CITATION: Jakab et al. v. Clean Harbors Canada, Inc., 2022 ONSC 3277  
COURT FILE NO.: CV-19-69734  
DATE: 20220531  
SUPERIOR COURT OF JUSTICE - ONTARIO  
RE:  
Gergley Jakab and Ontario Heavy Xpress Ltd., Plaintiffs  
AND:  
Clean Harbors Canada, Inc., Defendant  
MacNeil J.  
BEFORE:  
COUNSEL: C. Wahlman – Lawyer for the Plaintiffs  
K. Kernick – Lawyer for the Defendant  
HEARD:  
November 23, 24 and 29, 2021 (via Zoom videoconference)  
REASONS FOR JUDGMENT  
Overview  
[1]  
[2]  
This action was brought for recovery of the value of a 2007 Volvo transport truck (“the  
Volvo Truck”) that was damaged by a fire that occurred on July 5, 2018. The Volvo Truck  
was owned by the Plaintiff, Ontario Heavy Xpress Ltd. (“OHX”), which operates as a  
transport truck service provider. The Plaintiff, Gergley Jakab (“Mr. Jakab”) is the sole  
director and shareholder of OHX and was the driver of the Volvo Truck.  
The primary issue for determination is whether the Defendant, Clean Harbors Canada, Inc.  
(“Clean Harbors”), was contractually obligated to purchase insurance that would have  
covered the fire damage to the Volvo Truck.  
Background  
[3] On January 23, 2017, the Plaintiffs and the Defendant entered into a written services  
contract, titled a National Transportation Lease Agreement (Cdn.), whereby the Plaintiffs  
agreed to provide freight haulage services for Clean Harbors and to furnish Clean Harbors  
with the trucking equipment owned by the Plaintiffs (“the NTLA”).  
Page 1 of 17  
[4]  
[5]  
Mr. Jakab began earning a living in Canada as a transport truck driver in 2014. In March  
2015, he purchased the Volvo Truck and incorporated OHX through which he operated the  
Volvo Truck and received income.  
Mr. Jakab testified that he received the NTLA contract by email from Lisa I. who worked in  
the Burlington office of Clean Harbors. He believes he signed the contract at home. He  
states that no wording was brought to his attention and nothing was discussed with him  
before he signed. He also testified that he was not told to get legal advice or to get advice  
from an insurance broker before signing. Mr. Jakab stated that he was not 100% clear what  
was in the NTLA contract since English is his second language, although it looked similar to  
other contracts he had signed before with other companies. He stated that he read the  
contract through before signing it and that he knew it was a standard form and he could not  
change the terms. He admitted that he was not required to enter into the contract and that he  
had agreed to its terms but he explained that he is not an insurance expert or a legal expert.  
[6]  
[7]  
Mr. Jakab’s evidence was that, before he signed the contract, he was not aware of Section 13  
of the NTLA regarding damage to equipment, or of clause 2 in Schedule 2 regarding Clean  
Harbors not making any representations or warranty with respect to the extent or adequacy  
of insurance.  
Mr. Jakab admitted that he did not ask Clean Harbors if he could maintain his own insurance  
on the Volvo Truck and that, before signing the NTLA, he did not discuss insurance with  
anyone at Clean Harbors. However, his evidence is that sometime after signing, he asked  
either Lisa I. or Kim S., who also worked in Clean Harbors’ Burlington office, if he was  
“fully covered” because he needed to provide information to CLE Leasing Enterprise Ltd.  
(“CLE Leasing”), the company from which he was leasing the Volvo Truck, and they told  
him that he was “fully covered”. (He thinks he had this conversation with Lisa I.) Mr. Jakab  
admitted that this was not a detailed discussion and that he did not ask whether there was  
first party property damage or fire coverage. He also did not ask to see the insurance  
policies. He stated that he had been satisfied with receiving the pink insurance slip and the  
certificate of liability coverage and being told that he was “fully covered”.  
[8]  
As support for his understanding that he was fully covered, Mr. Jakab also pointed to clause  
3 of Schedule 2 of the NTLA where it provides for a deductible of $2000 for “Damage to  
Tractor forming part of the equipment”. He stated that he understood this to mean that, if  
there was any damage to his truck, he would be liable to pay $2000 and the insurance  
company would cover the rest.  
Page 2 of 17  
[9]  
Mr. Jakab further gave evidence that, after signing the NTLA, he heard that Clean Harbors  
self-insured its vehicles and that it would pay up to $250,000 for any damage. While he  
initially stated that he believes it was Lisa I. who told him this, on cross-examination, he  
acknowledged that he might have heard it from another truck driver.  
[10]  
Mr. Jakab testified that it is standard practice in the transport business that the plate owner  
obtains full insurance and that he relied upon his past business experiences. Mr. Jakab’s  
evidence was that he had sub-contracted work with approximately four companies as an  
owner-operator and that each of those companies provided the licence plates and took out  
the insurance for the vehicle. Those policies were not in evidence before me, however.  
[11]  
Mr. Jakab testified that he did not take out a separate insurance policy on the Volvo Truck  
because, according to his knowledge, it was not possible to double-insure a vehicle in  
Ontario. He further testified that if Clean Harbors had made it known to him that it had not  
taken out full insurance, he would not have worked for Clean Harbors and he would not  
have signed the NTLA.  
[12]  
[13]  
On July 5, 2018, the Volvo Truck had an electrical fire and sustained damage. Mr. Jakab  
testified that, at the time of the fire, he was cleaning and servicing the Volvo Truck to get  
ready to pick up a load. He stated that he kept the truck in good mechanical condition and it  
was regularly serviced over the years; this was not disputed by Clean Harbors.  
After the fire, Mr. Jakab communicated with Jim Stull (“Mr. Stull”), the former Director of  
National Transportation at Clean Harbors, by telephone and text. Their discussions went on  
over the course of approximately two months. Mr. Stull looked into paying the Plaintiffs for  
the loss of the Volvo Truck and an amount of $18,000 - $20,000 (US) was floated. In  
August 2018, Mr. Jakab also inquired of Mr. Stull about renting or driving another truck for  
Clean Harbors but was told there were no internal trucks available. Mr. Jakab’s evidence  
was that, during this time, he was led to believe Clean Harbors was going to pay for the  
Volvo Truck but that, in late September 2018, Mr. Stull informed him that Clean Harbors  
would not cover it because a trailer had not been hooked on the back at the time of the fire  
and because Clean Harbors did not have insurance for the fire damage. After hearing this, on  
September 19, 2018, the Plaintiffs sold the Volvo Truck for salvage to stop incurring storage  
fees.  
[14]  
In October 2018, the Plaintiffs retained a lawyer to assist in recovering from Clean Harbors  
or its insurer the value of the Volvo Truck and related losses. After receiving a demand letter  
from then Plaintiffs’ counsel, on or about November 15, 2018, Clean Harbors reported the  
incident to its insurer for the loss. By correspondence dated February 5, 2019, however, then  
counsel for the Plaintiffs was informed that the policy underwriter, Chubb Insurance  
Page 3 of 17  
Company of Canada, had determined that “there is no comprehensive or All Perils coverage  
under Clean Harbors policy CAC330021” to cover the damage to the Volvo Truck.  
As a result, the Plaintiffs commenced the within action. They argue that Clean Harbors is  
liable since: (i) it had control over the NTLA and it ought to have obtained “all insurance” to  
insure the Volvo Truck; (ii) it should have made it clear to Mr. Jakab that there was no  
property damage coverage to enable him to choose not to drive the Volvo Truck and to work  
elsewhere; or (iii) it should have covered the damage to the Volvo Truck itself, as a business  
expense, consistent with how it self-insures its own vehicles. The Plaintiffs seek damages  
for the value of the Volvo Truck. Mr. Jakab’s evidence was that his capital investment in the  
truck was just under $54,000.00. The Plaintiffs also called an expert witness who gave an  
opinion that the value of the Volvo Truck at the time of the fire was $30,000.00 (Cdn) plus  
taxes. The Plaintiffs further claim damages for the towing and storage fees incurred and the  
cost of obtaining a repair estimate. Finally, they seek damages for loss of income as Mr.  
Jakab had no ability to work during the months that he had no truck to drive. He states that it  
took him a year to find new stable employment.  
[15]  
The Issues  
[16] The primary issues to be determined are as follows:  
a.  
b.  
c.  
Did Clean Harbors breach the NTLA by not obtaining first party property damage  
insurance coverage for the Volvo Truck?  
Did Clean Harbors make misrepresentations regarding the insurance coverage  
available to the Plaintiffs?  
Was Clean Harbors negligent in its dealings with the Plaintiffs?  
Relevant Provisions of the NTLA  
[17] The relevant provisions of the NTLA are Sections 13 and 18 which read:  
13. DAMAGE TO EQUIPMENT – The Contractor shall be solely  
responsible for loss or damage to the Equipment however caused and the  
Contractor agrees to indemnify and save harmless each of Clean Harbors’  
clients and Clean Harbors in respect of any claim for any loss or damage to the  
Equipment. Any insurance maintained by the Contractor in respect of damage  
to the Equipment shall contain a waiver by the insurer of any right of  
subrogation as against each of Clean Harbors and Clean Harbors’ clients and  
their respective employees, agents, officers and directors. The foregoing  
paragraph shall not apply to damage caused solely by willful misconduct or the  
direct negligence of Clean Harbors or its employees.  
Page 4 of 17  
18.  
ENTIRE CONTRACT – This Contract including the schedules  
attached hereto form the entire Contract between the parties and cancels and  
supersedes any and all previous written or oral Contracts between the  
Contractor and Clean Harbors; however, it may be modified or amended from  
time to time provided such changes are agreed to in writing between Clean  
Harbors and the Contractor.  
[18]  
[19]  
Schedule 1 to the NTLA identifies the “Equipment” as being the Volvo Truck, sets out the  
compensation to be paid, and lists the required safety-related equipment to be supplied by  
the Plaintiffs.  
Schedule 2 – Insurance contains the following relevant provisions:  
1.  
Clean Harbors will make all insurance, except non-owned trailer legal  
liability coverage, available to the Contractor for the purpose of insuring the  
Equipment and the Contractor under policies of insurance obtained and  
maintained by Clean Harbors. The insurance made available to the Contractor  
by Clean Harbors shall only provide coverage for claims or losses arising while  
the Contractor is performing obligations or services under this Contract.  
2.  
The insurance coverage made available by Clean Harbors to the  
Contractor shall be subject to (a) a limit of coverage not exceeding $5,000,000,  
and (b) the terms and conditions of the policies of insurance from time to time  
obtained by Clean Harbors, including without limitation, all exclusions of  
liability contained in such policies. Clean Harbors makes no representation or  
warranty with respect to the extent or adequacy of the insurance coverage made  
available by it and assumes no responsibility for the adequacy of such  
insurance. The Contractor shall be solely responsible to satisfy himself as to the  
adequacy of the coverage afforded by such insurance.  
Analysis  
(i)  
Did Clean Harbors breach the NTLA by not obtaining first party property damage  
insurance coverage for the Volvo Truck?  
[20]  
It is the Plaintiffs’ position that the NTLA required Clean Harbors to provide full insurance  
for the Volvo Truck, including first party property damage insurance, and that, in reliance on  
this requirement, the Plaintiffs did not obtain their own “duplicate insurance”. The Plaintiffs  
allege that since the Defendant failed to obtain the required insurance, it breached the  
parties’ contract. The Plaintiffs submit that Sections 6 and 7 of the Ontario Automobile  
Page 5 of 17  
Policy (OAP 1), the standard policy, address what would have been covered had Clean  
Harbors obtained property damage coverage. Under section 6.2, there would have been  
payment for the cost of damage to the vehicle, its equipment, contents and for loss of use.  
They note that fire damage is specifically referred to in s. 7.1.1 of the OAP 1. And, under  
section 7.7, an insurer would have paid either the cost to repair or the actual cash value of  
the vehicle at the time it was damaged less the deductible.  
[21]  
[22]  
It is Clean Harbors’ position that, by the terms of the NTLA, it only agreed to make  
available to the Plaintiffs the insurance coverage that it obtained and maintained under its  
policies, and that the contract made clear that such insurance was limited in scope and  
subject to the terms, conditions and exclusions of those policies. Clean Harbors disputes that  
the NTLA required it to place first party property damage insurance on the Volvo Truck.  
When interpreting a contract, a decision-maker must read the contract as a whole, giving the  
words used their ordinary and grammatical meaning, consistent with the surrounding  
circumstances known to the parties at the time of formation of the contract: Sattva Capital  
Corp. v. Creston Moly Corp., 2014 SCC 53, at para. 47.  
[23]  
[24]  
The words of one provision must be considered in harmony with the rest of the contract and  
in light of its purposes and commercial context: Tercon Contractors Ltd. v. British Columbia  
(Transportation and Highways), 2010 SCC 4, at para 64.  
The Plaintiffs rely on Sander Holdings Ltd. v. McDiarmid Lumber Ltd., 2012 SKPC 19  
(Sask. Prov. Ct.). As the court in that case held, at para. 145, determining the terms of a  
contract requires an assessment of the evidence, including the oral testimony and documents  
filed, and some construction on the part of the court. The court cited §553 of the Canadian  
Encyclopedic Digest – Contracts – IX – Interpretation of Contract – 1 – General Principles  
which includes:  
… The scope of the surrounding circumstances to be considered will vary from  
case to case, but should encompass those factors which assist the court in  
searching for an interpretation that promotes the true intent of the parties. At  
the same time, the words of the contract must not be overwhelmed by a  
contextual analysis, since the court’s task is not to make a new contract for the  
parties. The intention of the parties is determined in the objective sense of a  
reasonable person by reference to the surrounding circumstances at the time of  
signing of the contract.  
And §557:  
Where possible, effect must be given to all terms of the contract and none are  
to be rejected as surplusage or as having no meaning. The absence of words  
Page 6 of 17  
may be considered. Similarly, a court must strive to harmonize apparently  
conflicting terms by attempting to reasonably give meaning to each of the terms  
in question; one clause or the other will be ruled ineffective only if such an  
interpretation cannot be found. … Conflicting provisions will not be considered  
meaningless and unenforceable unless they are so clearly repugnant that the  
effect of one clause virtually destroys that of another. …  
[25]  
[26]  
Where a plaintiff seeks to have a contract interpreted in a particular manner, it bears the  
burden of establishing with reasonable clarity the correctness of such an interpretation: see  
Sander Holdings Ltd., at para. 152, citing §631 of Canadian Encyclopedic Digest –  
Contracts – IX – Interpretation of Contract – 13 – Burden of Proof.  
The NTLA must be considered as a whole. No one paragraph can be read and interpreted in  
isolation, let alone one sentence or one phrase. The NTLA is not a long or complicated  
contract. In reviewing and considering the entire document, I find that the language in the  
NTLA obligated Clean Harbors to make available to the Plaintiffs only that coverage found  
in the policies of insurance that Clean Harbors obtained and maintained. Based on the  
evidence before me, I am satisfied that it did that. The problem for the Plaintiffs is that that  
insurance coverage did not include first party property damage coverage.  
[27]  
[28]  
By virtue of clause 2 of Schedule 2, the Plaintiffs were solely responsible for satisfying  
themselves as to the adequacy of the insurance coverage provided by Clean Harbors. Here,  
the Plaintiffs made no inquiries of Clean Harbors respecting the insurance coverage in place  
before or at the time of entering into the NTLA. They did so at their own peril. If the  
Plaintiffs had made the appropriate inquiries, they would have discovered the gap in fire  
coverage and could have taken out additional insurance.  
When asked by the Defendant’s counsel if the NTLA imposed a positive duty on him to  
satisfy himself as to the adequacy of insurance coverage, Mr. Jakab denied that he had such  
a duty because he had been told that he was covered wholly by insurance. At his  
examination for discovery, Mr. Jakab agreed that there were different kinds of insurance  
coverage available. I am of the view that it was not reasonable for Mr. Jakab to have  
assumed that all losses would be covered and then not make the appropriate inquiries in  
order to satisfy himself that that was indeed the case, as the NTLA obligated him to do.  
[29]  
The Plaintiffs submit that nowhere in the list of covenants set out in Section 1 of the NTLA  
does it state that the contractor is required to obtain insurance or provide proof of insurance.  
I agree. However, Section 13 and the entirety of Schedule 2 of the NTLA deal with the  
parties’ obligations as it relates to insurance. I do not accept that Mr. Jakab read the NTLA  
but was not aware of Section 13 or clause 2 of Schedule 2. These two provisions are in the  
same font and type as the other sections, and clause 2 is located just below clause 1 of  
Page 7 of 17  
Schedule 2 which Mr. Jakab must have read since he relies on the term “all insurance” found  
therein.  
[30]  
[31]  
With respect to the Plaintiffs’ contention that Section 6 of the OAP 1 would have applied,  
the OAP 1 itself states that this insurance is required by law. The evidence before me  
indicates that Clean Harbors did have Direct Compensation – Property Damage Coverage in  
place for the Volvo Truck. There was no breach of the NTLA in this regard. Since Clean  
Harbors’ policy included this coverage, it was for the insurer to determine that it did or did  
not apply in respect of the fire damage to the Volvo Truck.  
I find that the Plaintiffs have not met their onus of establishing with reasonable clarity that  
the NTLA obligated Clean Harbors to purchase first party property damage insurance  
coverage for the Volvo Truck.  
Conflicting Clauses  
[32] The Plaintiffs contend that the following clauses found in the NTLA are conflicting:  
(i)  
Clause 13 of the NTLA that says the contractor is responsible for damage to the  
equipment and to indemnify Clean Harbors and its clients for claims for loss or  
damage to the equipment. The Plaintiffs argue this is inconsistent with Clean Harbors’  
obligation to obtain “all insurance” for the purpose of insuring the Volvo Truck and  
that it is completely contradictory to the fact that Clean Harbors did get liability  
insurance. They take the position that Section 13 should be disregarded as it renders  
Schedule 2 repugnant.  
(ii) The first sentence of clause 2 of Schedule 2 regarding limits of $5 million and being  
subject to the terms of the policies including exclusions of liability. The Plaintiffs  
submit that this is unclear and could refer to statutory conditions such as driving  
without a valid licence. They argue this language would not cause a contractor to think  
that something was missing.  
(iii) The third sentence of clause 2 of Schedule 2 requiring the contractor to satisfy himself  
as to the adequacy of insurance. The Plaintiffs submit that this is also in direct conflict  
with Clean Harbors’ obligation to get all insurance.  
(iv) Clause 3 of Schedule 2 that outlines deductibles including for damage to or theft of a  
tractor. The Plaintiffs argue that this clause is in direct contradiction to the  
requirement for Clean Harbors to provide all insurance to cover the equipment, and  
that it is inconsistent with having no property damage coverage and could easily  
mislead a reader.  
Page 8 of 17  
[33]  
I am not persuaded that any of these clauses are conflicting. The Plaintiffs’ argument in this  
regard is premised on Clean Harbors being obligated to get “all insurance” meaning every  
available coverage, even optional coverage. Such an interpretation may have been available  
if the first sentence of clause 1 of Schedule 2 had read simply: “Clean Harbors will make all  
insurance, except non-owned trailer legal liability coverage, available to the Contractor for  
the purpose of insuring the Equipment and the Contractor.” But the first sentence does not  
read that way since, after the word “Contractor”, it continues on with the words: “under the  
policies of insurance obtained and maintained by Clean Harbors.” In addition, there are  
other pertinent clauses that cannot be ignored, including especially clause 2 of Schedule 2.  
All of the provisions regarding insurance must be read in conjunction with each other.  
[34]  
[35]  
I am of the view that to adopt the Plaintiffs’ interpretation of clause 1 of Schedule 2 would  
be to effectively make a new contract for the parties, which is something the court is not to  
do.  
When read and considered together, I find that the impugned provisions can co-exist.  
Section 13 of the NTLA provides that the Plaintiffs are responsible for damage to the  
equipment and must indemnify Clean Harbors and its clients for loss or damage to the  
equipment. This provision can be understood in harmony with Schedule 2 and the third party  
liability insurance that Clean Harbors had in place in the event of a motor vehicle accident. I  
am of the view that Section 13 supports the Defendant’s position that it only intended to  
provide third party liability insurance coverage under its policies. Section 13 specifically  
refers to “insurance maintained by the Contractor” which contemplates the Plaintiffs being  
able to obtain their own first party property damage insurance for the Volvo Truck. With  
respect to the first sentence of clause 2 of Schedule 2, it is quite clear in stating the limit of  
coverage and the fact that the coverage is subject to the terms and conditions of the policies  
obtained by Clean Harbors. This language serves to identify the extent of insurance being  
made available to a contractor by Clean Harbors. Regarding the third sentence of clause 2 of  
Schedule 2, this does not conflict with Clean Harbors’ obligation to make insurance  
available since the phrase “all insurance” is qualified by the words “obtained and maintained  
by Clean Harbors”. Finally, regarding clause 3 of Schedule 2, I find that this language is not  
inconsistent with the third party liability coverage provided by Clean Harbors since, if there  
was a motor vehicle accident involving a third party, a contractor could be required to pay a  
deductible with the rest of the loss or damage covered by the insurer.  
[36]  
I am of the view that the language used in Section 13 and in Schedule 2 is clear,  
unambiguous and understandable to a reasonable and objective person. It places the  
obligation squarely on the Plaintiffs to confirm that the insurance coverage was appropriate  
to their needs and for their purposes. The Plaintiffs were in the best position to know what  
Page 9 of 17  
those needs were, especially in light of their leasing agreement with CLE Leasing which  
contained the following insurance requirement:  
8.  
INSURANCE. Upon delivery, the Lessee bears total responsibility for  
the Equipment and accepts the risk of loss or damage to the Equipment. The  
Lessee shall obtain and maintain an insurance policy for liability against all loss  
of or damage to the Equipment according to the value and the terms and  
conditions which shall be satisfactory to the Lessor. The insurance policy shall  
name the Lessor and the Lessee as insured and shall name the Lessor as sole  
beneficiary of the indemnity provisions in case of loss or damage. …  
Unconscionability  
[37]  
The Plaintiffs submit that the NTLA should be considered in light of unconscionability and  
the court’s equitable power to set aside unfair agreements resulting from unequal bargaining  
power. They argue that Clean Harbors is a large, sophisticated corporation and one of the  
largest hazardous waste haulers in North America while Mr. Jakab is the sole shareholder of  
OHX, speaks English as a second language, was dependent on Clean Harbors since he drove  
exclusively for it, and was not permitted to negotiate the terms of the NTLA. While they  
acknowledge the clause in the NTLA that required the Plaintiffs to satisfy themselves about  
the adequacy of insurance, they argue that Clean Harbors did not provide all insurance  
documents and did not tell the Plaintiffs to get advice or that there was no property damage  
coverage. They identify specifically Section 13 and clause 2 of Schedule 2 as provisions that  
should be set aside, and rely on the case Uber Technologies Inc. v. Heller, 2020 SCC 16, in  
support of their arguments in this regard.  
[38]  
There are two elements that need to be proved by a party claiming unconscionability: (i)  
proof of inequality in the bargaining positions of the parties; and (ii) proof of an improvident  
or unfair transaction: Uber Technologies, at paras. 62 and 64. An inequality of bargaining  
power exists when one party cannot adequately protect their interests in the contracting  
process: Uber Technologies, at para. 66. A bargain is improvident if it unduly advantages  
the stronger party or unduly disadvantages the more vulnerable; improvidence is measured  
at the time the contract is formed: Uber Technologies, at para. 74.  
[39]  
[40]  
In this case, I am not persuaded that the Plaintiffs were unable to adequately protect their  
interests since there is no evidence that they could not have sought advice and information  
on the adequacy of the insurance coverage being provided to them under the Clean Harbors  
policies before signing the NTLA or afterwards, and no evidence that they could not have  
obtained additional insurance coverage for the Volvo Truck as required.  
Nor am I persuaded that the NTLA is improvident. There was no evidence establishing that  
Clean Harbors benefited or was unfairly enriched by the insurance coverage provisions set  
Page 10 of 17  
out in the contract or that the Plaintiffs were unduly disadvantaged by those terms. The  
Plaintiffs did not establish that fire loss coverage was a standard term in service contracts  
like the one at issue here or that it was reasonable for the Plaintiffs to have expected that fire  
loss coverage would be provided. In the OAP 1 terms, “All Perils” which includes loss due  
to fire is an optional coverage which has to be specially contracted for. It is not required by  
law in Ontario. I am of the view that it was not unfair or improvident for the NTLA to  
obligate the Plaintiffs to be responsible for ensuring that the insurance coverage in place for  
the Volvo Truck was adequate for their needs.  
Contra Proferentum  
[41]  
Counsel for the Plaintiffs submits that the NTLA is unclear or contradictory and, therefore,  
the contra proferentum doctrine should apply and the contract interpreted against Clean  
Harbors’ interests as the party that drafted it. The Plaintiffs contend that Clean Harbors was  
obligated to get “all” insurance to insure the Volvo Truck but that it obtained none for the  
truck itself.  
[42]  
For the reasons set out above, I do not find the NTLA to be ambiguous or conflicting such  
that two or more interpretations are reasonably available. Accordingly, there is no need to  
apply contra proferentum in these circumstances: Sander Holdings Ltd., at para. 153.  
Exclusionary Clause  
[43] Counsel for the Plaintiffs submits that the exclusionary clause found in clause 2 of Schedule  
2 ought to have been specifically brought to Mr. Jakab’s attention by Clean Harbors and/or  
bolded, highlighted, underlined or in larger font. They rely on Tilden Rent-A-Car Co. v.  
Clendenning (1978), 18 O.R. (2d) 601, 83 D.L.R. (3d) 400 (Ont. C.A.), and Apps v. Grouse  
Mountain Resorts Ltd., 2020 BCCA 78, in support of their argument that this clause is an  
onerous exclusionary clause that should be strictly construed and any ambiguity resolved  
against Clean Harbors who seeks to rely on it. They submit that the onus rests on Clean  
Harbors to establish that the exclusion of liability clause for insurance was brought to the  
attention of and made clear to the Plaintiffs. They argue that Clean Harbors did not do  
anything to bring this exclusion of liability to the Plaintiffs’ attention and the clause should  
be disregarded.  
[44]  
I find that the cases Tilden Rent-A-Car Co. and Apps are clearly distinguishable. The instant  
situation did not involve a consumer transaction where there was unequal bargaining power  
or little opportunity to get informed about the terms of the applicable contract. Further, the  
exclusionary clause was not set out in fine print on the back of the document. I am of the  
view that, in reviewing the NTLA, a reasonable and objective person would have seen  
clause 2 of Schedule 2 and understood it to mean that Clean Harbors was not guaranteeing  
the adequacy of insurance coverage being provided and that the contractor was responsible  
Page 11 of 17  
for ensuring that the insurance in place was appropriate for his needs. I see no reason to  
disregard this clause in the circumstances.  
Dependent Contractor Relationship  
[45]  
Counsel for the Plaintiffs submits that there is a good argument to be made that Mr. Jakab  
was a dependent contractor with Clean Harbors such that an employment relationship could  
be found. They argue that if such a finding was made, then Clean Harbors could be held  
liable to pay for the Volvo Truck since it self-insures for property damage to the trucks it  
owns or leases that are driven by its employees.  
[46]  
The testimony of John Ross (“Mr. Ross”), Senior Vice-President of national logistics at  
Clean Harbors, was that Clean Harbors self-insures for vehicles it directly owns or leases  
and then claims those damage payments as a business expense. Based on this evidence, I am  
of the view that it is not necessary for me to determine whether Mr. Jakab could be  
considered a dependent contractor since it is the fact that Clean Harbors owns or leases a  
vehicle in its own name that is the relevant factor, and not that the vehicle is being driven by  
an employee. Here, the Volvo Truck was not owned or directly leased by Clean Harbors so  
Clean Harbors would have no obligation to self-insure it.  
[47]  
The Plaintiffs also point to communications, including texts between Mr. Jakab and Mr.  
Stull, that led the Plaintiffs to believe the damage to the Volvo Truck would be covered by  
Clean Harbors or its insurer. I acknowledge that it would have been confusing and  
disappointing for the Plaintiffs to have initially been told by text from Mr. Stull that  
“Insurance group approved this” only to subsequently be told that there was, in fact, no  
coverage. However, the evidence was not clear regarding exactly what had been “approved”  
by the insurance group. Further, the relationship between the parties was governed by the  
NTLA and it does not oblige Clean Harbors to pay for such damage or loss.  
Entire Agreement Clause  
[48]  
The NTLA contains an “entire agreement” clause. As held in Houle v. Knelsen Sand and  
Gravel Ltd., 2016 ABCA 247, at para. 23, the point of such a clause is “that the obligations  
of the parties will be determined in accordance with the written terms of the contract, not  
extraneous negotiations and discussions that have not been reduced to writing, and thus  
formally acknowledged by the contracting parties”.  
[49]  
I find that the NTLA’s entire agreement clause applies and, to the extent there was any  
representation made by Clean Harbors staff about the Volvo Truck being covered for fire  
loss after the contract’s execution, it does not form part of the NTLA as it was not agreed to  
by the parties in writing. There was no evidence before me to support interpreting the entire  
agreement clause to mean something different than what it says it means.  
Page 12 of 17  
(ii) Did Clean Harbors misrepresent the insurance coverage available to the Plaintiffs?  
[50]  
The Plaintiffs argue that Clean Harbors “caused” two misrepresentations. The first, in  
writing, by virtue of clause 1 of Schedule 2 stating that Clean Harbors would provide “all  
insurance” for the “purpose of insuring the Equipment”. And the second, verbally, when Mr.  
Jakab asked and was told that he was “fully covered” by either Lisa S. or Kim I. (The  
Plaintiffs note that it was Kim I., terminal manager, who signed the NTLA on behalf of  
Clean Harbors.) The Plaintiffs submit that this was a clear misrepresentation by Clean  
Harbors to the Plaintiffs to the detriment of the Plaintiffs since the Defendant’s witnesses,  
Mr. Ross and Lou Pransky (“Mr. Pransky”), Vice-President of Risk Management at Clean  
Harbors, both admitted that Clean Harbors never had property damage insurance to cover  
the Volvo Truck.  
[51]  
It is the position of Clean Harbors that it did not make any misrepresentation about  
insurance coverage before or at the time Mr. Jakab signed the NTLA or thereafter. The  
evidence of Mr. Pransky was that the pink card (proof of insurance) given to Mr. Jakab  
confirms coverage for only third party liability coverage and no first party coverage at all.  
He stated that Clean Harbors does not offer first party coverage of the sort that would cover  
the Plaintiffs’ fire loss. Clean Harbors does not provide any other or different coverage to  
any of its independent contractors and all coverage that is made available under Clean  
Harbors’ insurance policies deals only with third party liability. Counsel for Clean Harbors  
also argues that, with respect to Mr. Jakab’s discussions with Kim S. or Lisa I., the NTLA  
was already signed so any subsequent conversation could not form part of the contract.  
There is also no evidence what this person meant if they did tell Mr. Jakab that the truck was  
“insured fully” or “fully covered” or that they knew that Mr. Jakab was taking their response  
to mean that first party property damage insurance was included. Counsel contends that  
saying that the vehicle was “fully covered” could have meant fully insured for the purposes  
of being able to drive on Ontario’s roadways, which the Volvo Truck was because there was  
third party liability coverage in the event of a motor vehicle accident. Counsel for the  
Defendant notes that the Plaintiffs did not call any of these other witnesses to testify as to  
what statements were made or what was meant by them.  
[52]  
I find that, aside from the terms of the NTLA itself, there is no evidence before me of any  
representations being made by Clean Harbors prior to or at the time of signing of the  
contract about the extent of insurance coverage. The evidence of Mr. Jakab himself is that he  
did not discuss insurance with Clean Harbors before or at the time of executing the contract.  
I am satisfied that the NTLA was clear that the Plaintiffs were to be solely responsible for  
any loss or damage to the Volvo Truck; that the insurance available to the Plaintiffs was as  
found in the policies obtained and maintained by Clean Harbors; and that the NTLA  
obligated the Plaintiffs to satisfy themselves as to the adequacy of the insurance coverage  
Page 13 of 17  
provided. In the circumstances, I find that Clean Harbors did not misrepresent the insurance  
coverage available to the Plaintiffs pursuant to the NTLA.  
[53]  
[54]  
With respect to what, if any, representation was made to Mr. Jakab by Lisa I. or Kim S.  
about being fully covered, I find that the Plaintiffs have not met their burden of proof in  
establishing on a balance of probabilities who told him this and that their statement was  
intended to convey that “fully covered” included first party property damage insurance for  
the Volvo Truck.  
I also agree with the contention of counsel for the Defendant that, even if someone told Mr.  
Jakab that the Volvo Truck was “fully insured”, this statement could be considered true in  
the sense that the Volvo Truck was insured to the full extent required by Ontario law  
respecting third party liability insurance.  
(iii) Was Clean Harbors negligent in its dealings with the Plaintiffs?  
[55]  
The Plaintiffs argue that Clean Harbors was negligent by failing to properly consider the  
wording of the NTLA, by failing to obtain property damage insurance for the Volvo Truck,  
and by making representations to the Plaintiffs both in writing and verbally that they were  
fully covered. It is the position of the Plaintiffs that finding a duty of care owed by Clean  
Harbors should not be a hurdle since there was a contract and direct communication between  
the parties for over one-and-a-half years up to the date of the fire. The Plaintiffs argue that  
they relied upon the representations that the Volvo Truck was fully covered and Mr. Jakab  
continued to drive the truck under the NTLA. The Plaintiffs submit that the uncontradicted  
evidence of Mr. Jakab was that the usual practice for leasing was that the provider of the  
licence plates would get all insurance. They argue that this is supported by Clean Harbors  
transferring the licence plates using Clean Harbors’ insurance and by the first sentence of  
clause 1 of Schedule 2. Given Mr. Jakab’s past experience of entering into similar lease  
agreements with other companies, it was reasonable for him to infer that Clean Harbors’  
covenant to provide all insurance included damage to the truck from fire. Mr. Jakab had a  
financial interest in signing and performing under the NTLA. After signing, Mr. Jakab  
specifically inquired about the insurance to which Clean Harbors’ management employees  
stated the equipment was fully insured. Damages resulted from these misrepresentations and  
his reliance on same. The Volvo Truck has not been paid for nor have any of the other losses  
and expenses been covered that would typically be paid for by insurance.  
[56]  
Clean Harbors denies that it owed a duty of care to the Plaintiffs or was negligent. It argues  
that the Plaintiffs have failed to prove the existence of an established category of duty of  
care whereby a commercial entity owes a duty of care to insure the assets of another  
commercial entity. Clean Harbors submits that, to the extent the Plaintiffs argue that a duty  
of care arises because Clean Harbors was contractually obligated to insure the Volvo Truck  
Page 14 of 17  
for first party property damage, this conflates the Defendant’s contractual duties with a duty  
of care. It is also Clean Harbors’ position that the insurance required to operate a vehicle on  
Ontario roadways was liability insurance for third parties’ damages and injuries which is the  
insurance coverage that it had obtained. There is no evidence that Mr. Jakab asked anyone  
specifically about first party property damage or fire damage insurance coverage or that he  
asked what fully covered meant.  
[57]  
The parties agree that to be successful in a claim for negligent misrepresentation a plaintiff  
must prove the following matters:  
a)  
b)  
c)  
d)  
e)  
there must be a duty of care based upon a special relationship;  
the representations are inaccurate and misleading;  
the representations were made negligently;  
the plaintiff relied upon the representations; and  
reliance was detrimental in the sense that damages resulted.  
See Doumouras v. Chander, 2019 ONSC 6056, at para. 25; and Queen v. Cognos Inc.,  
[1993] 1 S.C.R. 87, 45 C.C.E.L. 153 (S.C.C.), at para. 34.  
[58]  
I am not convinced that Clean Harbors owed a duty of care based on any sort of special  
relationship here. This was an ordinary commercial transaction between two businesses for  
the purpose of entering into a provision of services relationship. Both parties had the  
opportunity to review the terms of the contract and seek advice as to those terms before  
signing. Mr. Jakab admitted that he could have chosen not to sign the NTLA and not work  
for Clean Harbors. I find that there were no representations made by Clean Harbors that, to  
its knowledge, were inaccurate or misleading. I do not find the representations made by  
Clean Harbors to have been made negligently. To the extent Mr. Jakab may have been told  
that he was “fully covered” by the Burlington office, there is no evidence as to what the  
speaker actually meant. Further, this exchange occurred after the NTLA was signed and so  
such statement was not relied upon in the making of the contract and did not induce the  
Plaintiffs to enter into the contract. Accordingly, looking at the whole of the relationship  
between the parties, I find that there is no evidence of a negligent misrepresentation or any  
type of negligence on the part of Clean Harbors as it relates to the Plaintiffs.  
[59]  
If I am wrong in this regard, I find that any duty of care that Clean Harbors owed was  
discharged by its inclusion of clause 2 of Schedule 2 which put the Plaintiffs on notice that  
they shall satisfy themselves as to the adequacy of the insurance coverage provided by Clean  
Harbors. By this provision, Clean Harbors made it clear to the Plaintiffs that it was making  
no representation regarding the extent or adequacy of the available insurance coverage and  
that it was assuming no responsibility for the adequacy of that coverage.  
Page 15 of 17  
Disposition  
[60]  
For the foregoing reasons, the action is dismissed.  
Assessment of Damages  
[61]  
While I have dismissed the Plaintiffs’ action, in the event that I am subsequently held to be  
wrong in the result, I will assess their damages.  
[62]  
At trial, each of the parties called expert evidence regarding the value of the Volvo Truck. I  
prefer the expert opinion of Kevin Sheehan, who was called as a witness on behalf of the  
Plaintiffs, over the evidence of the Defendant’s expert, Rocky Loomis. Mr. Sheehan is an  
employee of Sheehan’s Truck Centre Inc., Sheehan’s Leasing Ltd., and Sheehan’s Appraisal  
Services. I find Mr. Sheehan to have expertise with Volvo trucks and with the Ontario  
market and market rates. In addition, the Defendant sent the Plaintiffs to Sheehan’s Truck  
Centre Inc. to get a repair estimate and inspect the Volvo Truck for the cause of the fire. I  
infer from this that Clean Harbors acknowledges that Sheehan’s Truck Centre Inc. has the  
appropriate experience to provide an estimation of value. Mr. Loomis works at Ballard  
Mack Sales and Services Inc. in Avon, Massachusetts. While I find that he has expertise in  
the American truck market, in his evidence, he admitted that in providing his opinion about  
the worth of the Volvo Truck, he did not know the truck was in Canada. As well, I find that  
his expertise is primarily with Mack trucks, not Volvo trucks. His experience in selling  
Volvo trucks was limited to having sold five trucks during the period 2001-2008. He further  
acknowledged that he had no experience in selling trucks in Ontario.  
[63]  
Mr. Sheehan testified that, in his opinion, the fair market value of the Volvo Truck at the  
time of the fire was $33,900.00, inclusive of HST. I would accept this value and award  
$33,900.00 in damages minus the $3,955.00 salvage amount the Plaintiffs received.  
[64]  
[65]  
I would award the storage fees in the amount of $3,661.20, the towing costs in the amount of  
$1,178.03, and the cost of the damage repair estimate in the amount of $490.99.  
With respect to the claim for loss of income, I have considered the following factors: the  
Plaintiffs had a duty to mitigate; Mr. Jakab was told in late August 2018 there were no  
alternate driving opportunities available with Clean Harbors; Mr. Jakab began other  
employment in September 2018; and there was no evidence establishing that other driving  
positions were not available to Mr. Jakab at other companies. In all of these circumstances, I  
would assess reasonable damages at $28,500.00, representing three months’ income at  
$9,500.00 per month.  
Page 16 of 17  
Costs  
[66]  
I would urge the parties to agree on costs. If they are unable to do so, then costs submissions  
may be made as follows:  
a.  
By June 20th, 2022, the Defendant shall serve and file its written costs submissions,  
not to exceed three pages, double-spaced, together with a draft bill of costs and copies  
of any pertinent offers; and  
b.  
The Plaintiffs shall serve and file their responding costs submissions of no more than  
three pages, double-spaced, together with a draft bill of costs and copies of any  
pertinent offers, by July 5th, 2022; and  
c.  
d.  
The Defendant’s reply submissions, if any, are to be served and filed by July 12th,  
2022 and are not to exceed two pages.  
If no submissions are received by July 12th, 2022, the parties will be deemed to have  
resolved the issue of the costs and costs will not be determined by me.  
B. MacNeil J.  
__________________________  
MacNEIL J.  
Released:  
May 31, 2022  
Page 17 of 17  


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