Faltas v. Macerollo, 2020 ONSC 1450

The plaintiffs were injured in a motor vehicle accident. In addition to suing in their personal capacity, the corporation through which they provided services as pharmacists sued for damages. One of the plaintiffs was an excluded driver on the auto policy, and was seated in the stationary and inoperable vehicle when it was rear-ended. That plaintiff had driven the vehicle prior to its engine breaking down. He had pulled over the side of the road and was waiting for a tow truck. The defendants brought a summary judgment motion against the excluded driver plaintiff based on s. 267.6(1) of the Insurance Act (i.e. that an uninsured user or operator of a vehicle cannot bring an action for MVA injuries), and against the corporate plaintiff arguing that it did not have a valid claim. Justice Gordon dismissed the motion. He held that there was a triable issue as to whether the excluded driver plaintiff was barred by s.267.6(1) from bringing a claim because his vehicle was not operable at the time of the accident. Further, the defendant’s only evidence was through an affidavit from a lawyer, who had no first-hand knowledge as to the plaintiff’s use of the vehicle. Justice Gordon also found that the issues of the claim by the corporate plaintiff was a triable issue and that a judge had to determine the merits of the claim.