Fletcher v. Manitoba Public Insurance Co., (1989) 32 O.A.C. 81 (CA)

• Judge: Blair, Morden and Finlayson, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: March 21, 1989
• Jurisdiction: Ontario
• Citations: (1989), 32 O.A.C. 81 (CA)

Fletcher v. MPIC (1989), 32 O.A.C. 81 (CA)

MLB headnote and full text

Thomas John Fletcher and Cheryl Elizabeth Fletcher (plaintiffs/respondents) v. Manitoba Public Insurance Company (defendant/appellant)

(No. 351/87)

Indexed As: Fletcher v. Manitoba Public Insurance Co.

Ontario Court of Appeal

Blair, Morden and Finlayson, JJ.A.

March 21, 1989.

Summary:

The insured and his wife were seriously injured in an automobile accident. In separate proceedings the insured and his wife sued Piche successfully for damages, but the award exceeded Piche's automobile insurance policy liability limit of $500,000. At the time of the accident the insured was covered by an automobile policy is sued by the Manitoba Public Insurance Company (MPIC). The policy did not provide underinsured motorist protection, although such coverage was available from MPIC. If the insured had purchased such coverage he would have been entitled to recover $887,090 from MPIC. The insured and his wife commenced an action against MPIC for damages, alleging that MPIC breached its duty to the insured by not doing more to inform him of the availability of underinsured motorist coverage.

The Ontario High Court of Justice, in a decision reported 60 O.R.(2d) 629, allowed the insured's action and ordered the MPIC to pay the $887,090. The MPIC appealed.

The Ontario Court of Appeal, Blair, J.A., dissenting, allowed the appeal and set aside the decision of the trial judge. The Court of Appeal held that there was no breach of duty by the MPIC where, inter alia, the MPIC notified its customers of the availability of underinsured motorist coverage in a flyer and by a sign in its office, the insured's renewal notice indicated that the insured did not have the coverage and the insured did not seek advice regarding the coverage.

Insurance - Topic 724

Insurers - Duties - Duty to inform insured of available coverage - The insured and his wife were seriously injured in an accident with an underinsured motorist - Their Manitoba Public Insurance Company (MPIC) automobile policy did not include underinsured motorist coverage, although such coverage was available - The insured and his wife alleged that MPIC was negligent in not doing more to inform them of the availability and importance of the underinsured motorist coverage - The Ontario Court of Appeal held that MPIC did not breach its duty of care to the insured, where, inter alia, the MPIC informed the insured in a flyer sent out with its policy renewal and on a sign in its premises of the availability of such coverage (although the insured did not read the flyer or the sign), the insured's renewal notice clearly indicated that the insured did not have the coverage and the insured did not ask for advice respecting the coverage.

Insurance - Topic 5181

Automobile insurance - Compulsory government schemes - Uninsured and underinsured motorist coverage - General - [See Insurance - Topic 724 above].

Cases Noticed:

Fine's Flowers Ltd. et al. v. General Accident Assurance Co. of Canada et al. (1977), 17 O.R.(2d) 529 (C.A.), dist. [para. 18 et seq.].

Fletcher and Fletcher v. Manitoba Public Insurance Company (1987), 60 O.R.(2d) 629; 26 C.C.L.I. 236 (H.C.), revsd. [para. 29].

Edgington v. Fitzmaurice (1885), 29 Ch. D. 459, refd to. [para. 47].

Schreiber Brothers Ltd. v. Currie Products Ltd., [1980] 2 S.C.R. 78; 31 N.R. 335, refd to. [para. 47].

Lewis v. Todd et al., [1980] 2 S.C.R. 694; 34 N.R. 1; 115 D.L.R.(3d) 257; 14 C.C.L.T. 294, refd to. [para. 47].

Taylor v. Ankenman and Jaegli Enter prises Inc., [1981] 2 S.C.R. 2; 38 N.R. 354, refd to. [para. 47].

Central Trust Company v. Rafuse and Cordon, [1986] 2 S.C.R. 147; 69 N.R. 321; 31 D.L.R.(4th) 481, refd to. [para. 48].

Norlympia Seafoods Ltd. et al. v. Dale & Co. Ltd., [1983] I.L.R. 1-1688 (B.C.S.C.), refd to. [para. 55].

Carousel Travel Inc. v. Livio Ricci Insurance Broker Ltd. et al., [1987] I.L.R. 1-2156 (Ont. H.C.), refd to. [para. 55].

New Forty Four Mines Ltd. v. St. Paul Fire & Marine Insurance Co. et al. (1984), 56 A.R. 335; 9 C.C.L.I. 91 (Q.B.), refd to. [para. 55].

Jordan House Ltd. v. Honsberger, [1974] S.C.R. 239; 38 D.L.R.(3d) 105, refd to. [para. 56].

Yanquell v. United Services Automobile Association (1987), 238 Cal. Rptr. 870 (Cal. App. 4 Dist.), refd to. [paras. 61-64].

Sjodin v. I.C.B.C., [1987] I.L.R. 1-2150 (B.C.S.C.), refd to. [paras. 61, 65-68].

Gibson v. Government Employees Insurance Company (1984), 208 Cal. Rptr. 511 (Cal. App. 5 Dist.), refd to. [para. 69].

Wigle et al. v. Allstate Insurance Co. of Canada (1984), 49 O.R.(2d) 101, leave to appeal refused, [1985] 1 S.C.R. v; 59 N.R. 73, refd to. [para. 71].

Statutes Noticed:

Automobile Insurance Act, S.M. 1970, c. 102; C.C.S.M., c. A-180, generally [paras. 24, 31].

Insurance Act, R.S.M. 1970, c. I-40; C.C.S.M., c. I-40, sect. 25(1) [para. 32].

Manitoba Public Insurance Corporation Act - see Automobile Insurance Act.

Counsel:

D.H. Rogers, Q.C., and J.D. Strung, for the appellant;

Earl A. Cherniak, Q.C., and Peter W. Kryworuk, for the respondents.

This appeal was heard on October 27 and 28, 1988, before Blair, Morden and Finlayson, JJ.A., of the Ontario Court of Appeal. The decision of the Court of Appeal was released on March 21, 1989, including the following opinions:

Finlayson, J.A. - see paragraphs 1 to 28;

Blair, J.A., dissenting - see paragraphs 29 to 73;

Morden, J.A. - see paragraphs 74 to 99.