Canadian Underwriter

Court orders parent to produce underwriting file to prove she denied permission for her child to drive

August 16, 2018   by Greg Meckbach

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If a parent does not give permission to a child to drive the car, then if the child gets into a serious accident, a court could order the parent to produce the underwriting file to prove they did not grant the child permission to drive.

In Sidhu v. Toor, released Tuesday, a parent was named as the vehicle owner in a lawsuit; the child was named as an occasional driver on the parent’s auto policy. The child was driving the car at the time of a fatal collision. Insurers in the case denied coverage; they sought production of documents that would help undermine the parent’s insistence that she did not give the child permission to drive the car. The case was strictly confined to whether the parent had to produce documents to help support her claim; the court did not decide the merits of her claim.

In 2014, Gurjap Toor was driving a Toyota Corolla when he made a U-turn. The vehicle was struck by a truck. As a result, one of the passengers in the Toyota – Kharmveer Gill – was killed.

The Toyota is owned by Gurpreet Toor, the driver’s mother, who says the vehicle was driven without her permission.

Section 192 of the Highway Traffic Act stipulates that both owners and drivers are liable for accidents in which the driver is negligent. But the owner is not liable if the vehicle was taken without the owner’s consent.

The Toors face two separate lawsuits – one from the estate of Gill and the other from the injured passenger, Navneet Sidhu.

In , Justice Steve Coroza of the Ontario Superior Court of Justice ordered Gurpreet Toor to obtain, at her own expense, a copy of All-Risks Insurance Brokers Ltd.’s file in relation to her Corolla.

The lawsuits are in the early stages. Tuesday’s ruling was on several motions by Wawanesa Mutual Insurance Company and Coseco Insurance Company. Justice Coroza ruled partly in the insurers’ favour.

Although Gurpreet Toor has already provided the insurers with the declaration documents, Wawanesa and Coseco argued that additional information in the broker’s file might indicate the intentions of Gurpreet Toor and her husband when the bought the Toyota. They already owned two other vehicles.

Justice Coroza agreed with the insurers on this point.

“For example, there may be information communicated to insurers about the use of the Toyota that is not reflected in the Declaration Pages that have been disclosed,” Coroza wrote. “This information may be documented and could provide evidence to test Gurpreet’s assertion that, after Gurjap obtained his license, the use patterns of all three cars did not change in the household, and that she was the one who drove the Toyota on a regular basis.”

Coseco and Wawanesa are the insurers for plaintiffs Sidhu and Gill respectively. The insurers are defendants in the separate lawsuits because both denied coverage to the passengers. Both insurers argue Gurpreet Toor is liable as the vehicle owner. Toor argues she is not liable because she did not give her son permission to drive the car. Both lawsuits are in the early stages. Gurpreet Toor was examined for discovery in 2016.

In his ruling released Aug. 14, 2018, Justice Coroza denied the insurers’ request to order the Toors to turn over the paperwork for the purchase of the Toyota. The insurers argue the purchase documents could provide evidence that the vehicle was purchased for Gurjap Toor’s use.

But Justice Coroza countered that “the ownership of the Toyota is not a live issue because it is conceded that the owner is Gurpreet.”

He added the purchase paperwork has “no real probative value about Gurjap’s use” of the Corrola because Gurjap is listed on insurance documents as an occasional driver.

Justice Coroza also turned down the insurers’ request to order Gurpreet Toor to produce insurance underwriting documents on two other vehicles she and her husband owned. Those vehicles – unlike the Toyota – were not involved in the accident, Justice Coroza explained.

Justice Coroza did rule in favour of the insurers by ordering Gurpreet to attend another examination – at which point she must answer questions as to whether or not she ever spoke to her son after the accident “as to how he obtained the keys on the night of the accident.”

That question is relevant to question of whether or not the driver had the owners’ consent to drive the car,” Justice Coroza wrote.

“As a matter of logic and human experience, any attempt by Gurpreet to confront her son about how he took the Toyota after the accident is relevant to whether she gave him consent to drive the car,” he wrote. “If Gurpreet confronted her son about the taking of the Toyota, this could support her position that he did not have permission to drive the car. If she did nothing, in combination with other evidence, it will be open for Wawanesa and Coseco to ask the trier of fact to draw an inference that she did not ask any questions because Gurjap did not need her permission to drive the car.”

Another request by the insurers’ – for contact information for Gurpreet’s cousin’s daughter – was denied. The cousin’s daughter lived with the Toors at the time of the collision so the insurers argued she might be able to provide information about who was driving which vehicles.

This is only speculation, Justice Coroza wrote.