CITATION: Forestall v. Carroll, 2015 ONSC 5883
COURT FILE NO.: DC-15-241
DATE: 20150923
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
B E T W E E N:
MAUREEN FORESTALL and
Kaitlyn MacDonell, for the Plaintiffs
DYLAN JAMES FORESTALL
Plaintiffs
- and -
ELIZABETH CARROLL, CELINA
Blair Y. Nitchke, for Celina Carroll,
CARROLL, by her Litigation Guardian
Moving Party
LORNA HORLACHER, and TD HOME
AND AUTO INSURANCE COMPANY
Martin Forget for TD, Responding Party
John Friendly for the Ontario Minister
Of Finance on behalf of and in the name of
Elizabeth Carroll
Defendants
READ at Toronto: September 21, 2015
DECISION
D.L. Corbett J.:
[1] This is a motion for leave to appeal the dismissal of Celina Carroll’s motion for summary judgment.
[2] The issue on the motion for summary judgment is a discrete but central issue in these proceedings.
Background
[3] The case concerns a car accident in 2005 involving a single vehicle driven by Elizabeth Carroll. Celina Carroll was Elizabeth’s mother and owned the car.
[4] Celina pleaded that she did not give her daughter permission to drive her vehicle.
[5] Elizabeth had no insurance of her own to respond to the claims arising from the accident.
[6] In light of these developments, the plaintiffs obtained an order adding TD as a defendant. TD was Dylan Forestall’s insurer, and it was added to respond to a claim under Dylan’s uninsured motorist coverage.
[7] Celina Carroll died in 2011.[^1]
The Motion Below
[8] Celina moved for summary judgment dismissing the claims as against her on the basis that her daughter did not have permission to drive the car at the time of the accident.
[9] Only TD opposed this motion.
[10] There was considerable evidence before the motions judge to support Celina’s position:
(a) Celina testified at her examination for discovery on September 21, 2009 that she did not allow her daughter, Elizabeth, to drive her car.
(b) Celina reported the accident to her insurer on September 22, 2005, and told the insurer at that time that she had not allowed her daughter to drive the car.
(c) Celina’s insurance policy did not include Elizabeth as a driver. Celina testified that she was waiting for her daughter to take a driver’s education course before adding her to the insurance policy and permitting her to drive the car;
(d) Celina laid a complaint with police of theft against her daughter shortly after the accident. She told her insurer that she had done this because her daughter did not have permission to take the car;
(e) Elizabeth testified twice on examinations for discovery – on September 21, 2009 and March 31, 2014. Both times she testified that she did not have her mother’s consent to take and operate the car at the time of the accident. She said that her mother was napping at the time that she took the car.
[11] In her pleadings, Elizabeth alleges that she did have her mother’s permission to operate the car at the time of the accident.
[12] Elizabeth’s pleadings are not evidence. Indeed, there was no evidence before the court that Elizabeth did have her mother’s permission to operate the car, apart, of course, from the legal presumption that may arise from Elizabeth’s possession of the car.
Decision on the Motion
[13] TD opposed the moving party’s attempt to rely upon Celina’s discovery transcript on the motion. The motions judge did not rule expressly on this issue. In his decision, the motions judge did not refer to the transcript and appeared to place no weight upon it.
[14] TD opposed the moving party’s attempt to rely upon the discovery evidence of Elizabeth Carroll. The motions judge found that Elizabeth had made an “admission” when she pleaded that she had her mother’s permission, and that she should not be able to withdraw her “admission” in the evidence presented on the motion. Thus the motions judge placed no weight on Elizabeth’s sworn evidence that she did not, in fact, have her mother’s permission to operate the car.
[15] The motions judge concluded that the moving party had presented a “deficient record” on the motion, and that the principles in Hryniak v. Mauldin should not be used to invoke the procedure of a “mini-trial” rather than an action proceeding in the normal course to a traditional trial on the merits.
[16] The motions judge then dismissed the motion and did not seize himself of the matter.
Leave to Appeal
[17] I consider that leave to appeal should be granted for four reasons:
(i) The motions judge’s failure to rule on the admissibility of the discovery evidence of Celina Carroll, and his failure to take into account or give any weight to that evidence.
(ii) The motions judge’s refusal to admit the discovery evidence of Elizabeth Carroll because of its inconsistency with her pleadings. The moving party, Celina Carroll, was adverse in legal interest to Elizabeth Carroll, and on ordinary principles should have been entitled to adduce Elizabeth’s discovery evidence in aid of her case;
(iii) The motions judge’s conflation of the “mini-trial” with the broad range of alternatives to the traditional trial mandated in Hryniak v. Mauldin.
(iv) The motions judge failed to seize himself of the issue before him and gave no reasons for so doing, aside from those expressed in respect to point three, above.
[18] The issue before the motions judge was focused. Its resolution will surely speed resolution of this entire, longstanding, legal proceeding. All of the evidence is in writing other than the oral testimony of Elizabeth Carroll. If the motions judge concluded that he needed to hear oral evidence from Elizabeth Carroll in order to arrive at a fair and just decision, it should have been easy to schedule a brief appearance, perhaps for half a day, to hear that evidence. This testimony aside, I see no reason why the case, as presented to the motions judge, will be any different to a trial judge on this central issue. It seems to me an ideal case for the application of Hryniak to arrive at a final disposition of the issue of whether Elizabeth had her mother’s permission to drive the car.
[19] It is a rare case where leave to appeal will be granted from a dismissal of a motion for summary judgment, since the moving party lives to fight the issues on the merits again, on another day. For me, this is that rare case. I see good reason to doubt the motions judge’s evidentiary rulings, and I conclude that it is a matter of general importance to the administration of justice to consider whether the approach taken by the learned motions court judge is consistent with the principles set out in Hryniak v. Mauldin.
[20] Leave to appeal is granted; costs of the motion for leave to appeal fixed at $4,000, inclusive, payable in the discretion of the panel hearing the appeal.
D.L. Corbett J.
Released: 20150923
CITATION: Forestall v. Carroll, 2015 ONSC 5883
COURT FILE NO.: DC-15-241
DATE: 20150923
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
MAUREEN FORESTALL and
DYLAN JAMES FORESTALL
Plaintiff
- and –
ELIZABETH CARROLL, CELINA
CARROLL, by her Litigation Guardian
LORNA HORLACHER, and TD HOME
AND AUTO INSURANCE COMPANY
Defendants
DECISION
D.L. Corbett J.
Released: 20150923
[^1]: The action was subsequently continued against the Estate of Celina Carroll by order of Master Glustein (as he then was). It is not clear why the title of proceedings has not been amended to reflect this change).