) (third party)

(CA 156889; 1999 NSCA 130)

Indexed As: Dowe v. Richards et al.

Nova Scotia Court of Appeal

Glube, C.J.N.S., Hart, Chipman, Roscoe and Bateman, JJ.A

November 4, 1999.

Summary:

Dowe sued for damages for injuries suf­fered in an accident involving a car owned by Richards but registered and insured in Surette's name. The parties applied under s. 216 of the Motor Vehicle Act to determine whether Surette's insurer was obligated to respond to Dowe's claim where Surette had misrepresented to the insurer that she owned the car.

The Nova Scotia Supreme Court, in a decision not reported in this series of reports, held that the insurer was not obligated to respond to the claim. The parties appealed by way of stated case to determine: (1) whether Surette's misrepresentation as to ownership resulted in the policy being void ab initio and the insurer not having to re­spond to the claim; and (2) if the policy was in effect at the time of the accident, was Richards driving with Surette's consent and was the insurer obligated to respond to the claim.

The Nova Scotia Court of Appeal held that (1) the policy was not void ab initio and (2) Richards was driving with Surette's consent and the insurer was obligated to respond to the claim.

Insurance - Topic 3307

Payment of insurance proceeds - Actions - Defences - Misrepresentation in application - Section 133(1) of the Insurance Act provided that a person who had obtained judgment for damages for injuries sus­tained in a motor vehicle accident could sue the defendant's insurer for payment - Section 133(5) provided that it was not a defence that an instrument issued as a motor vehicle liability policy was not such a policy - The Nova Scotia Court of Ap­peal held that an insured's misrepresenta­tion as to ownership of the insured vehicle did not result in the policy being void ab initio - Section 133(5) removed the de­fence that the document purporting to be a policy was not actually a policy or that it was not an "owner's policy" - All that was required for the third party to have the insurance money payable towards his or her judgment was that there be an instru­ment issued as a motor vehicle policy - See paragraphs 14 to 20.

Insurance - Topic 4603

Automobile insurance - Actions by third parties against insurer on public liability policy - Defence by insurer respecting extent or validity of coverage or policy - [See Insurance - Topic 3307 ].

Insurance - Topic 4604

Automobile insurance - Actions by third parties against insurer on public liability policy - Whether driver was an "insured" - Dowe sued for damages for injuries suf­fered in an accident involving a car owned and driven by Richards but registered and insured in Surette's name - Surette had misrepresented to the insurer that she was the owner of the car - The insurer denied liability on the basis that Surette could not have consented to Richards driving the car because she did not have control of the car (Insurance Act, s. 114) - The Nova Scotia Court of Appeal rejected the assertion - Surette knew that Richards would drive the car - While mere knowledge might not be sufficient, tacit approval and ac­knowledgment was inherent in the agree­ment to participate in the fraud - This amounted to consent - See paragraphs 21 to 26.

Insurance - Topic 4612

Automobile insurance - Actions by third parties against insurer on public liability policy - Defence - Vehicle driven without insured's consent - [See Insurance - Topic 4604 ].

Cases Noticed:

Wolfe v. Oliver, Oliver and Co-Operative Fire and Casualty Co. (1974), 8 N.S.R.(2d) 313 (C.A.), disagreed with [para. 4].

Llewellyn Estate et al. v. Neault Estate (1990), 101 N.S.R.(2d) 387; 275 A.P.R. 387 (C.A.), refd to. [para. 4].

Ontario (Minister of Transport) et al. v. London & Midland General Insurance Co., [1971] 3 O.R. 147 (C.A.), refd to. [para. 4].

Campanaro v. Kim et al. (1998), 112 O.A.C. 171 (C.A.), agreed with [para. 4].

Bourgeois et al. v. Prudential Assurance Co., [1946] 1 D.L.R. 139 (N.B.C.A.), refd to. [para. 6].

Comer v. Bussell et al., [1940] 1 D.L.R. 97 (Ont. C.A.), affd. [1940] 3 D.L.R. 417 (S.C.C.), refd to. [para. 7].

Lawrence v. Powell et al. (1977), 28 N.S.R.(2d) 167; 43 A.P.R. 167 (T.D.), refd to. [para. 9].

Wolfe v. Oliver, Oliver and Co-Operative Fire and Casualty Co. (1974), 8 N.S.R.(2d) 313 (C.A.), disagreed with [para. 10].

Virani v. Edwards et al. (1999), 244 A.R. 55; 209 W.A.C. 55 (C.A.), refd to. [para. 12].

Jivraj v. Edwards - see Virani v. Edwards et al.

Stevens v. Bowser, Mitchell and Stanstead & Sherbrooke Insurance Co. (1974), 18 N.S.R.(2d) 440; 20 A.P.R. 440 (T.D.), refd to. [para. 14].

Sibbins v. Atkins et al. (1982), 53 N.S.R.(2d) 599; 109 A.P.R. 599 (T.D.), refd to. [para. 14].

MacNeil v. Cameron (1988), 86 N.S.R.(2d) 44; 218 A.P.R. 44 (T.D.), refd to. [para. 14].

Thornhill v. Bennett (1985), 55 Nfld. & P.E.I.R. 81; 162 A.P.R. 81 (Nfld. C.A.), agreed with [para. 17].

Statutes Noticed:

Insurance Act, R.S.N.S. 1989, c. 231, sect. 114 [para. 22]; sect. 133(5) [para. 5].

Authors and Works Noticed:

Driedger, Elmer A., Construction of Stat­utes (3rd Ed. 1994), p. 163 [para. 18].

Counsel:

Michael E. Dunphy, for the appellants;

David A. Graves, for the respondent;

Robert L. Barnes, Q.C., for the third party.

This appeal was heard on October 14, 1999, by Glube, C.J.N.S., Hart, Chipman, Roscoe and Bateman, JJ.A., of the Nova Scotia Court of Appeal. Roscoe, J.A., deliv­ered the following judgment for the court on November 4, 1999.