Court File and Parties
COURT FILE NO.: CV-14-513170 DATE: 20160623 SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Igal Shapiro, Plaintiff AND: John Doe, Economical Mutual Insurance Company and The Superintendent of Financial Services, Defendants
BEFORE: Pollak J.
COUNSEL: Mitchell J. Barber, for the Plaintiff Jason Rabin, for the Defendant Economical Mutual Insurance Company John Friendly, for the Defendant The Superintendent of Financial Services
HEARD: April 29, 2016
Endorsement
[1] The Defendant, Economical Mutual Insurance Company (“Economical"), brings this motion for summary judgment to dismiss the claim against it for insurance coverage. The Defendant, The Superintendent of Financial Services (“the Superintendent”), also asks this Court to dismiss the Plaintiff’s claim against it. In this action, the Plaintiff, Mr. Shapiro claims that because he was hit by an unidentified driver, he is entitled to claim insurance benefits from Economical, the insurer of the Plaintiff’s father, or to compensation from the Motor Vehicle Accident Claims Fund. The Superintendent of Financial Services was added as a party to this matter pursuant to s. 13 of the Motor Vehicle Accident Claims Act, R.S.O. 1990, c. M.41 (“MVAC Act”), which allows the Superintendent to be added as a party to an action where an individual has been injured by an unidentified motor vehicle with an unidentified owner and driver.
[2] The Plaintiff’s claim is that he was hit by a car while he was crossing the street. The driver got out of the car, asked if he was okay and offered him a ride if he needed one. The Plaintiff said he was okay and walked home. He did not ask the driver for his name or for any other information.
[3] Economical argues that to be successful in his action, the Plaintiff has to prove that he was hit by an “unidentified automobile” as defined by s. 265 of the Insurance Act, R.S.O. 1990, c. I.8 and the OPCF 44R Family Protection Endorsement (“the Endorsement”). Section 265 defines “unidentified automobile” as “an automobile with respect to which the identity of either the owner or driver cannot be ascertained”. Economical submits that the Plaintiff has not provided the necessary evidence on this motion.
[4] The Superintendent’s defence is that the Plaintiff was not injured by an “unidentified motor vehicle, owner or driver,” as required by section 16 of the MVAC Act.
[5] In the alternative, the Superintendent submits that if the Plaintiff's injuries were caused or contributed to by an unidentified motor vehicle, driver, or owner, the Plaintiff has not made all reasonable efforts to identify the car owner and driver, as required by s. 17 of the MVAC Act. Because the Plaintiff is insured under the Economical insurance policy (with his father) to the minimum limits required by law, there can therefore be no payment out of the Taxpayer's Fund. Economical’s position is, however, that the Plaintiff is not covered by the policy in question.
[6] There is no dispute between the parties with respect to the test to be applied on a motion for summary judgment. The Supreme Court of Canada has set out the test in Hryniak v. Mauldin, 2014 SCC 7, [2014] S.C.R. 87. Although the burden of proof on this motion is on Economical to prove that it is entitled to a dismissal of this action, the Plaintiff does have the burden of proving that there is evidence on this motion to support his claim. The Plaintiff must prove through evidence that there is a genuine issue requiring a trial. It is clear that the Plaintiff must “lead trump or risk losing” and cannot rely on the possibility that other evidence will be adduced at trial will support his claim.
[7] The main argument of the Defendant on this motion is that the evidence presented by the Plaintiff is deficient as he relies on the evidence of a law clerk employed by his lawyer’s law firm. This law clerk deposes that the Plaintiff was in a state of shock and that he was not able to make proper decisions after he was hit by the car. She bases this belief after reading statements made by the Plaintiff in his discovery transcript. She further attaches medical documents to her Affidavit. There is no direct medical evidence. At the hearing of this motion, Economical relied on “read-ins” from the Plaintiff’s examination for discovery. Notwithstanding the fact that Economical argued in its Factum that the Plaintiff was not entitled to rely on his own evidence on discovery in this motion, it abandoned this argument after the Plaintiff objected to the use of the “read-ins” because the Defendant had not filed the transcript. The Defendant therefore agreed that on this motion the Plaintiff should be permitted to rely on his own evidence given at his examination for discovery. The Court therefore had, as evidence on this motion, the law clerk evidence I have referred to above and “read-ins” from the Plaintiff’s examination for discovery. The read-ins relied on are as follows:
By the Defendant
“116. Q. All right. So the question is, is it correct to say that you did have an opportunity to ask him his name, you did have an opportunity to get his information, but you chose not to. A. Yes
Q. Did you lose consciousness? A. No.
Q. You were lucid and aware of your surroundings after the accident? A. I was in pain, but yes.
112 Q. I take it you didn’t look at the car to see what the licence – you didn’t write down the licence plate number. A. No.
Q. Correct to say, though – and, sorry, let me – is it fair to say that at the time you didn’t think that this was a significant injury, and – A. No.
Q. – you didn’t see any need to get his contact information. A. – I think I was more in shock as to what had just happened, and that I just got up.
Q. Okay. You were not – you were lucid, though, correct? A. Yeah, but I just – I don’t know, I was just ...
Q. All right. So the question is, is it correct to say that you did have an opportunity to ask him his name, you did have an opportunity to get his information, but you chose not to. A. Yes.
Q. Okay. And is it fair to say that the reason that you chose not to was because you didn’t think you were seriously injured at the time? MR. MORIARTY: I’m not sure that that’s what he said. He did say that he was in shock, which would affect his decision-making abilities, so I think it would probably, based on what he said, be a combination of the two, that partially he was in shock, and he did say he wasn’t sure – he didn’t realize the extent of his injuries at that time.
BY MR. RABIN:
- Q. Do you agree with what your lawyer just said? A. Yes.
By the Plaintiff
Q. Okay. Now, in the course of the accident, you said you didn’t lose consciousness. Did you hit your head at all? A. Yes.
Q. Why didn’t you report it to the police at the time? A. Because I was in excruciating pain.
Q. What did they find? A. They found that I fractured my shoulder.
Q. You’re bowing forward, so is that to say that you fell on your front? A. Again, I was – it hit me and I – and I was pushed backwards. I don’t know how. I was pushed backwards and I hit – I’m thinking I – either I hit the ground – my body hit – everything hit all at the same time.”
[8] Economical argues on this motion that there is no evidence that the Plaintiff was not able to identify the driver because his decision-making abilities were impaired after he was hit, nor is there evidence that such impairment is the reason why he did not ask for any information from the driver who hit him. There is no medical evidence before the court that he suffered a head injury, a concussion, or any injury which would impair his judgment. Economical submits that there is therefore no evidence that supports Mr. Shapiro’s claim that he was incapable of identifying the driver who hit him. Therefore, it is argued that his claim against Economical, which is based on the fact that he was hit by an unidentified driver, cannot succeed.
[9] The Plaintiff does not dispute the submission that if there was no "unidentified automobile", as defined by the applicable legislation, and in the Endorsement, he has no cause of action against Economical and that his claim against Economical and the Superintendent must be dismissed.
[10] The Plaintiff submits that the evidence on this motion does establish that he hit his head in the accident, and was "in shock" and that therefore this Court must conclude that his decision-making abilities were impaired.
[11] The Plaintiff submits that this action should proceed to a trial due to the possibility that expert evidence will be adduced in order to corroborate the Plaintiff’s evidence regarding the involvement of the unidentified motor vehicle, such as expert engineering and/or medical evidence to opine on the nature of the Plaintiff’s injuries in comparison to his version of events. He submits that the validity of such evidence should properly be tested at a trial, where the credibility of the experts and/or their opinions can be evaluated by a trier of fact. There is no such evidence before the court on this motion.
[12] Economical relies on jurisprudence which finds that the onus is on the Plaintiff to prove that the identity of the driver cannot be determined. See e.g. Vescio v. Peterman (1999), 45 O.R. (3d) 613 (Ont. C.A.) and Hooper v. John Doe, 2015 ONSC 2745, 49 C.C.L.I. (5th) 314. Economical argues that the Plaintiff has not met his onus. His examination for discovery evidence is clear – the Plaintiff stated that he could have asked the person for his identity but he did not.
[13] In Hryniak v. Mauldin, the Supreme Court of Canada gave us a roadmap of the approach to follow on a motion for summary judgment. The court stated the following at para. 66:
"On a motion for summary judgment under Rule 20.04, the judge should first determine if there is a genuine issue requiring trial based only on the evidence before her, without using the new fact-finding powers. There will be no genuine issue requiring a trial if the summary judgment process provides her with the evidence required to fairly and justly adjudicate the dispute and is a timely, affordable and proportionate procedure, under Rule 20.04(2)(a).
If there appears to be a genuine issue requiring a trial, she should then determine if the need for a trial can be avoided by using the new powers under Rules 20.04(2.1) and (2.2). She may, at her discretion, use those powers, provided that their use is not against the interest of justice. Their use will not be against the interest of justice if they will lead to a fair and just result and will serve the goals of timeliness…”
[14] In this action, there are not many issues in dispute. The evidence on this motion does deal with the material issue in dispute. The evidence before the court is not contradictory. Applying the roadmap from the Supreme Court of Canada, I must consider whether, on the basis of the evidentiary record, there are genuine issues that require a trial. I must also ask myself if the evidentiary record in front of me provides me with the evidence I need to "fairly and justly adjudicate the dispute," bearing in mind the burden of proof of each party to adduce the required evidence.
[15] With respect to my evaluation of the evidence before me on this motion, the findings of Myers J. in the case of Paramandham v. Holmes et al., 2015 ONSC 1903, 47 C.C.L.I. (5th) 82, are helpful.
“[36] In my view, a motion for summary judgment is a most efficient and, especially, proportionate procedure for dealing with a case within the monetary jurisdiction of the Small Claims Court such as this one. I am confident that I can make the necessary findings and apply the relevant law on the record before the court. Of significance is that there are no real contradictions in the medical evidence that the parties have chosen to adduce.
[37] Many cases have commented upon the inappropriateness of delivering a lawyer’s affidavit on a motion for summary judgment. e.g. Ferreira v. Cardenas, 2014 ONSC 7119 at para. 13. Rule 20.02(1) provides that on a motion for summary judgment, the court may, if appropriate, “draw an adverse inference from the failure of a party to provide the evidence of any person having personal knowledge of contested facts.” There is an obligation on a party responding to a motion to summary judgment to “put his best foot forward” or to “lead trump or risk losing”. See: Sweda Farms v. Egg Farmers of Ontario, 2014 ONSC 1200 at para. 26. The Plaintiff did neither. In light of the paucity of the evidence put forward by the Plaintiff, I do not need to draw an adverse inference in this case. I can resolve the issues on the evidence before the court without making findings on contested facts. Were an inference required however, I would draw an adverse inference against the Plaintiff in light of his failure to answer the Defendants’ medical evidence of which he has had knowledge since 2012.
[38] The Plaintiff’s argument that his credibility is key to the case rings hollow in light of his failure to adduce evidence. Neither does the argument that more evidence is required hold water. The Plaintiff could have adduced whatever evidence he wished. The Plaintiff could have cross-examined the Defendants’ experts by summons to witness under rule 39.03(1). Alternatively, if he felt that summary judgment was an inappropriate procedure in light of the number of witnesses required and the lack of discoveries, he could have brought a motion for directions under rule 1.05 as discussed in Hryniak v. Mauldin, 2014 SCC 7 at para. 70. Moreover, the evidence to be obtained by examination for discovery of an insurance company executive or the opposite parties in a car accident has no bearing upon the injuries suffered by the Plaintiff. The evidence of the Plaintiff’s injuries is uniquely his to give and to support by appropriate objective, third-party and medical expert evidence.
[40] Counsel for the Plaintiff made strategic choices, perhaps cost based, or not, as to how to respond to this motion. The court will hold parties to those choices. See: ThyssenKrupp Elevator (Canada) Limited v. Amos, 2014 ONSC 3910 at para. 44. The alternative would indeed be a slippery slope in which counsel are encouraged to withhold their trump cards for trial. Trial by ambush tactics are the antithesis of efficient, affordable, and proportionate procedures.
[41] I agree with State Farm’s counsel that there is no inconsistency between the evidence relied upon by both sides. All of the evidence establishes that, at most, the Plaintiff suffers from minor injury within the definitions contained in the Minor Injury Guidelines. Even if his injury were not entirely “minor injury” it certainly is “predominantly a minor injury”. There is no credibility issue. There is no evidence that the Plaintiff suffers from “chronic pain” as described by the Supreme Court of Canada at para. 1 of Nova Scotia (Workers' Compensation Board) v. Martin; Nova Scotia (Workers' Compensation Board) v. Laseur, 2003 SCC 54. Therefore the issue of whether chronic pain related to minor injuries and whiplash associated disorders falls within the Minor Injury Guidelines does not arise in this case. Accordingly, even if Nadvornianski, supra, survives Hryniak, supra, (which I doubt) the “unsettled” issue of how chronic pain is dealt with under the Minor Injury Guidelines does not arise in this case.”
[16] I find that such reasoning is applicable in this case.
[17] I find that the evidence on this motion is sufficient to establish that there are no genuine issues requiring a trial. I can make a fair determination on the basis of the record before me. I do not need to use my discretion to determine if the need for a trial in this case could be avoided by the use of the court’s fact-finding powers.
[18] I find that the Plaintiff has not met his burden of proving that he was injured by an “unidentified motorist” as required for his action against Economical and the Superintendent to succeed. If the Plaintiff proceeded to trial with the evidence he has relied on in this motion, he could not succeed.
[19] The Plaintiff also relies on the argument that the Defendant paid the Plaintiff statutory accident benefits without challenging his entitlement to them. The Defendant has an insurance policy with the Plaintiff’s father who had coverage for injuries caused by negligence of unidentified motorists pursuant to s. 265 of the Insurance Act and pursuant to the Endorsement. Mr. Shapiro now argues that because Economical settled his claim for statutory accident benefits on a full and final basis that it cannot now refuse coverage on the tort claim. The Plaintiff relies on the Court of Appeal decision in Taggart (Litigation Guardian of) v. Simmons (2001), 52 O.R. (3d) 704 (C.A.) and McArdle v. Burger, 2007 ONCA 659, 87 O.R. (3d) 433 to establish this principal. Economical however, argues that that case does not stand for such a proposition. I agree.
[20] For all of these reasons, I find that the Plaintiff has not met his burden of proving that there is a genuine issue for trial. I find that the Defendant has met its burden of proof that summary judgment dismissing the Plaintiff's action should be granted.
[21] Notwithstanding that the Superintendent did not proceed with a motion to have the Plaintiff’s claim against it dismissed, the court is asked to dismiss this action against it if the court determines that there is no genuine issue on whether the Plaintiff qualifies for payment of his claim by Economical for the minimum limits required by s. 265 of the Insurance Act. No party, including the Plaintiff, addressed the issue of this relief. I therefore make no order for such relief.
Costs
[22] If the parties are unable to agree on costs, they may make brief written submissions to me no longer than three pages in length. The Defendant’s submissions are to be delivered by 12:00 noon on June 27, 2016, and the Plaintiff’s submissions are to be delivered by 12:00 noon on July 7, 2016. Any reply submissions are to be delivered by 12:00 noon on July 14, 2016.