The plaintiffs brought an action pursuant to section 258(1) of the Insurance Act for payment of insurance monies to satisfy a judgment for damages suffered by them as a result of a single vehicle motor vehicle accident. The issue on the underlying summary judgment motion was which of Gore Mutual Insurance Company (the insurer of the owner of the vehicle) and Allstate Insurance Company (the insurer of one of the plaintiffs) was responsible for satisfying the judgment. Gore Mutual’s insured had failed to advise it of her change in address and Gore Mutual lost contact with her. Gore Mutual argued that it was not liable for the judgment because its insured had breached the applicable policy. The motion judge held that Gore Mutual was liable for the judgment, finding that the owner of the vehicle had not breached Gore Mutual’s insurance policy so as to forfeit the proceeds. In the alternative, even if the policy was breached, the owner of the vehicle was entitled to relief from forfeiture. On appeal, the Court of Appeal affirmed that the onus to establish a breach is on the insurer and consideration of an allegation of non-cooperation requires a qualitative analysis of the insured’s conduct to determine whether it amounts to substantial non-cooperation. In the circumstances, there was limited relevant information within the insured’s knowledge and it was open to the motion judge to hold that failure to provide her up-to-date address did not constitute a substantial failure to cooperate. The appeal was dismissed.
