ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 07-30867
DATE: 2012-02-07
B E T W E E N:
SCOTT SMITH
Plaintiff
- and -
THE ESTATE OF SHERRI BARNA, CARRIE LESLIE and JOHN NAVES
Todd Wasserman for the Minister of Finance in the name of and on behalf of the Defendant, John Naves
Defendants
- and -
AVIVA CANADA INC.
Kieran C. Dickson for Aviva Canada Inc.
Third Party
HEARD: at Hamilton on February 3, 2012
REASONS FOR DECISION
CAVARZAN J.
[ 1 ] Aviva Canada Inc. (Aviva) has moved for summary judgment dismissing the plaintiff’s action for damages against the defendant Carrie Leslie, its insured under a policy of automobile insurance. The sole issue is whether the defendant John Naves was in possession of Leslie’s motor vehicle without her consent.
[ 2 ] Aviva’s position is as follows. The automobile was, at the time of the accident, in the possession of one or more persons who did not have Leslie’s consent and, accordingly, Leslie cannot be held liable for any damages arising from the use of her automobile. There is no genuine issue regarding a trial with respect to this matter of consent, so the action against Leslie is properly dismissed on motion.
[ 3 ] The Highway Traffic Act , R.S.O. 1990, c.H.8 provides, in subsection 192(2) that:
(2) The owner 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, unless the motor vehicle or street car was without the owner’s consent in the possession of some person other than the owner or the owner’s chauffeur.
[ 4 ] Aviva submitted that the only evidence tendered on the motion for summary judgment is that of Leslie in the supporting affidavit, and the transcript of her examination for discovery in the action. It appears that she was cross-examined on her affidavit, but the corresponding transcript was not tendered in the motion materials nor referred to by opposing counsel. Mr. Dickson submitted that the evidence relied upon by Aviva is uncontradicted.
[ 5 ] The position of the Minister of Finance appearing in the name of and on behalf of the defendant Naves pursuant to s. 8 of the Motor Vehicle Accident Claims Act , R.S.O. 1990 c. M.H is that Leslie’s evidence is internally inconsistent and contradictory. On its face it does not lead to the conclusion that she did not consent to Naves’ possession or that there was no implied consent or over-holding. The drawing of an inference of no consent in the circumstances is not justified. A genuine issue is raised which requires a trial.
BACKGROUND
[ 6 ] Leslie and Naves were in a boyfriend/girlfriend relationship for about six months between February, 2006 and August 28, 2006, the date of the motor vehicle accident. The couple did not reside together; Leslie lived with her parents.
[ 7 ] On August 26, 2006 Leslie and Naves argued. This argument took place in Leslie’s home and culminated in Naves’ departure. On his way out he picked up Leslie’s car keys, went out to the street where her automobile was parked and drove away in it.
[ 8 ] In her affidavit, Leslie deposes that she did not, in fact, give Naves permission to possess, operator or use her car. She maintained exclusive possession of the keys with every set being kept either in her purse or in her house. Naves took the car keys from her purse as he left the house.
[ 9 ] Although upset and angry at Naves for taking her car, she deposed that she was still in love with him and anticipated a reconciliation. She hoped and expected that he would come back and apologize.
[ 10 ] Urged repeatedly by her mother to call the police, Leslie refused to do so. Finally, two days after Naves left with her car, Leslie reported to the police that her car had been taken by Naves without her permission. This call occurred on the late afternoon or evening shortly after her vehicle had been involved in an incident in which the plaintiff was injured.
[ 11 ] In the late afternoon hours of August 28, 2006, Ms. Sherri Barna lost control of Leslie’s 1992 Mercury Topaz when Naves, the front seat passenger, grabbed the steering wheel. The vehicle left the roadway, travelled onto the sidewalk, where it struck Scott Smith and Ryan Britton.
[ 12 ] Smith (the plaintiff in this action) alleges that he sustained serious and permanent injuries. Smith is receiving or has received accident benefits from Aviva.
[ 13 ] Smith commenced this action against Barna and Naves as the drivers of the vehicle and Leslie as the owner. All three defendants have failed to defend this action. Aviva had itself added as a third party as Leslie’s automobile insurer on the basis that it denies liability under the policy.
[ 14 ] It is believed that Barna died in an unrelated motor vehicle accident.
[ 15 ] Naves was charged with two counts of “Dangerous Operation of a Vehicle” and one count of “Breach of Probation”. He pleaded guilty to these charges and was sentenced on June 13, 2007. Leslie deposed that on June 12, 2007, while Naves was in custody, he contacted her by telephone and told her, while making threats against members of her family and their property, to write a letter stating that he did not steal her car. She did so. That letter is an exhibit to her affidavit.
[ 16 ] Upon her examination for discovery, on March 11, 2009, Leslie was asked about that letter. She stated that it was written under duress and that it was not true. Her statements in that letter are, however, consistent with a statement given to the police on October 19, 2006 and in a will say statement of January 2, 2007 by an investigating officer who had recorded Leslie’s statement to him on August 28, 2006, the date of the incident.
[ 17 ] In the October 19, 2006 statement she says “I figured he would cool off and come back. I didn’t hear from him for 2 days.”
[ 18 ] In P.C. Brad Clark’s will say of January 2, 2007, he quotes Leslie as saying that the vehicle was taken without her permission but that she did not want to support charges.
[ 19 ] During the examination for discovery, Leslie testified further that “my mom has forced me to call now” i.e. at about 7 p.m. on August 28, 2006. She testified as well that she was aware that Naves would borrow and over-hold vehicles from his friends and relations.
[ 20 ] In the letter of June 12, 2007, Leslie states that “John didn’t drive my car unless I couldn’t”. When examined for discovery she acknowledged that she had contacted Naves shortly after the August 28, 2006 incident, met him on the street and asked him to drive her automobile because she was not feeling well. She denied that he had ever driven her car before August 26, 2006; however, she was aware that he had driven his ex-girlfriend’s car and would usually take off for a day or two.
[ 21 ] The Ministry has been unable to locate Naves, but expects that he will be located and will provide testimony at trial.
THE LAW OF SUMMARY JUDGMENT
[ 22 ] Citing the recent decision in Ryabikhina v. St. Michael’s Hospital , [2011] O.J. No. 1772 , the responding party acknowledges, as stated in paragraphs 37 and 38 that:
To resist a motion for summary judgment, a responding party must adduce coherent evidence based on an organized set of facts to show that there is a real issue to be tried on admissible evidence. The responding party must “lead trump or risk losing” and establish that his or her claim is one with a real chance of success.
When determining a motion for summary judgment, the court is to assume that the record before it contains all of the evidence which the parties would present if the case were to proceed to trial.
[ 23 ] The respondent, the Minister of Finance, does not rely solely on assertions made in the statement of defence it has delivered on behalf of Naves. A supporting affidavit by Kees Van Brink, a claims administrator in the Ministry, was filed. That affidavit includes references to documents (Leslie’s letter of June 12, 2007, the transcript of the examination for discovery of Leslie, and recorded statements made by Leslie to the police on August 28, 2006 and October 19, 2006) which bear upon the issue of whether or not she consented to Naves having possession of her automobile.
[ 24 ] Of particular significance in the circumstances of this case is paragraph 9 of the Van Brink affidavit:
- The Minister of Finance has defended this action in the name of and on behalf of Mr. John Naves pursuant to s. 8 of the Motor Vehicle Accident Claims Act, R.S.O. 1990 c. M. 41 . upon being notified of Mr. Naves’ failure to defend the action. The Minister was first notified on or about March 31, 2009…that this may be a case in which it could have status to represent the unrepresented defendant; however, the requisite documents which grant the Minister the ability to defend the action were not served until June 24, 2009.
[ 25 ] As noted above, Leslie’s examination for discovery occurred on March 11, 2009, before any notification to the Ministry. The defendant Barna has since died, and the Ministry has not been able to locate the defendant Naves.
[ 26 ] In these circumstances, a motion for summary judgment dismissing the action as against the defendant Carrie Leslie amounts to a pre-emptive strike against a defendant with one arm tied behind its back. This would be manifestly unjust given that there is material before the court from which it would appear that the issue of whether or not Naves possessed the motor vehicle with Leslie’s consent is open to debate. That debate should occur in the context of a trial.
[ 27 ] In oral submissions for Aviva, Mr. Dickson cited the Ontario Court of Appeal reasons in Combined Air Mechanical Services Inc. v. Flesch , 2011 ONCA 764 as the definitive interpretation of the revised rule 20 which came into effect on January 1, 2010. Referring in particular to paragraphs 51 and 52 of those reasons, he submitted that the case at bar meets the criteria in the type of case described in paragraph 52:
[51] We think this “full appreciation test” provides a useful benchmark for deciding whether or not a trial is required in the interest of justice. In cases that call for multiple findings of fact on the basis of conflicting evidence emanating from a number of witnesses and found in a voluminous record, a summary judgment motion cannot serve as an adequate substitute for the trial process. Generally speaking, in those cases, the motion judge simply cannot achieve the full appreciation of the evidence and issues that is required to make dispositive findings. Accordingly, the full appreciation test is not met and the “interest of justice” requires a trial.
[52] In contrast, in document-driven cases with limited testimonial evidence, a motion judge would be able to achieve the full appreciation of the evidence and issues that is required to make dispositive findings. Similarly, the full appreciation test may be met in cases with limited contentious factual issues. The full appreciation test may also be met in cases where the record can be supplemented to the requisite degree at the motion judge’s direction by hearing oral evidence on discrete issues.
[ 28 ] None of the parties to the action was present in court during the hearing of the motion and counsel did not suggest that hearing oral evidence would be of assistance. Indeed, the Ministry is continuing in its efforts to locate Naves. Having been examined for discovery and cross-examined on her affidavit, it would serve no purpose to hear from Leslie on the motion.
[ 29 ] Mr. Dickson submits that in this case a trial is unnecessary. I disagree. In the Combined Air case, supra, the Court of Appeal discussed the purpose of the new rule 20 at paragraphs 38 and 39:
[38] However, we emphasize that the purpose of the new rule is to eliminate unnecessary trials, not to eliminate all trials. The guiding consideration is whether the summary judgment process, in the circumstances of a given case, will provide an appropriate means for effecting a fair and just resolution of the dispute before the court.
[Emphasis in the original]
[39] Although both the summary judgment motion and a full trial are processes by which actions may be adjudicated in the “interest of justice”, the procedural fairness of each of these two processes depends on the nature of the issues posed and the evidence led by the parties. In some cases, it is safe to determine the matter on a motion for summary judgment because the motion record is sufficient to ensure that a just result can be achieved without the need for a full trial. In other cases, the record will not be adequate for this purpose, nor can it be made so regardless of the specific tools that are now available to the motion judge. In such cases, a just result can only be achieved through the trial process. This pivotal determination must be made on a case-by-case basis.
[ 30 ] I have concluded that it is not safe to determine the matter on a motion for summary judgment for two reasons. I find that the matter of consent in this case is a live issue. Second, the process by which Minister of Finance was brought into this litigation and the circumstances of this case place the Minister at a distinct disadvantage. It would be unfair and not in the interest of justice to determine the matter on this motion for summary judgment.
CONCLUSION
[ 31 ] This motion is dismissed. If necessary, the parties may exchange brief written submissions on the matter of costs of the motion and file same with the trial coordinator within 14 days.
Cavarzan J.
Released: February 7, 2012
COURT FILE NO.: 07-30867
DATE: 2012-02-07
ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: SCOTT SMITH Plaintiff - and - THE ESTATE OF SHERRI BARNA, CARRIE LESLIE and JOHN NAVES Defendants AVIVA CANADA INC. Third Party REASONS FOR DECISION Cavarzan J. JC:mg
Released: February 7, 2012