Ontario’s Court docket of Attraction says Aviva Canada doesn’t must defend a driver sued in an auto legal responsibility case as a result of the driving force’s conduct in the course of the accident investigation not solely breached the phrases of her auto coverage, nevertheless it “constituted civil fraud.”
In Wong v. Aviva Insurance Company of Canada, Victoria Pui Yu Wong sued Aviva Canada, saying the auto insurer owed her an obligation to defend a authorized motion through which she was named as a defendant.
The auto accident triggering the court docket case occurred on Mar. 18, 2019, when Wong was driving her mom’s automobile. On the time of the collision, Wong and her mom, recognized within the resolution as “Ms. Tieu,” had been coated by the identical auto insurance coverage coverage. Aviva denied protection to Wong and her mom on the idea that they’d breached the phrases of their coverage.
“Ms. Wong believed her driver’s license had expired, so she known as her mom and requested her to come back to the scene of the accident and symbolize that she had been driving on the time of the collision,” says the Court docket of Attraction’s resolution, launched Monday.
“Ms. Wong and her mom perpetuated this falsehood once they reported the collision on the Collision Reporting Centre and once they submitted the declare to Aviva. Ms. Wong and her mom continued such false representations when giving statements to the police and after the declare was instituted by the opposite driver [in the main action].”
Aviva found the false illustration at examinations for discovery throughout the principle authorized motion in opposition to their insureds. Aviva then declined to defend or indemnify Wong and her mom in the principle motion.
Wong appealed Aviva’s resolution to a decrease court docket. The decide dismissed Wong’s utility for a declaration of protection, discovering she had violated the phrases and circumstances of her insurance coverage coverage and made materials misrepresentations to Aviva and others. The justice agreed the weather of civil fraud had been made out within the proof earlier than her.
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Wong appealed this resolution to the Court docket of Attraction. She didn’t dispute the decide’s discovering that she breached the phrases of the auto coverage; moderately, she disputed the discovering that what she did constituted civil fraud.
Caselaw says 4 parts have to be current to determine civil fraud. To paraphrase: 1) an individual has to have made a false illustration; 2) the particular person should know the illustration was false; 3) the false illustration brought about an individual to behave [for example, in this case, Wong acted by suing Aviva]; and 4) the particular person’s actions resulted in a loss.
Wong stated it was pointless for the decrease court docket decide to make a discovering of fraud. What’s extra, the discovering was incorrect as a result of Aviva didn’t undergo any loss due to the misrepresentation.
The court docket stated it didn’t even want to listen to from Aviva earlier than dismissing Wong’s case.
“It’s past dispute that Aviva has suffered losses up to now due to Ms. Wong’s actions,” the Court docket of Attraction dominated. “The losses by way of the defence of the principle motion can’t be quantified nowadays as a result of the damages haven’t but crystallized.
“Nonetheless, it’s clear [Aviva] has sustained a loss by way of the style through which it will probably defend that motion. This can be a actual loss, not a speculative one, which is a direct consequence of Ms. Wong’s actions.”
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