Kolmatychi v. Walker and Manitoba Public Insurance Corp., (1981) 28 A.R. 40 (CA)

• Court: Court of Appeal (Alberta)
• Case Date: February 03, 1981
• Jurisdiction: Alberta
• Citations: (1981), 28 A.R. 40 (CA)

Kolmatychi v. Walker (1981), 28 A.R. 40 (CA)

MLB headnote and full text

Kolmatychi v. Walker and Manitoba Public Insurance Corporation (third party)

(13721)

Indexed As: Kolmatychi v. Walker and Manitoba Public Insurance Corp.

Alberta Court of Appeal

Clement, Lieberman, JJ.A. and Cavanagh, J.(ad hoc)

February 3, 1981.

Summary:

This case arose out of the plaintiff's action against the defendant driver for damages arising out of a motor vehicle collision. The defendant added his insurer, the Manitoba Public Insurance Corporation, as third party. Liability of the defendant was admitted, but the insurer refused to indemnify him. The Alberta Court of Queen's Bench in a judgment reported 18 A.R. 374 allowed the defendant's action against the insurer. The insurer appealed.

The Alberta Court of Appeal dismissed the appeal and affirmed the liability of the insurer.

Insurance - Topic 5084

Automobile insurance - Compulsory government schemes - Exclusions - Change of residence of insured - A Manitoba driver, insured by the Manitoba Public Insurance Corp., moved to Alberta and had an accident - The insurer denied liability, because under Manitoba law the insured's coverage ceased, when he failed to register his vehicle as required under Alberta law - However, under Manitoba law the insurer was estopped from raising defences, which would not be available, if the policy was issued in Alberta - The Alberta Court of Appeal held that the insurer was liable to indemnify the insured, because in Alberta there was no automatic termination of coverage upon residence change.

Cases Noticed:

Sifton v. Sifton, [1938] A.C. 656, appld. [para. 13].

Stoke-on-Trent Borough Council v. Cheshire County Council, [1915] 3 K.B. 699, appld. [para. 13].

Halliday, Ottawa v. Elgin, Re, [1945] 2 D.L.R. 411, appld. [para. 13].

Pannenbecker v. Dominion of Canada General Insurance Company and Saskatchewan Government Insurance, 13 A.R. 487; [1979] 1 W.W.R. 636, appld. [para. 17].

Cunningham et al. v. The Manitoba Public Insurance Corporation, [1979] 5 W.W.R. 397, appld. [para. 18].

MacDonald v. Proctor et al. (1978), 86 D.L.R.(3d) 455, appld. [para. 19].

Mount Albert Borough Council v. Australian Temperance and General Mutual Life Assurance Society Limited, [1938] A.C. 224, consd. [para. 19].

Gervais Estate v. Ash et al., [1978] I.L.R. 1-984 1056; 12 A.R. 580, appld. [para. 20].

Statutes Noticed:

Automobile Insurance Act, S.M. 1970, c. 102, sect. 28, sect. 30 [para. 7]; sect. 31(4) [para. 10]; sect. 53 [para. 9].

Insurance Act, R.S.M. 1970, c. I-40, sect. 26 [para. 8].

Motor Vehicle Administration Act, S.A. 1973, c. 68, sect. 34(1)(a), sect. 34(3) [para. 9]; sect. 68(4) [para. 10]; sect. 288, stat. cond. 8(1)(a) [para. 11]; sect. 301(1) [para. 16].

Counsel:

H.O. Moffet, for the appellant;

C.R. Ford, for the Administrator of the Motor Vehicle Administration Act.

This case was heard before CLEMENT, LIEBERMAN, JJ.A., and CAVANAGH, J. (ad hoc), of the Alberta Court of Appeal.

On February 3, 1981, CLEMENT, J.A., delivered the following judgment for the Court of Appeal: