Shah et al. v. Becamon et al., (2009) 246 O.A.C. 24 (CA)

• Judge: Laskin, MacPherson and Armstrong, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: January 05, 2009
• Jurisdiction: Ontario
• Citations: (2009), 246 O.A.C. 24 (CA);2009 ONCA 113

Shah v. Becamon (2009), 246 O.A.C. 24 (CA)

MLB headnote and full text

Temp. Cite: [2009] O.A.C. TBEd. FE.037

Mian Daud Shah, Mian Sa'ad Shah, Mian Asad Shah, Zarlasht Shah, Mian Yusuf Shah, Farhana Shah, Mian Farooq Shah and Almas Chinoy (plaintiffs) v. Bethily Becamon , Leon Kornbluth, Gilda Kornbluth and World Bagel Limited (defendants/respondent) and Wawanesa Mutual Insurance Company (third party/appellant)

(C47337; 2009 ONCA 113)

Indexed As: Shah et al. v. Becamon et al.

Ontario Court of Appeal

Laskin, MacPherson and Armstrong, JJ.A.

February 6, 2009.

Summary:

Becamon drove alone to a strip mall, in contravention of a condition of her driver's licence that she had to be accompanied by a fully licensed driver. In parking her vehicle, she hit a pedestrian, who sued her for damages. Statutory condition 4(1) of her vehicle insurance policy (Wawanesa) provided that Becamon not drive unless "authorized by law". She was charged under the Highway Traffic Act with driving in contravention of two statutory conditions, including 4(1). She pleaded guilty and paid a fine. In the civil action, Wawanesa refused to defend or indemnify her on the basis that she breached 4(1). Wawanesa's position was that the strip mall was a "highway" as defined in s. 1(1) of the Act, thus triggering Becamon's non-compliance with 4(1). Becamon brought a third party action against Wawanesa, seeking a declaration that it had a duty to defend and indemnify her in the main action.

The Ontario Superior Court, in a decision reported at [2007] O.T.C. Uned. 474, granted the declaration. The court concluded that the strip mall parking lot was the private property of the various store owners. Wawanesa appealed, advancing two main arguments: (1) by the guilty pleas, Becamon admitted she was not "authorized by law" to drive, and therefore estopped from taking a contrary position in the civil action; and (2) that the trial judge erred by concluding that the accident did not take place on a "highway".

The Ontario Court of Appeal dismissed the appeal.

Estoppel - Topic 376.1

Estoppel by record (res judicata) - Res judicata as a bar to subsequent proceedings - What may be considered when determining res judicata - [See Estoppel - Topic 398 ].

Estoppel - Topic 398

Estoppel by record (res judicata) - Res judicata as a bar to subsequent proceedings - Exceptions - Special circumstances - An insured pleaded guilty to two offences under the Highway Traffic Act, one of which was violating her licence restriction by driving alone - In the civil action, the insurer refused to defend or indemnify her - The insured brought a third party action against the insurer, seeking a declaration that it had a duty to defend and indemnify her - The insurer submitted that in light of the guilty pleas, the insured admitted that she was not authorized by law to drive, and that accordingly, she was estopped from taking a contrary position in the civil action - The insured testified with the assistance of a Tagalog interpreter, who did not show up on the second day of the trial - The trial judge granted the declaration - In rejecting the insurer's argument, the trial judge noted that there was no evidence to show whether the insured was represented by counsel, and that she had obvious problems with the English language, making it unfair to assign weight to the guilty pleas - Wawanesa appealed - The Ontario Court of Appeal dismissed the appeal - There was a need to strike a balance between finality and fairness - The bar against relitigation would create unfairness in this case - Specifically, the stakes in the guilty pleas were not high; the insured did not have to become involved in protracted legal proceedings and she paid relatively small fines - On the other hand, the stakes in the civil action were much greater - In addition, the court agreed with the two factors mentioned by the trial judge - See paragraphs 17 to 22.

Highways - Topic 10

General and definitions - Definitions - Street, highway or road - [See Insurance - Topic 5136 ].

Insurance - Topic 5006.13

Automobile insurance - Compulsory government schemes - General - Highway defined - [See Insurance - Topic 5136 ].

Insurance - Topic 5136

Automobile insurance - Compulsory government schemes - Actions by insured against insurer - Defences - Breach of statutory condition - An insurer argued that a strip mall parking lot was a "highway" as defined in s. 1(1) of the Highway Traffic Act (Ont.), thus triggering an insured's non-compliance with a statutory condition of the insurance policy (driving without being accompanied by a qualified driver) - The trial judge concluded that the parking lot was the private property of the various store owners, relying on the "paramount use" test from Gill v. Elwood (1970) and the "establishing primarily for" formulation in R. v. Mansour (1979) (S.C.C.) - The insurer appealed, arguing that Gill and Mansour no longer governed because of the 1983 amendments to the definition of "highway", and that "a part" of the strip mall was used as a shortcut and was therefore "a highway" - The Ontario Court of Appeal held that the reliance on Gill and Mansour was correct, and rejected the insurer's interpretation - All locations that constituted a "highway" were qualified by the phrase "common and public" - The intended and actual use were overwhelmingly as a parking area - Further, the evidence did not meet the high threshold for meeting the criteria for establishing that the public had acquired prescriptive rights to the parking lot - The court also disagreed with the insurer's submission that the trial judge did not strike a proper balance between the statutory condition and the intent of the legislature to promote public safety - The legislature had struck the balance explicitly - See paragraphs 23 to 35.

Motor Vehicles - Topic 44

General and definitions - Definitions - Highway defined - [See Insurance - Topic 5136 ].

Statutes - Topic 502

Interpretation - General principles - Intention of legislature - [See Insurance - Topic 5136 ].

Statutes - Topic 2407

Interpretation - Interpretation of words and phrases - By context - [See Insurance - Topic 5136 ].

Words and Phrases

Highway - The Ontario Court of Appeal discussed the meaning of the word "highway" as found in s. 1(1) of the Highway Traffic Act, R.S.O. 1990, c. H-8 - See paragraphs 23 to 35.

Cases Noticed:

Del Core v. College of Pharmacists (Ont.) (1985), 10 O.A.C. 57; 51 O.R.(2d) 1 (C.A.), refd to. [para. 18].

Toronto (City) et al. v. Canadian Union of Public Employees, Local 79 et al., [2003] 3 S.C.R. 77; 311 N.R. 201; 179 O.A.C. 291, refd to. [para. 18].

Gill v. Elwood, [1970] 2 O.R. 59 (C.A.), folld. [para. 25].

R. v. Mansour, [1979] 2 S.C.R. 916; 27 N.R. 476, folld. [para. 25].

Henderson et al. v. Volk et al. (1982), 35 O.R.(2d) 379 (C.A.), refd to. [para. 33].

Ebare et al. v. Winter (2005), 193 O.A.C. 174; 26 R.P.R.(4th) 220 (C.A.), refd to. [para. 33].

Statutes Noticed:

Highway Traffic Act, R.S.O. 1990, c. H-8, sect. 1(1) [para. 2].

Counsel:

Donald G. Cormack and Derek V. Abreu, for the appellant;

Donald J. Ross and Heather Gray, for the respondent.

This appeal was heard on January 5, 2009, by Laskin, MacPherson and Armstrong, JJ.A., of the Ontario Court of Appeal. MacPherson, J.A., released the following judgment of the court on February 6, 2009.