Of Frozen Pipes, Windfalls and Draconian Consequences

Written by David Thompson and Roger Chown for OIAA WP Magazine

It is very common for homeowner’s policies to exclude water claims arising when pipes freeze during the heating season if the insured was away from the premises for more than four consecutive days, unless the insured had arranged for a competent person to enter the dwelling on a daily basis to ensure that heating was being maintained. However, there are surprisingly few cases that squarely deal with this simple fact pattern. After one of the coldest Canadian winters in decades, it seems appropriate to consider this topic.

Relief From Forfeiture Under the Courts of Justice Act in Auto Insurance Cases: A Review of Kozel v. The Personal Insurance Company

The Ontario Court of Appeal’s decision in Kozel v. The Personal Insurance Company, 2014 ONCA 130 has expanded the availability of relief from forfeiture under section 98 of the Courts of Justice Act. The court’s decision confirms that relief from forfeiture under this section is available for violations of statutory condition 4(1) of Ontario’s standard automobile insurance policy (OAP1), even where section 129 of the Insurance Act does not apply.

Kozel has altered the landscape for statutory condition 4(1) denials. The Court of Appeal held that driving with an expired licence is not non-compliance with a condition precedent in an insurance contract, but imperfect compliance. Kozel expands access to relief from forfeiture, concluding that only in rare cases will a finding of non-compliance be made. In most cases, the breach will be deemed imperfect compliance, and relief from forfeiture may be available.