The Plaintiff agreed that Paragraph 9 of his Claim is not true. While he pleaded that his insurance premiums increased after he insured the Scottsdale truck, he admitted in cross-examination that his premiums, in fact, went down. He also testified that Paragraphs 11 and 12 of his Claim were not totally accurate. He admitted that the Claim was prepared by his lawyer on his instructions.

The Plaintiff says he spent over $ 3,500.00 restoring the truck after he acquired it, some of it before he placed insurance and some of it afterwards. But he could only produce supporting documents for the period after he had the truck safety checked, which was at about the time that the Plaintiff effected insurance on the truck through the Defendant. Why could he not produce any documentation to cover the time period before it was safety checked ? The only logical conclusion is that those bills never existed.

Ron Lipski, an expert in the field of auto appraisals, testified on behalf of the Defendant. While my recollection is that the Plaintiff testified that the Scottsdale truck was a 1979 model (although he may have said in his evidence in chief that it was a 1978 model), the Plaintiff's Proof of Loss [ Exhibit 2 - Tab 75 ] clearly describes it as a 1979 model. When he was cross-examined, the Plaintiff admitted that the truck was a 1978 model. And in fact, Mr. Lipski testified that based on its serial number, it was a 1978 model. The Plaintiff said that the odometer on the truck was in "miles." Mr. Lipski testified that the odometer was in "kilometres."

While the Plaintiff testified that he had the truck certified, Mr. Lipski questioned how that could have been done because of the fact that (according to the Plaintiff's evidence), the steering parts had to be changed two months later.

When I consider all of the above, I find myself having trouble believing the Plaintiff.

Then I look at the evidence of the witnesses who testified for the Defendant.

Mr. Wayne Lyons testified. Mr. Lyons, a licensed insurance broker (including automobile insurance) since 1976, is the President of the Defendant. He was the main person at the Defendant that dealt with the Plaintiff and the Plaintiff's insurance needs.

As I have already stated, the Plaintiff testified that he had additional vehicles insured through the Defendant, including:
 

While the Plaintiff produced a great deal of documentation regarding his insurance coverages (as evidenced by Exhibit 2), he did not produce any documentation to prove that he had the 1980 Monza or the 1985 Hyundai insured through the Defendant. Mr. Lyons, on the other hand, testified that he does not have any physical record or independent recollection of either of those two vehicles ever being insured through the Defendant. I accept Mr. Lyons' evidence. Having said that, it is evident that this discrepancy does not bode well for the Plaintiff's credibility.

Several times in the evidence in this trial we have heard the term "full coverage" used as it related to automobile insurance. Mr. Lyons defined that term to mean (in the context of the Plaintiff's insurance):

That definition agrees with what the Plaintiff understood when he talked about "full coverage."

Mr. Lyons testified that on November 19, 1998, the Plaintiff requested coverage for the first time on a 1986 Hyundai. The Plaintiff told Mr. Lyons that he wanted the mandatory coverage only and did not want coverage for collision or comprehensive.

On April 14, 1999, according to the testimony of Mr. Lyons, the Plaintiff phoned Mr. Lyons and told him three things:
 

The 1979 Chevy truck referred to in that conversation is the Scottsdale truck that was later stolen and which gives rise to this Court Action.

Mr. Lyons testified that the Plaintiff never had collision or comprehensive coverage on the Hyundai at any time.

Mr. Lyons also stated that the Plaintiff never told him in that initial conversation, or at any subsequent time:

The Plaintiff's insurance coverage was with the West Wawanosh Insurance Company. Both Mr. Lyons and Mr. Ken Cox (the Manager of West Wawanosh Insurance Company) testified that at all relevant times the West Wawanosh Insurance Company had special requirements if collision and/or comprehensive insurance coverage was requested on a vehicle that was over 10 years old. That Directive is found at Tab 14 of Exhibit 1 and would possibly include both an appraisal and photographs. Mr. Cox testified that the Defendant has always followed that Directive.

As I have already said, the Plaintiff stated in his evidence that Mr. Lyons did not ask to see the truck and did not ask for any photos of the truck. Mr. Lyons agrees. That fact supports Mr. Lyons when he says that the Plaintiff did not ask for collision or comprehensive coverage and did not indicate the value of the truck. If the Plaintiff had done any of those things mentioned, Mr. Lyons would have asked for photos as a minimum, and perhaps an appraisal.

Mr. Lyons testified that, up until the time that the Scottsdale was stolen, the Plaintiff never requested full coverage at any time for any of his vehicles, except for the 1981 Monte Carlo.

There were three occasions when the Defendant sent documentation to the Plaintiff that would have told the Plaintiff that he did not have collision or comprehensive coverage on the Scottsdale truck. The first was the Certificate of Insurance that was mailed to the Defendant shortly after coverage was first placed on the Scottsdale truck in April 1999. The next time was when the Renewal Certificate of Insurance was mailed to the Plaintiff in May 1999 to cover the period from July 7, 1999 to July 7, 2000. The third time was when a further Renewal Certificate of Insurance was mailed to the Plaintiff prior to the truck being stolen to cover the period from July 7, 2000 to July 7, 2001. I find that the Defendant mailed each of those documents to the Plaintiff. I do not believe the Plaintiff when he states that he did not receive all of them. The Plaintiff never contacted the Defendant to say that he did not have proper coverage.

Mr. Lyons testified that he reviewed the insurance coverages with the Plaintiff from time to time. He stated that the Plaintiff was quite clear what he wanted regarding collision and comprehensive coverage. From listening to the evidence of the Plaintiff, I am satisfied that the Plaintiff had a very good understanding of what collision and comprehensive coverages meant. Therefore, I do not find that the Defendant has breached its duty to the Plaintiff, as that duty is stated in the Ontario Court of Appeal case of Fine's Flowers Ltd. v. General Accident Assurance Co., (1977), 17 O.R. (2d) 529.

I was impressed with the manner in which Mr. Lyons gave his testimony. Where there are any discrepancies between the testimony of the Plaintiff and that of Mr. Lyons, I accept the evidence of Mr. Lyons.

Mr. Jim Mulhern, the Secretary-Treasurer of the Defendant, testified that he had a conversation with the Plaintiff about insurance on the Scottsdale truck on April 16, 1999. Mr. Mulhern said that the Plaintiff never told him about the value of the truck or wanting more coverage than what was on the Hyundai.

Ms. Kelly Connelly, a Senior Customer Service Representative with the Defendant, testified as to what she had personal knowledge of regarding the Plaintiff and his insurance coverage.

I was impressed with the forthrightness of both Mr. Mulhern and Ms. Connelly.

During the testimony of the Ms. Connelly, Mr. Mulhern and Mr. Lyons, the Court heard about computer systems that the Defendant had in use during the times relevant to this case. While I agree that the Transaction Logs are only as accurate as the perception of the person inputting the information, I am satisfied that the Transaction Logs that were produced as Exhibits in this case represent accurately what took place. And those Transaction Logs do not support the Plaintiff's version of events.

No one in the Defendant's employ had anything to gain by not following the instructions of the Plaintiff. As Mr. Lyons testified, if he had been able to sell collision and comprehensive coverage to the Plaintiff for the Scottsdale truck, he could have charged the Plaintiff a higher premium, the result of which would be a higher commission, and hence more income, for the Defendant, of which Mr. Lyons was a shareholder.

The burden of proof is on the Plaintiff.

It is clear from the Plaintiff's evidence that either he knew perfectly well what he was doing with his insurance coverage when he gave instructions to the Defendant or he acted in a very careless and cavalier manner. If the Plaintiff did not understand his insurance coverage, he had an obligation to make inquiries, which he did not do. But I believe that the Plaintiff knew more about what coverage he had on his vehicles than what he told us in his evidence. He wanted the cheapest insurance possible. He gambled that he would not have to make a claim under his policy - a gamble which, it turns out, he lost.

I, therefore, find that the Plaintiff has not proven his case.

However, I still need to deal with the issue of damages.

The Plaintiff testified that he purchased the truck in February 1999 for $ 3,000.00 from his mother. He testified that the truck was really worth a lot more than that, but the balance of the value was really a gift.

As I have already said, the Plaintiff says he spent over $ 3,500.00 restoring the truck after he acquired it. But he could only produce supporting documents for the period after he had the truck safety checked. Why could he not produce any documentation to cover the time period before it was safety checked ?

The Plaintiff's Claim for the loss of the Scottsdale truck is $ 6,000.00.

After the truck was stolen, the Plaintiff submitted a Proof of Loss under his homeowner's insurance policy for the contents in the amount of $ 6,094.00. See Tab 66 of Exhibit 2. But he settled that part of his loss for $ 1,639.00. See Tab 67 of Exhibit 2. Was that a gross exaggeration of the value of the contents ? If so, has the Plaintiff tried to do the same thing with the value of his Scottsdale truck ?

Mr. Lipski testified that in his opinion, the value of the truck was in the range of $ 3,900.00 to $ 4,100.00. Even though Mr. Lipski was never able to actually touch the subject vehicle, he did have photographs to look at. He also gave ample reasons to support his opinion. I found Mr. Lipski's evidence to be trustworthy and credible.

I assess the Plaintiff's damages at $ 4,000.00, being the mid point of Mr. Lipski's range, less a $ 300.00 deductible, making the total damages $ 3,700.00.

While I assess the Plaintiff's damages at $ 3,700.00, I am dismissing the Plaintiff's Claim because, as I have already stated, the Plaintiff did not prove his case and, hence, the Defendant is not liable to the Plaintiff for those damages.

In making this statement, I want to commend Ms. Mathieu for the way in which she conducted the Plaintiff's case. It was not because of her or her law firm that the Plaintiff has not proven his case. Ms. Mathieu presented the best evidence that she had and cross-examined witnesses as best as she could with the facts that she had to work with. But as a very distinguished Judge said to me many years ago, "You cannot make a silk purse out of a sow's ear !" The Plaintiff, himself, is solely responsible for the outcome today.