Soriano v. Palacios, (2005) 198 O.A.C. 247 (CA)

• Judge: Goudge, Feldman and Blair, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: March 16, 2005
• Jurisdiction: Ontario
• Citations: (2005), 198 O.A.C. 247 (CA)

Soriano v. Palacios (2005), 198 O.A.C. 247 (CA)

MLB headnote and full text

Temp. Cite: [2005] O.A.C. TBEd. JN.009

Daniel Orlando Soriano, minor by his Litigation Guardian, Marina De Jesus Ruiz Hiraeta, Marina De Jesus Ruiz Hiraeta, personally, Joaquin Soriano-Cortez, Jamie Soriano, minor, Luz Noemi Soriano, minor, Sarita Soriano, minor and Daniella Soriano, minor by their Litigation Guardian, Marina De Jesus Ruiz Hiraeta (plaintiffs/appellants) v. Natividad Mercedes Palacios and Wawanesa Mutual Insurance Company (defendants/respondents)

(C42225)

Indexed As: Soriano et al. v. Palacios et al.

Ontario Court of Appeal

Goudge, Feldman and Blair, JJ.A.

June 3, 2005.

Summary:

Five-year-old Daniel Soriano was struck by a car owned and operated by Palacios. He was badly injured. The accident happened in Quebec. Daniel and his family were residents of Ontario. The Sorianos were insured under an automobile policy issued in Ontario by Wawanesa Mutual Insurance Company. The Sorianos commenced an action in Ontario to recover for Daniel's injuries. They sued both Palacios and Wawanesa. Wawanesa moved for summary judgment to have the action against it dismissed, arguing that the Quebec legislation barred the Sorianos' claim.

The Ontario Superior Court, in a decision reported at [2004] O.T.C. 443, granted the order. The court held that Quebec substantive law applied to the tort action, it had no discretion to apply Ontario law, and thus the action was statute barred. The Sorianos appealed.

The Ontario Court of Appeal dismissed the appeal.

Conflict of Laws - Topic 7602

Torts - Jurisdiction - Tort occurring outside jurisdiction - Five-year-old Daniel Soriano was struck by a car owned and operated by Palacios - He was badly injured - The accident happened in Quebec - Daniel and his family were residents of Ontario - The Sorianos were insured under an automobile policy issued in Ontario by Wawanesa - They sued Palacios and Wawanesa in Ontario to recover for Daniel's damages - A motions judge granted Wawanesa summary judgment dismissing the action against it - The motions judge held that Quebec substantive law applied to the tort action, the court had no discretion to apply Ontario law, and thus the action was barred by Quebec's legislated no fault insurance system - The Ontario Court of Appeal agreed.

Conflict of Laws - Topic 7602

Torts - Jurisdiction - Tort occurring outside jurisdiction - Five-year-old Daniel Soriano was struck by a car owned and operated by Palacios - He was badly injured - The accident happened in Quebec - Daniel and his family were residents of Ontario - The Sorianos were insured under an automobile policy issued in Ontario by Wawanesa - They sued Palacios and Wawanesa in Ontario to recover for Daniel's damages - Section 265(1)(a) of Ontario's Insurance Act provided that "Every contract evidenced by a motor vehicle liability policy shall provide for payment of all sums that a person insured under the contract is legally entitled to recover from the owner or driver of an uninsured automobile or unidentified automobile as damages for bodily injuries resulting from an accident involving an automobile" - The Ontario Court of Appeal held that because of Quebec's legislated no fault insurance system, the plaintiffs were not "legally entitled to recover" damages from Palacios for Daniel's injuries - Therefore, they could not succeed in a claim made under the mandatory uninsured motorist coverage in their own automobile policy.

Conflict of Laws - Topic 7690

Torts - Choice of law - Torts affecting the person - Damages - [See second Conflict of Laws - Topic 7602 ].

Insurance - Topic 5187

Automobile insurance - Compulsory government schemes - Uninsured or underinsured motorist coverage - Requirement of "legally entitled to recover" - [See second Conflict of Laws - Topic 7602 ].

Words and Phrases

Legally entitled to recover - The Ontario Court of Appeal discussed the meaning of this phrase as found in s. 265(1)(a) of the Insurance Act, R.S.O. 1990, c. I-8 - See paragraphs 15 to 27.

Cases Noticed:

Tolofson v. Jensen and Tolofson, [1994] 3 S.C.R. 1022; 175 N.R. 161; 77 O.A.C. 81; 51 B.C.A.C. 241; 84 W.A.C. 241, refd to. [para. 14].

Leonard v. Houle (1997), 105 O.A.C. 129; 36 O.R.(3d) 357 (C.A.), refd to. [para. 14].

Wong v. Lee et al. (2002), 157 O.A.C. 340; 58 O.R.(3d) 398 (C.A.), refd to. [para. 14].

Lau et al. v. Li et al., [2001] O.T.C. 248; 53 O.R.(3d) 727 (Sup. Ct.), disagreed with [para. 14].

Chambo v. Musseau (1993), 65 O.A.C. 291; 15 O.R.(3d) 305 (C.A.), refd to. [para. 16].

Somersall v. Friedman et al., [2002] 3 S.C.R. 109; 292 N.R. 1; 163 O.A.C. 201, appld. [para. 18].

Somersall v. Friedman et al. (2000), 129 O.A.C. 68; 183 D.L.R.(4th) 396 (C.A.), refd to. [para. 21].

Craig v. Allstate Insurance Co. of Canada (2002), 161 O.A.C. 140 (C.A.), refd to. [para. 22].

Statutes Noticed:

Insurance Act, R.S.O. 1990, c. I-8, sect. 265(1)(a) [para. 7].

Counsel:

Paul Bates and Charles Gluckstein, for the appellants, Daniel Soriano et al.;

Donald G. Cormack and Derek V. Abreu, for the respondent, Wawanesa Mutual Insurance Co.

This appeal was heard on March 16, 2005, by Goudge, Feldman and Blair, JJ.A., of the Ontario Court of Appeal. Goudge, J.A., delivered the following decision for the court on June 3, 2005.