Freedman v. Allianz Insurance Co. of Canada

 Ruth Freedman and Harry Freedman, Plaintiffs and Allianz Insurance Company of

Canada, Sidney Wilfand, Lisa Spicer and Leroy Anderson Jr., Defendants

Ontario Court of Justice (General Division) [Divisional Court]

 Rosenberg J.

 Heard: December 23, 1998

Oral reasons: December 23, 1998

Docket: Toronto 656/98

 Counsel: Bert Raphael, Q.C., for the plaintiffs.

 Larry W. Keown, for Sidney Wilfand.

 Subject: Insurance; Civil Practice and Procedure

 Conflict of laws — General principles — Substantive versus procedural law.

 Insurance — No-fault automobile insurance — Threshold issues — General.

 Cases considered by Rosenberg J.:

 Sidiropoulos v. Johnson (January 3, 1996), Doc. Whitby 59411/94 (Ont. Gen. Div.) — considered

 Wilson v. Moyes (1993), 13 O.R. (3d) 202 (Ont. Gen. Div.) — considered

 APPLICATION by plaintiff for leave to appeal jurisdiction of proceedings.

 Rosenberg J. orally:

 1     The application is allowed. In my view, if it were not for the plaintiffs’ joining of the defendant Allianz the balance of convenience would have favoured Florida. The fact that the accident was in Florida and that the defendants are Florida residents would weigh very heavily in the normal test. One aspect of the test that is not referred to either by the Master or by Justice McCombs is the possibility that there may be a limitation defence in Florida. There is no evidence before me that indicates whether or not such a defence would exist in the circumstances of this case. The plaintiff alleges that there has been serious delay leading to a possibility of a limitation defence and I am unable to assess that in terms of a possible juridical disadvantage to the plaintiff in Florida. The principle reason that I am granting leave to appeal is that the whole insurance question is rather new and there has not been a decision above the level of the Trial court with regard to the weight to be given to the joining of the plaintiffs’ own insurers because of the possibility of an under insured claim or an uninsured claim. There are two conflicting decisions in that regard which are referred to in the Master’s decision and the Master states “to the extent that Sidiropoulos v. Johnson [(January 3, 1996), Doc. Whitby 59411/94 (Ont. Gen. Div.)] is in conflict with Wilson v. Moyes [(1993), 13 O.R. (3d) 202 (Ont. Gen. Div.)], I prefer the former decision.” It is clear that the Master saw the two decisions as being in conflict. In my view, they do conflict to the extent of the weight to be given to the fact that the terms of the insurer’s liability under both the uninsured and under insured are tied in the one case to Ontario Law and in the other case to the insured only being able to claim without defence if the judgment is an Ontario judgment.


2     There is another fairly new situation that would require a decision at a higher level and that is the question of the threshold. It is argued on behalf of the plaintiff that the situation has been changed by the threshold test to the extent that the local doctors in Toronto who can attest to the aspects of the threshold test in terms of the long-term prognosis of whether there is a permanent impairment, etc. The argument is that those doctors become more important than the Florida doctors who dealt with an emergency and several months of treatment but do not have as important involvement in determining whether the threshold has been met. For these reasons it seems to me appropriate that there be consideration of these issues by the full panel of the Divisional Court.


Application allowed.