Court File and Parties
CITATION: Duncan v. Morton, 2012 ONSC 5200
DIVISIONAL COURT FILE NO.: 281/12
DATE: 20120913
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
BETWEEN:
JOHN DUNCAN and LAURA DUNCAN
Plaintiffs
– and –
BRIAN MORTON, 1747483 ONTARIO INC. O/A AFFORDABLE AUTOMOTIVE CENTRE and ALLSTATE INSURANCE COMPANY OF CANADA
Defendants
No One Appearing
Christopher I. R. Morrison, for the Defendant, 1747483 Ontario Inc. o/a Affordable Automotive Centre
Ian D. Kirby, for the Defendant, Allstate Insurance Company of Canada
HEARD at Toronto: September 13, 2012
Oral Reasons for Judgment
LAX J. (ORALLY)
- This dispute arises in the context of a motor vehicle accident caused by an uninsured driver in which the plaintiff, John Duncan was injured. The driver, the defendant Morton, was charged with operating a motor vehicle without consent and pleaded guilty to that offence a few months after the accident. The car was owned by the defendant, 1747483 Ontario Inc., operating as Affordable Automotive Centre. The plaintiff also sued Allstate Insurance Company of Canada, the insurer of the plaintiff’s motor vehicle. Allstate has crossclaimed against the defendant Affordable. Affordable sought summary judgment dismissing the claim of the plaintiffs and the crossclaim on the basis that they were an abuse of process. In view of the criminal conviction of the uninsured driver Affordable disputes it has any liability. Affordable relied on s.22.1 of the Evidence Act which provides as follows:
Proof that a person has been convicted or discharged anywhere in Canada of a crime is proof in the absence of evidence to the contrary that the crime was committed by the person … . (emphasis added)
The motion judge dismissed the summary judgment motion. After reviewing the facts and the test for summary judgment, the motion judge analyzed the relevant legal authorities as to the effect of the conviction and whether it should be regarded as preclusive. Allstate led evidence to the contrary, namely the transcript of evidence of Mr. Morton’s guilty plea and two affidavits from an employee of Allstate attaching notes of her investigation. This evidence raised questions about whether the motor vehicle was indeed operated without consent.
The motion judge correctly identified the “real issue” as whether Affordable, had proved that there was no genuine issue regarding a trial with respect to the issue of consent. He concluded that it had not. He carefully reviewed the decision of the Supreme Court of Canada in Toronto (City) v. C.U.P.E., Local 79, 2003 SCC 63, 2003 3 S.C.R. 77 and addressed each of the circumstances where re-litigation of a conviction does not amount to abuse of process. He explained why the Court could not have full appreciation of the evidence on the issue of consent without the matter going to trial, or at least to the discovery stage. It is in this sense that he concluded that the motion was premature. See Howell v. Wambolt, [2012] O.J. No. 3052 at para. 10.
The reasons of the motion judge are clear, comprehensive and in my view, correct.
The motion for leave to appeal is therefore dismissed.
COSTS
- I have endorsed the Motion Record to read, “For oral reasons, motion for leave to appeal is dismissed. Costs, as agreed, in the amount of $3,500.00.”
LAX J.
Date of Reasons for Judgment: September 13, 2012
Date of Release: September 21, 2012
CITATION: Duncan v. Morton, 2012 ONSC 5200
DIVISIONAL COURT FILE NO.: 281/12
DATE: 20120913
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
LAX J.
BETWEEN:
JOHN DUNCAN and LAURA DUNCAN
Plaintiffs
– and –
BRIAN MORTON, 1747483 ONTARIO INC. O/A AFFORDABLE AUTOMOTIVE CENTRE and ALLSTATE INSURANCE COMPANY OF CANADA
Defendants
ORAL REASONS FOR JUDGMENT
LAX J.
Date of Reasons for Judgment: September 13, 2012
Date of Release: September 21, 2012