Hafeez v. Sunaric, (2015) 336 O.A.C. 187 (DC)

• Judge: Perell, J.
• Court: Superior Court of Justice of Ontario (Canada)
• Case Date: June 17, 2015
• Jurisdiction: Ontario
• Citations: (2015), 336 O.A.C. 187 (DC);2015 ONSC 4065

Hafeez v. Sunaric (2015), 336 O.A.C. 187 (DC)

MLB headnote and full text

Temp. Cite: [2015] O.A.C. TBEd. AU.010

In The Matter Of Fazl Hafeez and Radomir Sunaric

Fazl Hafeez (plaintiff/appellant) v. Radomir Sunaric (defendant/respondent)

(13/184; SC-11-126663; 2015 ONSC 4065)

Indexed As: Hafeez v. Sunaric

Court of Ontario

Superior Court of Justice

Divisional Court

Perell, J.

June 23, 2015.

Summary:

Hafeez sought to enforce an agreement with Sunaric in which Sunaric acknowledged that he was to blame for damaging Hafeez's vehicle and agreed to pay Hafeez "$15,000 minus insurance payment". Hafeez was paid $6,500 by his insurer. A Small Claims judge found that the agreement was not enforceable because there had been no consideration and, in any event, it was barred by s. 263(5) of the Insurance Act. Hafeez appealed.

The Ontario Divisional Court, per Perell, J., allowed the appeal. Hafeez was awarded judgment for $8,500.

Contracts - Topic 2875

Consideration - What constitutes consideration - Forbearance - General - Hafeez sought to enforce an agreement with Sunaric in which Sunaric acknowledged that he was to blame for damaging Hafeez's vehicle and agreed to pay Hafeez "$15,000 minus insurance payment" - Hafeez was paid $6,500 by his insurer - A Small Claims judge found that the agreement was not enforceable because, inter alia, there had been no consideration - The Ontario Divisional Court, per Perell, J., allowed Hafeez's appeal - The judge was wrong to conclude that there was no consideration for the agreement - Hafeez provided consideration by forgoing his right to claim more than $15,000 - In effect, the parties entered into a settlement agreement of Hafeez's property damage claim against Sunaric - See paragraphs 14 and 15.

Insurance - Topic 5010.1

Automobile insurance - Compulsory government schemes - General - Limitation on causes of action - General (incl. when applicable) - [See Insurance - Topic 5010.2 ].

Insurance - Topic 5010.2

Automobile insurance - Compulsory government schemes - General - Limitation on causes of action - Exceptions - Hafeez sought to enforce an agreement with Sunaric in which Sunaric acknowledged that he was to blame for damaging Hafeez's vehicle and agreed to pay Hafeez "$15,000 minus insurance payment" - Hafeez was paid $6,500 by his insurer - A Small Claims judge found that the agreement was not enforceable because, inter alia, it was barred by s. 263(5) of the Insurance Act - The Ontario Divisional Court, per Perell, J., allowed Hafeez's appeal - The property loss compensation scheme introduced by s. 263 precluded tort claims - However, claims in contract were not precluded - The exception for contracts was in s. 263(5)(a.1) - Where there was insurance coverage under s. 263(1) for damage to a plaintiff's vehicle and the plaintiff took advantage of that coverage, then the insured could not sue in tort, but the insured was not precluded from suing for contract claims - The agreement here was a contract to pay damages - Hafeez was awarded judgment for $8,500 - See paragraphs 16 to 34.

Practice - Topic 9852

Settlements - What constitutes a settlement - [See Contracts - Topic 2875 ].

Cases Noticed:

Siena-Foods Ltd. (Bankrupt) v. Old Republic Insurance Co. of Canada et al. (2012), 296 O.A.C. 326; 2012 ONCA 583, refd to. [para. 17].

Clarendon National Insurance et al. v. Candow (2007), 229 O.A.C. 277; 2007 ONCA 680, refd to. [para. 18].

McCourt Cartage Ltd. et al. v. Fleming Estate et al. (1997), 38 O.T.C. 230; 35 O.R.(3d) 795 (Gen. Div.), refd to. [para. 19].

Brouwer v. Frankel, [2004] O.J. No. 5965 (Sup. Ct.), refd to. [para. 26].

McClinton v. Estien, [2003] O.J. No. 5680 (Sup. Ct.), refd to. [para. 29].

Lange v. 882819 Ontario Ltd. et al., [2006] O.T.C. Uned. E55 (Sup. Ct.), refd to. [para. 31].

Harpeet v. Markham (Town), [2006] O.J. No. 2439 (Sup. Ct.), refd to. [para. 32].

Tuttle et al. v. Travelers Indemnity Co. et al. (2005), 196 O.A.C. 266; 75 O.R.(3d) 184 (C.A.), dist. [para. 33].

Statutes Noticed:

Insurance Act, R.S.O. 1990, c. I-8, sect. 263(5) [para. 13].

Authors and Works Noticed:

Waddams, S.M., The Law of Contracts (5th Ed. 2005), pp. 82, 83 [para. 14].

Counsel:

Fazl Hafeez, plaintiff/appellant, self-represented;

Petros Yannakis, for the defendant/respondent.

This appeal was heard on June 17, 2015, by Perell, J., of the Ontario Divisional Court, who delivered the following reasons for decision on June 23, 2015.