ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CV-10-49846
DATE: 2012/07/27
BETWEEN:
Dominion of Canada General Insurance Company Plaintiff – and – Meloche Monnex Inc. Defendant
Pat Peloso, for the Plaintiff /Respondent
James M. Brown, for the Defendant/ Moving Party
HEARD: June 28, 2012
REASONS FOR JUDGMENT ON MOTION
McLEAN J.
Overview
[ 1 ] The Defendant, Meloche Monnex Inc. (“Meloche”), moves for summary judgment to dismiss the claim brought against it by the Plaintiff, Dominion of Canada General Insurance Company (“Dominion”). The claim arises from the payment of statutory accident benefits arising from two separate motor vehicle accidents both involving the same injured insured, Amanda Bowles (“Bowles”). On September 1, 2004, Bowles sustained injuries in a motor vehicle accident and began receiving statutory accident benefits under her employer’s policy of insurance with Meloche. Bowles was subsequently injured in a second motor vehicle accident that occurred on April 30, 2005. Following the second motor vehicle accident Bowles received statutory accident benefits under her new employer’s insurance policy with Dominion. Dominion has alleged that it is entitled to indemnity from Meloche of all accident benefits that Dominion paid to Bowles as a result of the first accident of September, 2004. It is the Defendant’s position that the claim is not of any merit and that there is indeed no genuine issue to go forward to trial.
[ 2 ] In summary, the arguments for dismissal are:
Firstly, Dominion’s claim is without merit because there is no absolute obligation to pay benefits pursuant to the claim. To the extent that Dominion paid accident benefits as a result of the earlier accident, there is no cause of action against Meloche.
Similarly, Dominion has no valid basis for a claim of contribution with respect to benefits arising after April 30, 2005, as each accident triggers a fresh entitlement to statutory accident benefits under the Statutory Accident Benefits Schedule (Accidents On or After November 1, 1996) , O. Reg. 403/96 (“ SABS ”). These regulations that bring statutory accident benefits into effect contain provisions to prevent any double recovery, and there is no basis for any claim for contribution between insurers.
Even if any claim could be advanced by Dominion, such a claim could only be advanced by way of a private arbitration between insurers pursuant to the Disputes Between Insurers regulation, O. Reg. 283/95 . Until this is done Dominion cannot advance any such claim in the present action.
Finally, Dominion’s claim is statute barred by the Disputes Between Insurers regulation or is further statute barred under the Limitations Act , 2002, S.O. 2002, c. 24, Sch. B, as amended (“ Limitations Act , 2002”).
Facts
[ 3 ] There is really little issue about the accidents giving rise to the payment of statutory accident benefits. There is also no controversy over the fact that there is no binding precedent for the current situation.
[ 4 ] There is not much controversy that in both the 2004 and 2005 accidents Bowles suffered similar injuries, and as a result, she allegedly continues to suffer impairments of both a physical and a psychological nature. Because of the proximity in time between the accidents, there is great difficulty in segregating the impairments that are due to one accident as opposed to the other. The injuries and resulting impairments may be cumulative. The determination of causation is problematic according to the current record.
[ 5 ] The controversy occurs, though, between the insurance companies over what occurred with regard to the Meloche file. It is alleged the file was closed in 2007, and further that Meloche refused to make payments under SABS after Dominion became involved. There is also a controversy as to whether in June 2007, Dominion did or did not know that this file had been closed. It is Dominion’s position that it only became aware of the same when it approached Meloche regarding an equal splitting of Bowles’ current and future medical and rehabilitation benefits, which Meloche refused to do.
The Issues
[ 6 ] The issues are generally centred on the interpretation of certain aspects of the Insurance Act , R.S.O. 1990, c. I-8, and regulations. It is the Defendant’s view that the Disputes Between Insurers regulation is applicable to this sort of dispute. However, it is argued by the Plaintiff that it has no application as that particular regulation deals with disputes arising solely out of a single motor vehicle accident, wherein two or more insureds may be liable and the issue is one of priority. Here there are two accidents. There is a similar argument with regard to the provisions of the SABS . Here the issue is whether this is a case of double-recovery and whether the simple issue is one of equity between the insurers where each owes a separate and equal obligation to pay accident benefits, but one has refused to accept its proportionate share. It is also argued by the Defendant that these regulations provide a limitation other than the two-year limitation period under the Limitations Act , 2002. Meloche argues that these separate limitations apply. Dominion, however, states that the claim of November 2010 was prior to the two-year limitation in the Limitations Act , 2002.
[ 7 ] The main argument, however, aside from those mentioned above, is the applicability of summary judgment under rule 20.04 of the Rules of Civil Procedure , R.R.O. 1990, Reg. 194, indeed, whether the record before this Court can provide a full appreciation of the evidence and issues: see Combined Air Mechanical Services Inc. v. Flesch , 2011 ONCA 764 , 108 O.R. (3d) 1, at para. 50 . With respect to this aspect of the matter, Meloche is of the view that certainly with the documentary evidence present before the Court, such a full appreciation of the evidence and issues is clearly available. Since 2010, the Court has extended powers under rule 20.04 ; however, the issue still remains whether it is in the interests of justice for such powers to be exercised only at trial. Indeed, to further complicate matters, the action itself was commenced under the simplified procedure under Rule 76 of the Rules of Civil Procedure wherein the Court in Combined Air provided a further test at para. 254:
We wish to emphasize a significant additional factor that must also be considered in the context of a simplified procedure action. Given that simplified procedure claims are generally for amounts of $100,000 or less, the rule is designed to get the parties to trial with a minimum of delay and costs. Thus, one of the key objectives of the simplified procedure rule is to limit the extent of pre-trial proceedings and to bring the parties to an early trial conducted pursuant to tailored rules. ... [I]t will often be the case that bringing a motion for summary judgment will conflict with the efficiency that can be achieved by simply following the abridged procedures in Rule 76.
[ 8 ] Clearly here it is Meloche’s view that there is a sufficient record for the Court to adjudicate fairly on these matters. However, the Court notes certain problems with the record as it is currently constituted. Indeed, it is argued by Dominion that further evidence is required with regard to at least the following questions: When was Meloche’s claims file with respect to Bowles closed such that further treatment plans or requests for payment of medical and rehabilitation benefits were no longer being considered by it? When did Dominion discover that Meloche was no longer actively adjusting this file? Can Meloche rely on the Limitations Act , 2002 or any other statutory limitation act as a defence to a claim? Was the decision of Meloche to deny ongoing claims for benefits and to direct these claims to Dominion, a violation of its obligations under SABS ? Can Ms. Bowles’ ongoing impairments be said to arise from both the 2004 and 2005 accidents? Lastly, does a cause of action arise at law or in equity that entitles Dominion to claim indemnity for a portion of the benefits it paid to Bowles?
[ 9 ] Indeed, evidence on some of these questions may be determinative of the entire dispute between the parties. For example, if evidence can be brought forward that would convince the Court that there can be some sort of separation on a causal basis between one accident such that it could be determined which accident caused which disabilities or difficulties, then that clearly might be determinative of the matter.
[ 10 ] Likewise, with regard to the issues of the limitations, the limitations may well arise when the Court determines that Meloche closed its file and Dominion became aware of that closure. However, it may also be on the basis of a further evidentiary record that Dominion ought to have known that such action was being taken at an earlier date. This is unclear from the affidavits that are before the Court at this time. Moreover it may well be, depending on the evidence provided, that the limitations are continually arising, that is, a further limitation would arise from each payment made by Dominion where contribution would be due from Meloche.
[ 11 ] It is also agreed by both parties that the issues arising in this particular litigation are novel in that several of the questions that arise have never been canvassed, at least in this context, before. The Court of Appeal in Romano v. D’Onofrio , 2005 ONCA 760 , 77 O.R. (3d) 583, emphasizes that novel causes of action, particularly ones involving public concerns, are best determined on a fully developed record at trial rather than on a summary judgment. This case seems to have been confirmed even though it was decided before Combined Air by a Divisional Court ruling in Laiken v. Carey , 2011 ONSC 7629 , at paras. 14-18 . Clearly the issues before the Court are novel, and, as we have already determined, there are certain gaps in the record. Therefore, it is proper to dismiss this motion at this time. This is particularly true since it is an action under Rule 76 that should be brought to trial quickly and expeditiously. Therefore, the motion is dismissed.
Costs
[ 12 ] Counsel may address me within 30 days in writing with regard to costs.
Mr. Justice Hugh R. McLean
Released: July 27, 2012
COURT FILE NO.: CV-10-49846
DATE: 2012/07/27
ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: Dominion of Canada General Insurance Company Plaintiff – and – Meloche Monnex Inc. Defendant REASONS FOR JUDGMENT ON MOTION Mr. Justice Hugh R. McLean
Released: July 27, 2012