Imperfect Compliance Rather than Non-Compliance - Pridmore v. Drenth, 2023 ONCA 606 (CanLII)

December 11, 2023, Kitchener, Ontario

Posted by: Robert Deutschmann, Personal Injury Lawyer

Pridmore v. Drenth, 2023 ONCA 606 (CanLII)

On appeal from the judgment of Justice David L. Edwards of the Superior Court of Justice, dated February 1, 2023, with reasons reported at 2023 ONSC 817

Date of Decision: September 15, 2023
Heard Before: E.E. Gillese J.A., “I agree. M.L. Benotto J.A.”, “I agree. J. Copeland J.A.”

Background:

Breanne Pridmore sustained severe injuries while riding as a passenger on an ATV driven by Tyler Drenth on Bird Road, identified as a rural highway. Tyler, holding only a G1 learner’s driver’s license, was operating the ATV belonging to his father, Theodore Drenth, with Theodore’s consent. Novex Insurance denied coverage, asserting that Theodore breached SC 4(1) of the insurance policy by allowing Tyler, an under-licensed driver, to operate the ATV on a highway. Subsequently, Breanne pursued a summary judgment to compel Novex to provide coverage.

Issues on Appeal:

Novex appealed, contending that the judge erred in his findings regarding Theodore's permission to drive on roads, entitlement to coverage despite the breach, and the grant of relief from forfeiture. Novex abandoned one issue during oral arguments as it was not raised initially.

The Motion Decision:

Tyler’s use of the ATV involved driving on Central Lane, considered a highway, thus breaching SC 4(1). However, the judge determined that Theodore's permission was specifically for Central Lane and trails, not Bird Road where the accident occurred. Therefore, Theodore’s breach on Central Lane did not invalidate coverage for an incident occurring on Bird Road. The court considered relief from forfeiture due to the specific nature of Theodore's breach and the disparity between the breach and the incident. From the decision:

20]      The motion judge expressly recognized that the terms of Theodore’s permission to Tyler’s operation of the ATV, on the day in question, was an important fact to be determined on the Motion. He began by setting out matters on which the parties were agreed or which had been conceded. In addition to other of the facts set out above, the motion judge noted:

• because Central Lane is a highway within the meaning of the HTA, each time Tyler drove an ATV on Central Lane, he breached SC 4(1);

• Tyler breached SC 4(1) on the day in question because he was driving on the shoulder of Bird Road after having consumed a beer or two;

• whether Theodore breached SC 4(1) is a separate question from whether Tyler breached that provision; and

•  the breach of SC 4(1) must occur at the time of the incident for coverage to be lost.

and

[23] The motion judge concluded that, on the day in question, Theodore’s consent to Tyler’s use of the ATV was clear and specific. He found that Theodore permitted Tyler: to drive the ATV from their residence onto Central Lane to get to the open field; from there, Tyler was to drive, via trails, to his friend’s stuck ATV; and, once the ATV was retrieved, Tyler was to drive home the way that he came.

Relief from Forfeiture Analysis:

Theodore’s breach, limited to Central Lane, was deemed minor and categorized as imperfect compliance rather than substantial non-compliance. Despite provisions in the Insurance Act, the court granted relief from forfeiture.

The Appeal Decision:

Applying the standard of review, the court upheld the motion judge’s findings. Theodore’s specific permission for Central Lane aligned with his understanding that it wasn’t a highway. The Court saw no basis for appellate interference with the motion judge’s findings. The judge correctly interpreted “permit” in SC 4(1) and concluded that Theodore’s breach did not extend to Bird Road. Novex’s argument against relief from forfeiture was rejected.

Result:

Theodore was deemed entitled to coverage. Novex’s appeal was dismissed, and costs were awarded to the respondent.

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