FUNK v WAWANESA MUTUAL INSURANCE COMPANY, 2017 ABQB 308
7.3: Summary Judgment (Application and decision)
The Defendant insurer applied for Summary Dismissal of the Plaintiff’s Statement of Claim, pursuant to Rule 7.3, alleging that the Plaintiff had no insurance coverage. The Plaintiff cross-applied for Summary Judgment, and an Order to set a hearing for an assessment of damages.
The Defendant insurer had denied coverage to the Plaintiff after the Plaintiff claimed for a vehicular collision in which the other driver and vehicle were unknown, and the Plaintiff had settled with the Motor Vehicle Accidents Claim Fund for the statutory limit of $200,000.
Justice Simpson noted that the test under Rule 7.3 was whether the Court could come to a disposition that is fair and just for both parties based on the existing record. His Lordship held that the insurance policy was clear and unambiguous, but the provision was unjust and unreasonable. In such a case, section 545(1) of the Insurance Act, RSA 2000, c I-3, would normally apply to prevent the provision from being binding on the insured. However, this section was not in force at the time of the accident and did not apply retrospectively. Nonetheless, Simpson J. held that the impugned insurance clause was contrary to public policy, and was therefore unenforceable.
The Defendant insurer’s Application for Summary Dismissal was denied and a declaratory Order was granted in favour of the Plaintiff to the effect that he had insurance coverage. However, the Court denied Summary Judgment for the Plaintiff with respect to liability. The matter was directed to a Trial to determine liability and damages.View CanLII Details