SUPERIOR COURT OF JUSTICE - ONTARIO
COURT FILE NO.: CV-09-386030
DATE: 20120203
RE: PEZHMAN FADAIAZAD
Plaintiff
AND:
THE COOPERATORS GENERAL INSURANCE COMPANY
Defendant
BEFORE: Mr. Justice Lederer
COUNSEL:
Pezhman Fadaiazad, in person, for the Plaintiff (responding party)
David T.S. Wong , for the Defendant (moving party)
HEARD: January 5, 2012
ENDORSEMENT
[ 1 ] This is a motion for summary judgment.
[ 2 ] The question is whether, in the circumstances, this was the right procedure for the parties to obtain an expeditious and efficient resolution to their dispute.
[ 3 ] The plaintiff owned a car. It was insured through a policy issued by the defendant. The plaintiff says the car was stolen. He submitted a sworn Proof of Loss for the vehicle. The defendant denied the claim on the basis that the plaintiff had made false statements on the Proof of Loss. In denying the claim, the defendant relied on the Insurance Act , R.S.O 1990, Chapter I.8, s. 233(1), which states:
Where,
(a) an applicant for a contract,
(i) gives false particulars of the described automobile to be insured to the prejudice of the insurer,
(ii) knowingly misrepresents or fails to disclose in the application any fact required to be stated therein;
(b) the insured contravenes a term of the contract or commits a fraud; or
(c) the insured willfully makes a false statement in respect of a claim under the contract,
a claim by the insured is invalid and the right of the insured to recover indemnity is forfeited.
[ 4 ] The defendant says that the plaintiff knowingly mis-stated the amount he paid for the car when he purchased it and understated the number of kilometres it had travelled. The defendant submitted that, in so doing, the plaintiff has both committed a fraud and wilfully made a false statement, contrary to subsections 233(1) (b) and (c) of the Insurance Act . On this basis, it was said that the plaintiff has forfeited his right to recover under the policy and that, given the record, no genuine issue requiring a trial remains. These things being so, the defendant says it is entitled to summary judgment.
[ 5 ] To my mind, this motion is a mis-use of the summary judgment procedure.
[ 6 ] This action is proceeding, pursuant to Rule 76 of the Rules of Civil Procedure. As such, it is proceeding as a “simplified procedure action”. “The policy behind the rule is to attempt to reduce the cost of litigating claims of modest amounts by reducing the amount of procedure available in such cases.”[^1] Cases being conducted under this rule are to receive particular consideration when they are the subject of motions for summary judgment. There is… “[n]o doubt, [that] in appropriate cases, a motion for summary judgment in a Rule 76 action can be a useful tool to promote the efficient disposition of cases. However, it 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”.[^2] When such a motion is brought, the judge will “…need to assess whether entertaining the motion is consistent with the efficiency rationale reflected in the simplified procedures under Rule 76”.[^3]
[ 7 ] In this case, the only evidence before the court is from the moving party (the defendant). The motion was argued from the record it produced.
[ 8 ] The defendant submitted that the record made clear that while, on the Proof of Loss, the plaintiff indicated that he had paid $17,500 for the car, this was not true. The Bill of Sale was included in the record. On its face, it reported that the plaintiff purchased the vehicle for $9,918.00. At different times, he has given other amounts as representing the cost of the car. In a statement to the police, he said bought the car for $16,000. He told a Claims Representative of the defendant that he had paid $17,000 and had “done about $3,000 work on the vehicle”. In a second statement, to another representative of the defendant, this time a Claims Investigator, the plaintiff repeated that he purchased the car for $17,000. On this occasion, he said that he had paid $3,900 for work done on the car.
[ 9 ] The plaintiff did not provide any additional material to the court. He acted on his own behalf. He acknowledged the value shown on the Bill of Sale, but went on to say that work was done at or around the time of the purchase and, taking into account everything he spent, the car cost him about $17,000.
[ 10 ] The defendant also pointed out that, on the Proof of Loss, the plaintiff stated that the odometer reading indicated that the car had travelled 160,000 kilometres. The affidavit deposed by the Claims Representative contained a “VIN history” of the vehicle. It indicated that, on November 7, 2008, the car had an odometer reading of 160,000 kilometres. This would suggest that the car did not travel any additional distance between that date and the date of the Proof of Loss (January 2, 2009). The “VIN history” showed that, on the day the plaintiff became the owner of the vehicle (December 23, 2006), the reading was 229,500 kilometres, almost 70,000 kilometres higher than it was two and, again, three years later. Prior to the purchase of the vehicle by the plaintiff, the odometer reading had been 228,000 kilometres (December 1, 2006) and, a few weeks earlier, 224,929 kilometers (October 23, 2006).
[ 11 ] The affidavit also referred to an interview of the plaintiff conducted by the police. The plaintiff advised the officer that, at the time the ownership of the car was transferred to him, the “cluster” read “150+”, but his paperwork showed “225+” and the ministry entered it as it was on the paperwork. He told the Claims Investigator that, when he purchased the vehicle, it had approximately 124,000 kilometers and 160,000 kilometers “on December 13”.
[ 12 ] There is other evidence contained within the affidavits sworn by the two employees of the defendant. It reflects the investigation they carried out. When the Claims Representative questioned the plaintiff about the discrepancy on the odometer reading, the plaintiff advised he had received a letter from the manufacturer of the vehicle, BMW, stating that the kilometres registered were not the actual kilometres on the vehicle. The plaintiff has never produced this letter. The Claims Representative followed up by contacting the head office of BMW. She deposed that she spoke to “Eric in customer service”. The Claims Representative asked “Eric” to locate any letter sent by or to BMW with respect to any discrepancy in the odometer reading. Evidently, “Eric” advised that any such letter would be accessible to him to review. No such letters were found. In the affidavit, the Claims Representative indicates that she “believe[s] what I was told by Eric”.
[ 13 ] The Claims Representative and the Claims Investigator went to a BMW dealer. They asked the service department to scan one of the keys to the car that had been provided by the plaintiff. They were advised by “Mike” that the last time that key had been inserted into the ignition of the car the odometer reading was 276,802 kilometres. In her affidavit, the Claims Representative swears that she “believe[s] what I was told by Mike”.
[ 14 ] The Claims Representative and the Claims Investigator were also told, but do not depose by whom, but “believe to be true” that the last time any warranty work was done on the vehicle was March 30, 2004 and that, at that time, the odometer reading was 177,606 kilometres.
[ 15 ] The Claims Investigator indicated, in the affidavit he deposed, that he attended at “Pennzoil, 11352 Yonge Street with respect to an invoice produced by the Plaintiff”, dated September 23, 2008. It indicated that the odometer reading, on the car on that day, was 150,000 kilometres. At “Pennzoil”, he was advised that sometimes their employees read the odometer or the reading could have been provided by the customer. If it was read by a Pennzoil employee, the exact reading would be recorded. “The fact that 150,000 kilometers was inputted suggested to them that the mileage was provided by the customer.” In his affidavit, the Claims Investigator swears that he “believe[s] what I was told at Pennzoil.”
[ 16 ] There are other witnesses who provided information to the Claims Investigator whose evidence he “believes”.
[ 17 ] The question is whether this matter would have been better left to be dealt with by a summary trial; that is to say, whether proceeding with a motion for summary judgment is consistent with the “efficiency rationale” of Rule 76 of the Rules of Civil Procedure.
[ 18 ] The Court of Appeal has made “two general observations that will inform this assessment”.[^4] It has suggested that:
First, summary judgment motions in simplified procedure actions should be discouraged where there is competing evidence from multiple witnesses, the evaluation of which would benefit from cross-examination, or where oral evidence is clearly needed to decide certain issues. Given that Rule 76 limits discoveries and prohibits cross-examination on affidavits and examinations of witnesses on motions, the test for granting summary judgment will generally not be met where there is significant conflicting evidence on issues confronting the motion judge. While the motion judge could order the hearing of limited oral evidence on the summary judgment motion under rule 20.04(2.2), in most cases where oral evidence is needed, the efficiency rationale reflected in the rule will indicate that the better course is to simply proceed to a speedy trial, whether an ordinary trial or a summary one: see rules 76.10(6) and 76.12.
Second, we are not saying that a motion for summary judgment should never be brought in a simplified procedure action. There will be cases where such a motion is appropriate and where the claim can be resolved by using the powers set out in rule 20.04 in a way that also serves the efficiency rationale in Rule 76. For example, in a document-driven case, or in a case where there is limited contested evidence, both the full appreciation test and the efficiency rationale may be served by granting summary judgment in a simplified procedure action.[^5]
[ 19 ] In my view, this matter would be better left to proceed by way of a summary trial. The plaintiff has acted to have this matter dealt with under Rule 76 of the Rules of Civil Procedure; which is to say, he has acted to have this action handled with expedition. Ultimately, this is not a document-driven case, but one that depends on credibility, particularly that of the plaintiff. Can he explain the apparent inconsistencies in the price he paid for the car and the different odometer readings? It may be that affidavits providing the court with sworn evidence explaining the position of the plaintiff could have been produced. Perhaps he would have been cross-examined and a more complete record produced. This could not be said to recognize the “efficiency rationale” to which the plaintiff had committed by bringing the action under the rubric of Rule 76 of the Rules of Civil Procedure. This is underscored by the fact the court is being asked to accept the hearsay evidence of “Eric”, “Mike”, “Pennzoil” and others without any way of coming to an understanding of the reliability of this evidence other than the statements of the Claims Representative and the Claims Investigator that they “believe” it. Again, the plaintiff could have asked to cross-examine the Claims Representative and the Claims Investigator or sought to examine “Mike”, “Eric”, a representative of “Pennzoil” or others to determine if the information they “believed” should be accepted by the court. I would be hard-pressed to understand how proceeding in that way would respond to the “efficiency rationale” of a summary trial.
[ 20 ] In his submissions, counsel for the defendant submitted that proceeding by way of summary judgment would create efficiencies such that a two-day trial would be reduced to a two-hour motion. It is not at all clear that this is so. The intent of a summary trial is that evidence-in-chief will be provided by affidavit, supplemented by an oral examination of not more than ten minutes. A party is to complete all its cross-examinations within fifty minutes (see: Rule 76.12(1) of the Rules of Civil Procedure ) . Given this guidance, it is difficult to understand why a summary trial of this matter would last two days. This is particularly so if the defendant planned to refer to the hearsay evidence of “Eric”, “Mike”, “Pennzoil” and others, but rely on the Claims Representative and the Claims Investigator to demonstrate its reliability, rather than provide affidavits from these people and call them as witnesses at the trial.
[ 21 ] The problem is that the defendant is relying on the obligation of the plaintiff, as the responding party, to put “his best foot forward” when confronting a motion for summary judgment. This would have required the plaintiff to file affidavits and cross-examine the Claims Representative, the Claims Investigator and perhaps other parties. The plaintiff, either by design or through ignorance of the process, is relying on the procedure of a summary trial to get this proceeding to a speedy and economical resolution. He should not be faulted because he did not fall prey to the bait the defendant set, perhaps unintentionally, by bringing this motion.
[ 22 ] This case should have been left to proceed to a summary trial. It would recognize the “efficiency rationale” to which the Court of Appeal referred and allow the judge to hear the evidence to better assess the credibility of the plaintiff and the reliability of the information apparently provided by “Eric”, “Mike”, “Pennzoil” and whoever else the defendant relies on.
[ 23 ] The motion is dismissed.
[ 24 ] No submissions were made as to costs. The plaintiff is the successful party. However, as I have said, he was not represented by counsel. While Rule 57.01(4)(e) of the Rules of Civil Procedure recognizes the jurisdiction to award costs to a party acting in person, this is unusual and, from what I understand, to this point, the indicators that would lead to such an award are not present . Nonetheless, I have not heard from the plaintiff and I could be wrong. Accordingly, if the plaintiff wishes to seek costs, I will consider submissions in writing, on the following terms:
Submissions on behalf of the plaintiff are to be no later than fifteen days after the release of these reasons. Such submissions are to be no longer than four pages, double-spaced, not including any Costs Outline, Bill of Costs or case law that may be provided.
Submissions on behalf of defendant are to be no later than ten days thereafter. Such submissions are to be no longer than four pages, double-spaced, not including any Costs Outline, Bill of Costs or case law that may be provided.
Submissions, in reply, on behalf of plaintiff are to be no later than five days thereafter.
[ 25 ] If no submissions are received from the plaintiff within the time I have prescribed in paragraph 1 above (15 days), there will be no costs awarded in favour of the plaintiff. If, thereafter, no submissions are received from the defendant seeking costs on its behalf, within the time I have prescribed in paragraph 2 above (ten days), there will be no costs awarded in favour of the defendant. Otherwise, I will expect submissions within the time-frames I have set.
LEDERER J.
Date: 20120203
[^1]: Watson and McGowan, Ontario Civil Practice 2012 , Rule 76 – Simplified Procedure, at p. 1479
[^2]: Combined Air Mechanical Services Inc. v. Flesch , 2011 ONCA 764 at para. 254
[^3]: Ibid , at para. 255
[^4]: Ibid , at para. 255
[^5]: Ibid , at paras. 256 and 257