The Court of Appeal has weighed in the manner in which an insurer may prove a cancellation of a policy at the insured’s behest, in its decision in Candito v. Nmezi, 2016 ONCA 293.
This action arose out of a motor vehicle accident. Economical Insurance Group was added as a defendant to the tort action as the plaintiff’s OPCF-44R insurer where the tortfeasors did not have adequate insurance to respond to the claim. Economical commenced a Third Party Claim against State Farm Mutual Automobile Insurance Company – claiming that State Farm should defend and indemnify the tortfeasors under the third party motor vehicle liability policy.
State Farm brought a motion, arguing that it’s policy had been cancelled pursuant to Section 11(2) of Statutory Conditions–Automobile Insurance, O. Reg. 777/93. State Farm argued that the policy was not in force at the time of loss. The motion’s judge found that the tortfeasor had cancelled the policy and that Economical was required to respond to the action pursuant to the plaintiff’s OPCF-44R endorsement.
Economical appealed regarding the test applied by the motion’s judge and the evidence considered by the motion judge.
The motion’s judge had relied on State Farm’s underwriting file records which showed that that before the accident occurred, the tortfeasor requested that her policy be cancelled. State Farm sent the tortfeasor a computer generated Acknowledgment of Cancellation Request, which indicated the effective date of cancellation, the insurance premium credit given, and that the policy was cancelled. State Farm did not adduce affidavit evidence from the tortfeasor confirming that she had, indeed, wanted to cancel the policy. Economical argued that the computer printout from the underwriting file was hearsay regarding whether the tort defendant intended to cancel the policy.
Economical did not adduce any evidence to suggest that the policy was in force at the time of the accident or that the tort defendant did not want her policy to be cancelled. Economical’s position was that State Farm had an onus to discharge, and failed to do so with the evidence it did adduce.
The Court of Appeal found that the motion judge’s conclusion that the State Farm policy had been cancelled was amply supported by the evidence and that she did not err in failing to draw an adverse inference against State Farm because it did not obtain an affidavit from the tort defendant.
Jurisprudence clearly places the onus on the insurer to prove the a policy in cancelled correctly. In this case, the Court of Appeal refused to comment on whether there was an “elevated onus” on the insurer or what such an onus might look like. Where computer generated underwriting records are the norm these days, it would appear that the Court is now accepting these business records as sufficient evidence to prove a cancellation.
