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Public Interest - Insurance. Formula First Collision v. Aviva Canada [assignment of subrogated rights]
In Formula First Collision v. Aviva Canada (Ont CA, 2026) the Ontario Court of Appeal considered an appellate motion, here to strike an affidavit filed and relied up "in its factum in support of a motion for leave to appeal a decision of the Divisional Court".
This is an intriguing public interest case. An auto repairer who (apparently) was so reliant on (and frustrated by) an auto insurer's control over the quantum of their repair bills, that they required their auto owner clients to sign a "document purported to assign to Formula First any and all rights of action for damages with respect to repairs and other costs arising out of a contract with Aviva". This purportedly allowed the repairer to sue the insurer for the excess amount over such 'allowed' bills, thus recovering the 'full' bill:[5] The underlying proceeding was an appeal of a Small Claims Court decision. Cars in need of repairs were either driven or towed to Formula First’s shop at the direction of the cars’ owners. At Formula First’s request, each of the owners signed a document titled “Assignment”. The document purported to assign to Formula First any and all rights of action for damages with respect to repairs and other costs arising out of a contract with Aviva.
[6] In each case, Formula First prepared a preliminary estimate for the repairs. Aviva also prepared its own estimate for the repairs, outlining the work that it considered necessary and the amount that it was willing to pay for that work. Formula First proceeded to repair the vehicles. In five cases, invoices were rendered for an amount greater than the amount Aviva said it would pay, leaving balances owing on each of the invoices, the total of which Formula First sued for in Small Claims Court.
[7] The Small Claims Court dismissed Formula First’s claim. On appeal to the Divisional Court, Hebner J. dismissed the appeal.
[8] As noted above, Formula First has now moved for leave to appeal to this court.
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[14] It is unnecessary for me to detail each paragraph that Aviva challenges on this motion. As noted above, the affidavit primarily offers the opinion that, if left undisturbed, the Divisional Court’s decision will significantly affect the future of independent autobody shops in the province. In essence, Mr. Gobatto asserts, either implicitly or explicitly, that leave should be granted because the manner in which Aviva determines payment for repair work performed by independent autobody shops is an issue of broader public importance beyond the interests of the parties in this case.
[15] I accept Formula First’s submission that the impact of a court’s decision beyond the parties and on the wider public is relevant to the issue of public importance. However, as Weiler J.A. noted in Iness, at para. 11, relevance is not the only question to consider when granting leave to file affidavits. As Optiva Inc. makes clear, the affidavit must confine itself to appropriate factual information as to the effects of a decision that may be of assistance: at para. 11.
[16] Respectfully, an examination of the Gobatto affidavit reveals that it strays well beyond providing factual information for the assistance of the panel deciding leave. Instead, it is replete with argument and opinion. For example, if Formula First wished to rely on the impact that the Divisional Court decision had on independent autobody shops and the wider general public, it ought to have introduced relevant statistical evidence (assuming such evidence existed). While Formula First claims that the Gobatto affidavit goes to the substantive issue of whether this appeal has public importance, the assertions in this affidavit are anecdotal and based merely on the observations of Mr. Gobatto, the owner of Formula First.
[17] Moreover, the affidavit raises allegations of what Aviva has done since the decision of the Divisional Court in eight different matters. These allegations are disputed. In any event, they are not facts that that may help the panel appreciate the alleged wide impact that the Divisional Court's decision apparently has had on independent autobody shops and owners of cars.
[18] In my view, the only non-objectionable portions of the affidavit are at paragraphs 2, 3, 7, 8 and 9. These paragraphs provide information on matters that do not seem to be controversial and are objectively verifiable. But these paragraphs cannot stand on their own. They are provided to give context to the more controversial conclusion that Mr. Gobatto makes at the end of his affidavit:21. The cumulative effect of the lower court decisions is not limited to my business or other independent repair facilities. The Divisional Court’s interpretation affects millions of insured Ontarians, the safety of repaired vehicles on public roads, the competitive structure of the automotive repair market, and the integrity of FSRA’s consumer protection framework. These are all matters of clear and substantial public importance. [Emphasis added.] [19] Fundamentally, the affidavit offers an opinion on the importance of granting leave, an issue that lies squarely within the panel’s discretion. It further asserts that, if left intact, the Divisional Court’s decision will affect a substantial segment of the population by impacting safety, competition within the autobody industry, and the integrity of consumer protection legislation. It makes these assertions without proper facts, relying on anecdotal assertions rather than supporting data, statistics, or corroborating evidence. Although some portions of the affidavit are non‑controversial, the appropriate remedy is to strike the affidavit in its entirety, as those isolated paragraphs cannot meaningfully assist the panel on their own.
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