LaPierre v. General Accident Assurance Co. of Canada et al., 2007 NSSC 9

• Judge: Warner, J.
• Court: Supreme Court of Nova Scotia (Canada)
• Case Date: December 11, 2006
• Jurisdiction: Nova Scotia
• Citations: 2007 NSSC 9;(2007), 250 N.S.R.(2d) 304 (SC)

LaPierre v. General Accident (2007), 250 N.S.R.(2d) 304 (SC);

    796 A.P.R. 304

MLB headnote and full text

Temp. Cite: [2007] N.S.R.(2d) TBEd. JA.024

Gaetan Joseph LaPierre (plaintiff) v. The General Accident Assurance Company of Canada and D. Foster Insurance Services Limited (defendants)

(S.K. 193310; 2007 NSSC 9)

Indexed As: LaPierre v. General Accident Assurance Co. of Canada et al.

Nova Scotia Supreme Court

Warner, J.

January 11, 2007.

Summary:

The plaintiff was injured in a motor vehicle accident in Guyana. The plaintiff had insurance coverage in Canada from the defendant, including a Family Protection Endorsement (SEF No. 44), which included coverage respecting an under-insured tortfeasor. The plaintiff sued to enforce a claim under the Endorsement. The defendant denied coverage, relying on the territorial limit of the general provisions of the standard automobile insurance policy. At issue was whether the territorial limit in the policy applied to the Endorsement and whether the plaintiff established that the Guyana vehicle was under-insured.

The Nova Scotia Supreme Court dismissed the plaintiff's action. The claim was excluded by the territorial limit provision of the policy, which clearly applied to the Endorsement. In any event, the claim would fail because the plaintiff failed to establish that the Guyana tortfeasor was under-insured.

Estoppel - Topic 1156

Estoppel in pais (by conduct) - Representation - By conduct - Silence or standing by - General - The plaintiff was injured in a motor vehicle accident in Guyana - He claimed under the under-insured coverage of the Family Protection Endorsement in his automobile insurance policy - The Endorsement required that the plaintiff provide "if so required" details of any policies of insurance to which he might have recourse - When the insurer was notified of the claim, details of the Guyana tortfeasor's insurance was not provided - When the insurer finally requested the details 4.5 years later, the information was unavailable - The plaintiff submitted that the insurer was estopped by its silence and inaction from now requiring that the plaintiff provide details of the tortfeasor's insurance as a precondition to liability under the Endorsement - The Nova Scotia Supreme Court agreed that the plaintiff had no duty to provide the insurance details until requested by the insurer - The delay prejudiced the plaintiff, but there was no evidence that the insurer's inaction was intended to induce the plaintiff not to obtain the details, which a prudent plaintiff would have done - Absent an intention that the plaintiff alter his position with respect to providing details of other insurance to which he had recourse, no estoppel arose - See paragraphs 59 to 86.

Estoppel - Topic 1389

Estoppel in pais (by conduct) - Circumstances where doctrine not applicable - Lack of prejudice or detrimental reliance by person raising estoppel - [See Estoppel - Topic 1156 ].

Insurance - Topic 3710

Automobile insurance - General - Territorial coverage limits - The general provisions of the plaintiff's automobile insurance policy limited its territorial application to the operation of the automobile within Canada or the United States - The plaintiff was injured in an automobile accident in Guyana - He was a passenger - The plaintiff claimed under the Family Protection Endorsement (SEF No. 44) to his policy, which was part of the policy and contained no territorial limits - The insurer denied liability, invoking the territorial limit - The plaintiff argued that the territorial limit did not apply to the Endorsement - The Nova Scotia Supreme Court, applying a grammatical or ordinary meaning to the territorial limit, held that, on its face, the policy excluded coverage because the Guyana vehicle in which the plaintiff was a passenger was an "automobile" as defined in the Endorsement - There was no ambiguity - It was incongruous that the territorial limit, which clearly applied to the entire policy and was not excluded by the Endorsement, would deny the accused benefits if injured in a Guyana accident involving his own automobile (for which he paid a premium) but would provide for benefits for an accident involving a vehicle for which he did not pay a premium - See paragraphs 7 to 58.

Insurance - Topic 3814

Automobile insurance - The contract - Particular terms - "Automobile" defined - [See Insurance - Topic 3710 ].

Insurance - Topic 4102.1

Automobile insurance - Uninsured or underinsured motorist coverage - Underinsured driver defined - The plaintiff was injured in a motor vehicle accident in Guyana - He claimed under the under-insured coverage of the Family Protection Endorsement in his automobile insurance policy - There was no evidence as to whether the Guyana tortfeasor (taxi) had any insurance - The plaintiff's evidence was limited to a letter by a Guyana lawyer outlining the general experience in Guyana (that taxis generally carried the minimum insurance) - The Nova Scotia Supreme Court dismissed the plaintiff's under-insured motorist claim - The Endorsement required evidence of the actual insurance status of the tortfeasor - Absent evidence that the taxi had insurance and what its limits were, there was no proof that the taxi was "under-insured" as opposed to uninsured - The Guyana lawyer's evidence that the taxi "likely" carried $3,000 insurance was not probative of the issue that needed to be decided - See paragraphs 87 to 102.

Cases Noticed:

Lunenburg Industrial Foundry and Engineering Ltd. et al. v. Commercial Union Assurance Co. of Canada et al. (2005), 230 N.S.R.(2d) 249; 729 A.P.R. 249; 2005 NSSC 23, refd to. [para. 14].

Brissette v. Westbury Life Insurance Co., [1992] 3 S.C.R. 87; 142 N.R. 104; 58 O.A.C. 10, refd to. [para. 15].

Reid Crowther & Partners Ltd. v. Simcoe & Erie General Insurance Co., [1993] 1 S.C.R. 252; 147 N.R. 44; 83 Man.R.(2d) 81; 36 W.A.C. 81, refd to. [para. 16].

Consolidated-Bathurst Export Ltd. v. Mutual Boiler and Machinery Insurance Co., [1980] 1 S.C.R. 888; 32 N.R. 488, refd to. [para. 17].

Bell ExpressVu Limited Partnership v. Rex et al. (2002), 287 N.R. 248; 166 B.C.A.C. 1; 271 W.A.C. 1; 2002 SCC 42, refd to. [para. 18].

Sutherland v. Pilot Insurance Co., [2006] O.T.C. 620; 2006 CarswellOnt 4090 (Sup. Ct.), dist. [para. 33].

Wigle et al. v. Allstate Insurance Co. of Canada (1984), 6 O.A.C. 161; 1984 CarswellOnt 26 (C.A.), refd to. [para. 41].

Chilton v. Co-Operators General Insurance Co. (1997), 97 O.A.C. 369; 32 O.R.(3d) 161; 1997 CarswellOnt 360 (C.A.), refd to. [para. 42].

Campbell-MacIsaac et al. v. Deveaux et al. (2004), 224 N.S.R.(2d) 315; 708 A.P.R. 315; 2004 NSCA 87, refd to. [para. 44].

MacIsaac v. Deveaux - see Campbell-MacIsaac et al. v. Deveaux et al.

Pickford & Black Ltd. v. Canada General Insurance Co., [1977] 1 S.C.R. 261; 7 N.R. 585; 14 N.S.R.(2d) 181; 11 A.P.R. 181, refd to. [para. 49].

Radu v. Heartford Fire Insurance Co., [1997] O.J. No. 6356 (Sup. Ct.), refd to. [para. 50].

Ortiz v. Dominion of Canada General Insurance Co. (2001), 139 O.A.C. 180; 2001 CarswellOnt 7 (C.A.), refd to. [para. 50].

Habib Bank Ltd. v. Habib Bank AG Zurich, [1981] 2 All E.R. 650 (C.A.), refd to. [para. 67].

Vaid v. Insurance Corp. of British Columbia (1999), 23 B.C.T.C. 139 (S.C.), refd to. [para. 67].

Pannenbecker v. Dominion of Canada General Insurance Co. and Saskatchewan Government Insurance Office (1978), 13 A.R. 487; 1978 CarswellAlta 286 (C.A.), refd to. [para. 77].

Canadian Bank of Commerce v. London and Lancashire Guarantee & Accident Co., 1958 CarswellOnt 111 (C.A.), refd to. [para. 77].

Caldwell v. Stadacona Fire & Life Insurance Co., 1883 CarswellNS 9 (S.C.C.), refd to. [para. 82].

Cadeddu v. Mount Royal Assurance Co., 1929 CarswellBC 37 (C.A.), refd to. [para. 82].

Uswak v. Insurance Corp. of British Columbia, 1978 CarswellBC 626 (Co. Ct.), refd to. [para. 82].

Hlokoff v. Snodgrass, 1984 CarswellBC 38 (S.C.), refd to. [para. 82].

Zed (Thomas) v. Barristers' Society of New Brunswick (1986), 73 N.B.R.(2d) 422; 184 A.P.R. 422; 1986 CarswellNB 64 (T.D.), refd to. [para. 82].

R. v. Smith (A.L.), [1992] 2 S.C.R. 915; 139 N.R. 323; 55 O.A.C. 321, refd to. [para. 89].

R. v. Wilcox (J.A.) et al. (2001), 192 N.S.R.(2d) 159; 599 A.P.R. 159; 2001 NSCA 45, refd to. [para. 89].

R. v. K.G.B., [1993] 1 S.C.R. 740; 148 N.R. 241; 61 O.A.C. 1, refd to. [para. 89].

R. v. Starr (R.D.) (2000), 258 N.R. 250; 148 Man.R.(2d) 161; 224 W.A.C. 161; 2000 SCC 40, refd to. [para. 90].

R. v. Khan, [1990] 2 S.C.R. 531; 113 N.R. 53; 41 O.A.C. 353, refd to. [para. 90].

R. v. Seaboyer and Gayme, [1991] 2 S.C.R. 577; 128 N.R. 81; 48 O.A.C. 81, refd to. [para. 91].

Mood Music Publishing Co. v. DeWolfe Ltd., [1976] 1 All E.R. 763 (C.A.), refd to. [para. 92].

Dhawan v. College of Physicians and Surgeons (N.S.) (1998), 168 N.S.R.(2d) 201; 505 A.P.R. 201 (C.A.), refd to. [para. 92].

Authors and Works Noticed:

Brown, Craig, and Menezes, Julio, Insurance Law in Canada (Looseleaf), generally [para. 40]; c. 12, p. 12-3 [para. 77].

Counsel:

Mark S. Raftus and Raymond F. Wagner, for the plaintiff;

John Kulik, for the defendant, General Accident Insurance Co. of Canada.

This action was heard on December 11, 2006, at Kentville, N.S., before Warner, J., of the Nova Scotia Supreme Court, who delivered the following judgment on January 11, 2007.