Court File and Parties

CITATION: AMANDA NICOLE SCALE et al v. ING INSURANCE COMPANY et al, 2013 ONSC 1304

COURT FILE NO.: DC 12-425ML

DATE: 2013-03-01

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: ESTATE OF AMANDA NICOLE SCALE, deceased, DONALD WAYNE SCALE, NANCY ELIZABETH SCALE, ADAM SCALE, MARGARET SCALE, NICHOLAS SCALE, IDA BOND and ART BOND, Plaintiff

AND:

ING INSURANCE COMPANY OF CANADA, THE COOPERATORS INSURANCE, PILOT INSURANCE COMPANY, THE CITADEL ASSURANCE and STATE FARM INSURANCE

BEFORE: The Honourable Mr. Justice D. J. Taliano

COUNSEL: Counsel, for the Respondents (Plaintiffs), William P. Dermody Counsel, for the Appellant (Defendant) , Mary Teal

HEARD: March 1, 2013

ENDORSEMENT

[1] On December 4, 2012, Reid J. dismissed a motion brought by the Defendant Ing Insurance Company of Canada, for summary judgment which requested the dismissal of the plaintiffs’ case. The motions court judge held that he did not have a full appreciation of the evidence and the issues and that it was not in the interests of justice to dismiss the case on the merits.

[2] Ing seeks leave to appeal the ruling pursuant to Rule 62.02(4) of the Rules of Civil Procedure. To be successful, Ing must demonstrate (a) that there is a conflicting decision on the issue and it is desirable that leave be granted; or (b) that there appears good reason to doubt the correctness of the ruling and the appeal involves matters of such importance that leave to appeal should be granted.

[3] In my opinion, neither ground has been established.

[4] The facts are reviewed in Justice Reid’s ruling and I will not repeat them.

[5] It is clear that the plaintiffs’ ultimate entitlement to relief depends on the interpretation of s. 4 and s. 1.8 of the OPCF 44R Family Protection Coverage. S. 4 provides that the insurer’s maximum liability is the amount by which the limit of family protection coverage exceeds the total of all limits of “motor vehicle liability insurance”. The latter expression is defined in s. 1.8 as the amount stated in the Certificate of Automobile Insurance as the limit of liability of the insurer with respect to liability claims.

[6] The difficulty is that the liability policy in this case was issued in the Province of New Brunswick and no Certificate of Automobile Insurance issued under the Insurance Act of Ontario has been issued to the at-fault driver. Justice Reid concluded that the “lack of details of the applicable New Brunswick insurance policy and potentially the New Brunswick Insurance Act” prevented him from fully appreciating the evidence and the issues. His conclusion is one with which I concur.

[7] He also alluded to the implications which might arise from Ontario’s pro rata settlement approach to claims if it differs from the “first past the post” approach that may have been used in the settlement of other claims arising from the same collision giving rise to the plaintiffs’ claims. On this issue he also concluded that the matter required a trial rather than a summary disposition.

[8] In both respects his decision is in conformity with the Court of Appeal’s decision in Combined Air Mechanical Services Inc. v. Flesch, 2011 ONCA. Apart from cases where the parties have agreed on a summary judgment process or where claims or defences are shown to have no merit, motions court judges should only grant summary judgment in circumstances where they are able to fully appreciate the evidence and issues in a way that permits a fair and just adjudication of the dispute.

[9] It was Reid J.’s view, as it is mine, that the contractual anomalies as disclosed by the materials in this case, do not accommodate a summary disposition of the issues.

[10] In addition, Reid J.’s decision is an interlocutory one and is not precedent setting. Reid J. specifically remarked that he was not making any determination on the merits of the respective positions argued before him but rather was simply concluding that a genuine issue had been raised that required a trial to resolve. To that extent, the ruling cannot be viewed as undermining insurance practices or customs in Ontario.

[11] With respect to the argument that the ruling is at odds with the Court of Appeal decision in Romas v. The Prudential Insurance Company of Canada [1996] O.J. No. 4185, I cannot agree. Romas was a case involving two Ontario insurers and two Ontario policies of insurance and is therefore distinguishable on that ground alone among others which I need not detail.

[12] For these brief reasons, leave to appeal is denied. The parties have asked that I not deal with the issue of costs until they have had time to receive this ruling. If the issue of costs needs to be addressed the court may be spoken to through the trial co-ordinator’s office in Hamilton.

TALIANO J.

Date: March 1, 2013