Trial Needed to see the Black Forest Hamm for the Trees

July 5, 2011

The Ontario Superior Court has denied a tort defendant’s summary judgment motion to dismiss the plaintiff’s claim for damages on the basis that he was driving without insurance at the time of a motor vehicle accident.

In Black v. Hamm, The plaintiff Richard Black was the owner and operator of a 1984 BMW vehicle. At the time of the accident, the defendant alleges that Black was uninsured. Black maintains that he had an honest but mistaken belief that his insurance was valid.

The defendants moved for summary judgment, arguing that since Black was uninsured, he was in contravention of section 2(1) of the Compulsory Automobile Insurance Act and therefore not entitled to recover any loss or damage from bodily injury arising directly or indirectly for the use and operation of a vehicle, pursuant to section 267.6(1) of the Insurance Act.

In dismissing the defendants’ motion, the judge provides some useful discussion on the new “summary judgment rule”. She determined that the evidence led by both parties was to be examined carefully and weighed to determine whether a summary judgment was available. In this case, she noted that there were a lot of disputed facts.

On the evidence, the judge acknowledged that the plaintiff’s recollection of events was “spotty”, but found that the inconsistencies and contradictions were not material. She found that the moving parties had not proven that a trial was unnecessary in this case. She was not able to conclude, on the evidence before her, that Black was unreasonable in mailing, by insured overnight post, cash for payment of his premium, or that the belief flowing from this was unreasonable. She found that this and other issues needed more expansive treatment, available by way of a trial. For example, the weighing of the credibility of Black would need be done in the context of the evidence he was able to put forth, given a serious brain injury, and that should be done in the context of a trial.

Accordingly, she was not prepared to declare whether there was a contravention of section 2(1), as that remained a live issue.

The Black case should remind insurers that driving without insurance doesn’t necessarily mean that the driver is “contravening” section 2(1) of the CAIA. As noted in Black, it is common ground that the contravention of section 2(1) of the Act is one of strict liability: The only defence available is if the plaintiff has acted reasonably under the circumstances, which is almost always a question of fact.


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