Groves v. Pembridge Insurance Co., (2005) 252 Nfld. & P.E.I.R. 67 (NLTD)

• Judge: Lang, J.
• Court: Supreme Court of Newfoundland and Labrador (Canada)
• Case Date: November 08, 2005
• Jurisdiction: Newfoundland and Labrador
• Citations: (2005), 252 Nfld. & P.E.I.R. 67 (NLTD)

Groves v. Pembridge Ins. (2005), 252 Nfld. & P.E.I.R. 67 (NLTD);

    756 A.P.R. 67

MLB headnote and full text

Temp. Cite: [2005] Nfld. & P.E.I.R. TBEd. NO.018

Trevor Groves (plaintiff) v. Pembridge Insurance Company (defendant)

(2004 01T 0339; 2005 NLTD 182)

Indexed As: Groves v. Pembridge Insurance Co.

Newfoundland and Labrador Supreme Court

Trial Division

Lang, J.

November 8, 2005.

Summary:

Groves was injured while riding in a car driven by Sooley. He and Sooley had been drinking and Sooley had been speeding, but they agreed to say that the accident was caused when Sooley swerved suddenly to avoid a moose. Sooley was uninsured. Groves made a claim under his own insurance. Pembridge denied Groves's claim. Groves sued Pembridge, repeating the lie in his initial claim but recanting later in discovery. Pembridge applied for summary judgment dismissing Groves's claim on the basis that he had no right to compensation due to the false statement.

The Newfoundland and Labrador Supreme Court, Trial Division, dismissed the application.

Insurance - Topic 3305

Payment of insurance proceeds - Actions - Defences - False statement by insured respecting claim - Groves was injured while riding in a car driven by Sooley - They had been drinking and speeding, but they agreed to say that the accident was caused by a moose - Groves repeated the lie in a Section B no-fault claim under his policy with Pembridge - When Groves learned that Sooley was uninsured, he changed his claim to Section D (uninsured motorist) - The claim was denied - Groves sued for damages - He repeated the lie but recanted three months later in discovery - Pembridge applied for summary judgment submitting that Groves had violated s. 7 of the Automobile Insurance Act regarding false statements and had no right to compensation - The Newfoundland and Labrador Supreme Court, Trial Division, dismissed the application - There were two genuine issues - First, whether Groves had forfeited his right to compensation by making false statements - Second, whether, if the claim were not forfeited, Groves was entitled to compensation - Even where there were genuine issues, the court could grant summary judgment unless the judge was unable to find the necessary facts or it would be unjust to do so - Here, the necessary facts were lacking - The determination of credibility required viva voce evidence - Groves clearly made a false statement but it was unclear whether that related to his Section B or Section D claim.

Practice - Topic 5702

Judgments and orders - Summary judgments - Jurisdiction or when available or when appropriate - [See Insurance - Topic 3305 ].

Cases Noticed:

Ultramar Canada Inc. v. Atjem Holdings Ltd. (1995), 133 Nfld. & P.E.I.R. 31; 413 A.P.R. 31 (Nfld. T.D.), refd to. [para. 10].

Standard Trust Co. (Liquidation) v. Bank of Nova Scotia et al. (1998), 172 Nfld. & P.E.I.R. 69; 528 A.P.R. 69 (Nfld. T.D.), refd to. [para. 12].

Marco Ltd. v. Newfoundland Processing Ltd. et al. (1995), 130 Nfld. & P.E.I.R. 317; 405 A.P.R. 317 (Nfld. T.D.), refd to. [para. 13].

Russell v. Bursey et al. (1995), 132 Nfld. & P.E.I.R. 239; 410 A.P.R. 239 (Nfld. T.D.), refd to. [para. 14].

Guarantee Co. of North America v. Gordon Capital Corp., [1999] 3 S.C.R. 423; 247 N.R. 97; 126 O.A.C. 1, refd to. [para. 18].

Brown v. Insurance Corp. of British Columbia, [2004] I.L.R. 1-4300; 196 B.C.A.C. 204; 322 W.A.C. 204; 49 M.V.R.(4th) 1; 9 C.C.L.I.(4th) 168; 28 B.C.L.R.(4th) 93; 2004 BCCA 254, refd to. [para. 52].

Gilchuk et al. v. Insurance Corp. of British Columbia, [1994] I.L.R. 1-3001; [1994] 1 W.W.R. 572; 30 B.C.A.C. 317; 49 W.A.C. 317; 82 B.C.L.R.(2d) 145; 48 M.V.R.(2d) 58; 17 C.C.L.I.(2d) 315; 106 D.L.R.(4th) 742 (C.A.), refd to. [para. 52].

Fudge et al. v. Co-Operative Fire and Casualty Co. (1976), 15 Nfld. & P.E.I.R. 285; 38 A.P.R. 285 (Nfld. T.D.), refd to. [para. 56].

Inland Kenworth Ltd. v. Commonwealth Insurance Co. (1990), 48 B.C.L.R.(2d) 305 (C.A.), refd to. [para. 59].

Statutes Noticed:

Automobile Insurance Act, R.S.N.L. 1990, c. A-22, sect. 7(1)(c) [para. 3].

Rules of Court (Nfld. & Lab.), Supreme Court Rules, rule 17A.01(1) [para. 4]; rule 17A.02(1) [para. 5]; rule 17A.03 [para. 6]; rule 17A.03(2) [para. 7].

Insurance (Motor Vehicle) Act, R.S.B.C. 1996, c. 231, sect. 18(1)(e) [para. 57].

Counsel:

D. Bradford L. Wicks, for the plaintiff;

William Goodridge, Q.C., for the defendant.

This application was heard in St. John's, Newfoundland and Labrador, by Lang, J., of the Newfoundland and Labrador Supreme Court, Trial Division, who delivered the following judgment on November 8, 2005.