Court File and Parties

Court File No.: CV-467367-12 Delina v. Amjad, Parveen and Royal Sun & Alliance Insurance Co., of Canada Court File No.: CV-81337-12 Date: 2016-09-13 Ontario Superior Court of Justice

Between: Jonathan Caithesan, Plaintiff – and – Saad Amjad, Tahira Parveen and The Dominion of Canada General Insurance Company, Defendants

And Between: Christo Delina, Plaintiff – and – Saad Amjad, Tahira Parveen and Royal & Sun Alliance Insurance Company of Canada, Defendants

Counsel: No one appearing Saad Amjad, acting in person James B. Davidson, for the Defendant The Dominion of Canada General Insurance Company No one appearing Mark W. Birdsell, Counsel for the Defendant Royal & Sun Alliance Insurance Company of Canada

Heard: July 28, 2016

Reasons for Decision

Charney J.:

Introduction

[1] On December 28, 2010, the defendant, Saad Amjad, took his mother’s car for a joyride without her consent. He was 16 years old. His friends, the plaintiffs Jonathan Caithesan and Christo Delina, both minors, were rear seat passengers in the car. Amjad lost control of the vehicle, it went off the road, and flipped into a ditch.

[2] Caithesan and Delina were seriously injured in the accident, and each commenced an action against Amjad and his mother, Tahira Parveen. Due to the fact that Amjad was operating his mother’s car without her consent or knowledge, the insurer of that vehicle took an off coverage position and refused to provide either defence or indemnity coverage to Amjad in relation to the accident and the lawsuit. Accordingly, the plaintiffs each commenced an action against their own insurers, Dominion General Insurance Company (Dominion) and Royal & Sun Alliance Insurance Co. of Canada (RSA). The defendant insurance companies defended the actions.

[3] The plaintiff Caithesan settled his claim with Dominion for $465,000 on February 3, 2015.

[4] The plaintiff Delina settled his claim with RSA for $65,000 on June 10, 2014.

[5] The two insurance companies proceeded with a cross-claim against the defendant Amjad for recovery of these payments.

[6] The defendant Amjad filed a statement of defence to each action in January 2013, but has acted in person since July 10, 2015.

[7] The two insurance companies have each brought motions for summary judgment with respect to their cross-claims against Amjad. Those motions were argued together on July 28, 2016.

Facts

[8] The defendant insurers have filed affidavit evidence in support of their respective motions for summary judgment. The facts set out below are derived from those affidavits. The defendant Amjad did not file any affidavit evidence in support of his position.

[9] The action arises out of a single motor vehicle accident that occurred on December 28, 2010, in Ajax, Ontario. As indicated above, Amjad took his mother’s car without her consent, and went on a joyride with his two friends, Caithesan and Delina, who were in the back seat. A third friend, who is not a party to this action and was not injured, sat in the front passenger seat.

[10] At the time of the motor vehicle accident Amjad had only his G-1 licence and knew that he was operating the vehicle in breach of his G-1 because he did not have a G licenced passenger sitting in the vehicle with him.

[11] The police report describing the accident states:

The motor vehicle was travelling southbound on Rossland Road when it lost control and ended up in the field …after rolling over…Rossland Road is a two lane Highway and runs straight on a hill where the incident occurred…There was no other traffic on the road at the time of the incident…There was also a dead animal at the suspected start point where the driver had lost control. There is no evidence on the exterior of the vehicle to indicate that the animal was hit and had caused the series of events leading up to the roll over. The dead animal could have caused the driver to maneuver in a manner that would cause the vehicle to lose control at higher than the posted speed limit. The series of events could have been avoided if the driver was driving with due care and attention to the road.

Amjad’s lack of driving experience and speed was a direct cause of the accident that took place and all the young men are very lucky to have lived through it.

[12] Following the accident Amjad was charged with careless driving pursuant to s. 130 of the Highway Traffic Act, R.S.O. 1990, c.H.8. He pled guilty to and was convicted of “unsafe move” contrary to s. 154(1)(a) of the Highway Traffic Act on June 3, 2011 (See: R.R.O. 1990, Reg. 950, Schedule 43, item 47, Proceedings Commenced By Certificate Of Offence under Provincial Offences Act, R.S.O. 1990, c. P.33).

[13] Caithesan was the most seriously injured of the occupants. As a result of the accident he sustained the following injuries:

• Brain injury with cognitive impairment
• Behavioural changes
• Headaches
• Dizziness
• Fatigue
• Sleep disorder
• Depression
• Anxiety
• Left hip fracture
• Fractured nose
• Facial lacerations
• Bilateral knee pain
• Neck pain
• Low back pain

[14] Caithesan was treated by many doctors. One of these was a neuropsychologist who authored a neuropsychological report in April 2012, which diagnosed Caithesan with cognitive disorder, post-traumatic stress disorder and adjustment disorder with mixed anxiety and depressed mood.

[15] While Caithesan did return to high school he required an Individual Education Plan to graduate. He has gone on to university, but is considered a special needs student and requires special accommodation as a result of his injuries. He is expected to take two additional years to complete his degree and his average was significantly lower than his pre-accident average in high school.

[16] In support of his claim for future economic loss Caithesan delivered an Economic Loss Report authored by Ian Wolloch of the accounting firm Collins Barrow. That report concluded that he potentially stood to lose between $1.6 and 1.8 million in income over the course of his working life to age 65 as a result of his on-going impairments.

[17] Dominion settled the claim in its entirety for $465,000 broken down as follows:

• General Damages - $125,000
• Prejudgment Interest - $ 25,000
• Economic Loss - $200,000
• Housekeeping and Future Care - $ 50,000
• Costs, HST and disbursements - $ 65,000

[18] Delina was taken to the hospital by ambulance immediately after the accident. He was treated in the fracture clinic for nondisplaced fracture involving dorsal aspect of the right distal radial metaphysis. He also sustained injuries to his neck, right wrist, and upper and lower back, and was unable to return to work and school after the accident.

[19] Delina received extensive physiotherapy, as well as ongoing treatment from an orthopaedic surgeon and his family physician for his right wrist, neck pain and chronic back pain.

[20] Delina’s statutory accident benefits provider paid $29,475.06 in connection with the accident and medical and rehabilitation benefits, damage to clothing, housekeeping benefits and income replacement benefits.

[21] The plaintiff Delina settled his claim with RSA for $65,000 on June 10, 2014.

Summary Judgment

[22] The defendant insurers move for summary judgment with respect to their cross-claims against Amjad pursuant to Rule 20.01 of the Rules of Civil Procedure. Rule 20.04(2)(a) provides:

The court shall grant summary judgement if the court is satisfied that there is no genuine issue requiring a trial with respect to a claim or defence.

[23] Rule 20.04(2.1) sets out the powers of the court on a motion for summary judgment:

In determining under clause (2) (a) whether there is a genuine issue requiring a trial, the court shall consider the evidence submitted by the parties and, if the determination is being made by a judge, the judge may exercise any of the following powers for the purpose, unless it is in the interest of justice for such powers to be exercised only at a trial:

1. Weighing the evidence.
2. Evaluating the credibility of a deponent.
3. Drawing any reasonable inference from the evidence.

[24] These powers have been extensively reviewed by the Supreme Court of Canada in the case of Hryniak v. Mauldin, 2014 SCC 7 [2014] 1 S.C.R. 87. Even with these extended powers, a motion for summary judgment is appropriate only if the material provided on the motion “gives the judge confidence that she can find the necessary facts and apply the relevant legal principles so as to resolve the dispute” ( Hryniak at para. 50).

[25] The principles governing the admissibility of evidence on a summary judgment motion are the same as those that apply at trial, save for the limited exception of permitting an affidavit made on information and belief found in Rule 20.02(1) of the Rules of Civil Procedure: Sanzone v. Schechter, 2016 ONCA 566 at para. 15. In the present case the applicant insurance companies are relying on affidavits of counsel containing all relevant documents including excerpts from the transcripts of examinations for discovery of the defendant Amjad and relevant medical reports prepared by treating physicians and economic reports written by accounting experts. They have not filed affidavits by the experts themselves.

[26] In Sanzone the Court of Appeal held that:

As a general rule, when a party seeks to adduce expert evidence on a summary judgment motion, the evidence of the expert must comply with rule 53.03, unless the opinion evidence is based on the witness’ observation of or participation in the events in issue, as explained in Westerhof v. Gee Estate, 2015 ONCA 206, 310 O.A.C. 335, at paras. 60-62. A party can file either an affidavit from the expert containing his or her opinion or an affidavit from the expert with the report attached: Danos v. BMW Group Financial Services Canada, a division of BMW Canada Inc., 2014 ONSC 2060, [2014] O.J. No. 1802, at para. 29, aff’d 2014 ONCA 887.

[27] In the present case the moving parties have introduced their expert evidence in “information and belief” affidavits pursuant to Rule 20.02(1). Adducing an expert report in an “information and belief” affidavit effectively immunizes its author from cross-examination. In cases where damages are a live issue this may make it difficult for a court to have the confidence to find the facts necessary to resolve the dispute. In such cases Rule 20.02(1) provides that the court may “draw an adverse inference from the failure of a party to provide the evidence of any person having personal knowledge of contested facts”. While an information and belief affidavit may be insufficient in a case in which damages are contested, there is no real dispute regarding the damages claimed by the plaintiffs in this case. There is nothing to be gained by requiring the moving parties to go to the additional expense of having each expert file a separate affidavit in this case. Accordingly, I conclude that the expert reports are appropriately introduced by way of information and belief pursuant to Rule 20.02(1).

[28] Numerous cases since Hryniak have confirmed that in order to defeat a motion for summary judgment, the responding party must put forward some evidence to show that there is a genuine issue requiring a trial. A responding party may not rest on mere allegations or denials of the party’s pleadings, but must set out, in affidavit material or other evidence, specific facts showing that there is a genuine issue requiring a trial. The court will assume that the parties have placed before it all of the evidence that will be available for trial. The court may, where appropriate, draw an adverse inference from the failure of a party to provide the evidence of any person having personal knowledge of contested facts. The motion judge is entitled to assume that the record contains all of the evidence that would be introduced at trial. A summary judgment motion cannot be defeated by vague references as to what may be adduced if the matter is allowed to proceed to trial. (See for example Sweda Farms Ltd. v. Egg Farmers of Ontario, 2014 ONSC 1200 at paras. 33-34; Rahimi v. Hatami, 2015 ONSC 4266 at paras. 5-6; and Beckford v. Bathia, 2016 ONSC 5115 at paras. 8-12).

[29] In the present motion Amjad is self-represented. In Sanzone the Court of Appeal stated (at paras. 21-22):

Fairness requires a judge to accommodate a self-represented party’s unfamiliarity with the litigation process to enable her to present her case to the best of her ability: Davids v. Davids (1999), 125 O.A.C. 375 (C.A.), at para. 36 …

Of course, any accommodation made by a judge to a self-represented party must respect the rights of the other party: Davids, at para. 36. A defendant is entitled to expect that a claim of liability brought against it will be decided by the same rules of evidence and substantive law whether the plaintiff is represented by counsel or self-represented.

Analysis

[30] In the present motion Amjad did not file any responding material. I did provide him with an opportunity to present his position in court, even though many of his submissions should have been presented as evidence in an affidavit. His position is that there was contributory negligence on the part of the plaintiffs because they knew that he only had his G1 licence, they convinced him to take his mother’s car, and they had a lot of influence over him.

[31] Accordingly, the only real issue in dispute in this summary judgment motion is the issue of contributory negligence on the part of the plaintiffs.

[32] To begin with I am satisfied that there is no genuine issue requiring a trial with respect to the issues of negligence and damages.

[33] This was a single motor vehicle accident. There were no other cars on the highway when the accident occurred. Section 192(1) of the Highway Traffic Act, provides:

192. (1) The driver of a motor vehicle or street car is liable for loss or damage sustained by any person by reason of negligence in the operation of the motor vehicle or street car on a highway.

[34] Amjad was charged with careless driving, and he pled guilty to and was convicted of “unsafe move” contrary to s. 154(1)(a) of the Highway Traffic Act. This conviction is evidence of Amjad’s negligence (Caci v. MacArthur, 2008 ONCA 750, [2008] O.J. No. 4436 (C.A.); Bhattacherjee v. Marianayagam, 2013 ONSC 40, [2013] O.J. No.8 (S.C.) at paras. 28-33).

[35] In his examination for discovery Amjad testified that he saw what appeared to be an animal on the road, which he tried to avoid. The animal on the road was referred to in the police report as the “suspected start point where the driver had lost control”.

[36] Canadian courts have held that swerving to avoid an animal does not absolve a driver of his duty of care to protect his passengers. Regard for human life and safety must always come first and it is not reasonable to risk a passenger’s safety to avoid an animal. In the present case the evidence indicates that the animal was not even alive at the time of the accident, and the evidence in the police report is that the accident “could have been avoided if the driver was driving with due care and attention to the road”.

[37] In making this decision I have taken into account the fact that there was no other traffic on the road when Amjad saw the animal. The animal was probably not moving and does not appear to have been hit by the car. The road was straight where the accident occurred. The accident could have been avoided if the car had been driving the posted speed and with proper care and attention.

[38] In Birk v. Dhaliwal, 1995 BC CA 1812 the British Columbia Court of Appeal stated:

The cumulative effect of the foregoing circumstances establishes, in my view, that the respondent did not act reasonably in swerving off the roadway. He failed in his duty to the appellant and the other passenger in his car to take reasonable steps to ensure their safety. That he did not want to hurt the dog was both decent and understandable but, as a matter of law, he did not owe a duty to the dog - he owed a duty to his passengers. In the circumstances, his instinctive reaction of veering off the roadway to avoid striking the dog was negligent.

[39] Accordingly, there is no genuine issue requiring a trial with respect to Amjad’s negligence and I find that Amjad was negligent in the operation of the motor vehicle.

[40] Similarly, I find that there is no genuine issue regarding damages sustained by the plaintiffs as a result of the motor vehicle accident. In addition to the uncontested medical reports filed in support of this motion, both RSA and Dominion have filed affidavits from counsel attesting to the reasonableness of the respective settlements with the plaintiffs. Mr. Straitman, on behalf of RSA attested that the $65,000 settlement with Delina “was an advantageous settlement in view of the risks associated with proceeding to trial before a jury in this case.” Mr. Davidson, on behalf of Dominion, attested that $465,000 settlement with Caithesan “was arrived at during a full day mediation with a very experienced mediator…this settlement represented both a fair assessment of Jonathan Caithesan’s potential damages as well as a prudent resolution of this case in order to avoid the risk of a more adverse Judgment at trial.”

[41] In MacKean v. Royal & Sun Alliance Insurance Company of Canada, 2015 NSCA 33 the Nova Scotia Court of Appeal dealt with a case in which the insurer settled a motor vehicle accident claim for their insured and then sought recovery from the defaulting uninsured third party who caused the loss to their insured. The issue before the court was whether the court should assess the insured’s damages independent of the settlement or whether the insurer could rely on evidence of the reasonableness of the settlement. The Court of Appeal concluded that the insurer may proceed by filing proof that its settlement with the plaintiff was reasonable. The Court concluded at (para. 29):

The settled for amount must reflect likely recovery, or it will not be reasonable. Enough evidence needs to be led for the court to make that assessment.

[42] The Court noted that it is unlikely that an insurer would over pay its own insured because of the doubtful prospect of any recovery from the at-fault party. The Court stated (at paras. 30-31):

In terms of its obligation to pay its insured, the insurer has a common interest with the third party wrongdoer in resisting or limiting payment. Conversely, as a subrogated or assignee claimant against the third party, the insurer assumes the position of its insured, seeking to maximize its recovery. But the first precedes the second. Without payment to its insured – which the insurer is motivated to keep as low as reasonably possible – there will be no subrogated action against the wrongdoer.

It is especially unlikely that an insurer would overpay its insured in Section D [uninsured automobile coverage] cases, because of the doubtful prospect of any recovery from the defaulting third party (see for example, Somersall v. Friedman, 2002 SCC 59, para. 71). This circumstance is additional incentive for an insurer to pay no more than it must – i.e. no more than would be reasonable. As well, in limits cases where coverage is almost always exceeded, settlement at the insurance limit is further assurance that the settlement amount is reasonable. All these factors favour the reasonableness of settlement in such cases.

[43] In my view this mode of proceeding is entirely consistent with the principle of proportionality identified by the Supreme Court of Canada in Hryniak as one of the purposes of Rule 20. Given the fact that Amjad has filed no evidence to dispute either the damages claimed or the reasonableness of the settlement arrived at by the two insurers in this case, there is no genuine issue requiring a trial with respect to the damages issue in this case. I am satisfied on the basis of the uncontested evidence filed by Dominion and RSA that the settled amounts were reasonable and reflected the likely recovery of the plaintiffs. The added expense and delay of a trial is not necessary to the fair adjudication of this issue.

[44] Finally, with respect to the issue of contributory negligence, even taking into account Amjad’s submissions, notwithstanding that they were not in the proper form, I find that there are no genuine issues requiring a trial. The conduct of the passengers in convincing or influencing Amjad to take his mother’s car did not qualify as contributory negligence in this case. Passengers do not assume risk by getting into a motor vehicle (Dube v. Labar, 1986 SCC 67, [1986] 1 S.C.R. 649, at paras. 6–7).

[45] While the plaintiffs knew that Amjad was an inexperienced driver, this does not qualify as contributory negligence on their part. Amjad had a legal duty to drive with appropriate care and to keep the car under control regardless of his level of experience. Nor is there evidence that Caithesan and Delina could reasonably have avoided or mitigated the accident once Amjad began to drive negligently.

Conclusion

[46] In my view this is a case in which it is in the interests of justice to grant summary judgment. For these reasons the motions for summary judgment brought by the defendants RSA and Dominion against the defendant Amjad are granted.

[47] This Court Orders:

a. Summary judgment is granted in favour of The Dominion of Canada General Insurance Company against the defendant Saad Amjad in the amount of $465,000. b. Summary judgment is granted in favour of the defendant Royal & Sun Alliance Insurance Company of Canada against the defendant Saad Amjad in the amount of $65,000.

Costs

The parties have provided costs outlines. RSA claims $6,376.69 on a partial indemnity basis, Dominion claims $8,441.00 on a substantial indemnity basis. While the moving parties did have to compile comprehensive affidavits in support of their motion, each party filed one affidavit with the expert evidence based on information and belief. Given the fact that the defendant Amjad did not provide any responding material this case was not as complex or time consuming as it otherwise could have been. The parties have also been saved the cost of a trial by virtue of this decision. While I understand the obligation of RSA and Dominion to pursue this subrogated claim against Amjad, it is my view this is not an appropriate case for costs.

Justice R.E. Charney Released: September 13, 2016