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A summary judgment order granted on the mistaken premise of party consent was set aside.
The plaintiff was injured in a motor vehicle accident and sued his insurer, Unifund, under the unidentified motorist provisions of his automobile insurance policy.
Unifund brought a summary judgment motion to dismiss the claim on the basis that the identity of the owner and driver of the offending vehicle were known.
The motion judge granted the order on the mistaken premise that all parties had consented to it.
The plaintiff subsequently brought a clarification motion seeking to estop the defendants from raising identity defences at trial.
The Court of Appeal allowed the plaintiff's appeal, finding that the summary judgment motion was made on an erroneous basis and that taking "no position" on a motion is fundamentally different from consenting to it.
The court set aside all orders and dismissed the summary judgment motion without prejudice to Unifund's right to renew it.
