ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
MARGARET PINTO
Plaintiff
- and -
SATBIR KAUR and JASWANT PANNU and AXA INSURANCE CANADA
Defendants
Michael Chadwick,
for the Defendant, Jaswant Pannu
Leonard Collier, for the Defendant, Axa Insurance Canada
HEARD: September 10, 2014
F.L. MYERS J.
REASONS FOR JUDGMENT
Background
[1] On April 21, 2009, the defendant, Satbir Kaur, had a car accident. She rear-ended the plaintiff’s car. Ms Kaur was driving a car owned by the defendant, Jaswant Pannu. Ms Kaur produced Mr. Pannu’s ownership and insurance to the policeman at the scene of the accident. She was charged with careless driving.
[2] On April 20, 2011, the plaintiff sued the defendants for damages arising from the accident. Ms Pinto sued Ms Kaur for negligently driving Mr. Pannu’s car. She sued Mr. Pannu under s.192(2) of the Highway Traffic Act, R.S.O. 990, c.H.8. Under that statute, the owner of a car is liable for damages caused by the diver unless the car was in the driver’s possession without the owner’s consent.
[3] On May 9, 2011, Ms Kaur signed a statutory declaration in which she swore that she drove into the rear of the plaintiff’s car solely due to the negligence and lack of care of the plaintiff “with no negligence on the part of myself, Satbir Kaur, contributing thereto”. She swore that she suffered serious and grievous physical injuries of a permanent nature that have caused her to suffer “continuous pain since the day of the accident”. Finally, she swore the following:
12 The said motor vehicle I was driving was owned by Mr. Jaswant Pannu.
13 I, Satbir Kaur, took the said motor vehicle without the consent of Mr. Jaswant Pannu. At no time did Mr. Jaswant Pannu give his consent for me to operate the said motor vehicle.
14 On no occasion has Mr. Jaswant Pannu given his consent to operate any motor vehicle that he owns.
15 I took Mr. Jaswant Pannu’s car, without his direct, implied or past consent, to provide medicine for my daughter who was sick, had earlier vomited, and had a high fever at that time.
16 I knocked at the door of Mr. Pannu’s house but nobody was home. I found the car in the driveway, since the key I found but never returned to Mr. Pannu during the time of my employment, I tried the key into the said vehicle and ignition worked and took the car. [sic]
17 I understand that Mr. Pannu was out of the country during the time I took his motor vehicle.
18 Mr. Jaswant Pannu understands that my daughter was sick and decided not to pursue a criminal case against me.
[4] In his statement of defence, Mr. Pannu denied liability under the Highway Traffic Act because Ms Kaur took his car without his consent. Therefore, the plaintiff amended her statement of claim to add her own insurer, Axa Insurance Canada, as a defendant in order to access her uninsured driver coverage in the event that her relief is limited to the uninsured Ms Kaur.
The Motion Before the Court by Mr. Pannu
[5] In this motion, Mr. Pannu seeks summary judgment dismissing the claim against him. He has delivered evidence that he was out of the country on the day of the accident. He denies giving his consent to Ms Kaur to take his car. Ms Kaur had worked for Mr. Pannu’s travel agency business approximately one year earlier. She went on maternity leave and never returned as the business closed subsequently. Mr. Pannu never saw Ms Kaur after she went on leave. Mr. Pannu says that he is not related to Ms Kaur or her husband and that his wife is not related to Ms Kaur. He says that when he returned home from abroad, his family told him about the accident. Ms Kaur called the next day and came to see him. She told him that she took his car because her daughter was ill. She apologized and began to cry when he threatened to call the police, so Mr. Pannu decided not to report Ms Kaur to the police. Coupled with Ms Kaur’s express admissions in her statutory declaration, Mr. Pannu says that there is no issue requiring a trial on the issue of consent. He asks that the action be dismissed as against him.
The Position of Axa Insurance Canada
[6] Ms Kaur is representing herself in this litigation. Axa was required to obtain an order to compel her to attend for examination for discovery. She came with two very young children which made the examination unmanageable. The examination is not finished. Ms Kaur has now apparently moved and Axa does not have her current address. Discoveries of Mr. Pannu are also incomplete. Among other things, Axa is waiting for Mr. Pannu to produce his insurer’s documents concerning the contemporaneous reporting of the claim to the insurer by Mr. Pannu or his family.
[7] Mr. Pannu’s prior lawyer told Axa’s adjuster that Ms Kaur’s husband is a relative of Mr. Pannu. The lawyer said that Ms Kaur used to live with the Pannus and had a set of keys to their house. Mr. Pannu’s counsel objects to this testimony being admitted because it violates the hearsay rule. Neither side provided me any law on the topic. For the purposes of this motion, it seems to me that lawyers retained in a lawsuit are agents expressly authorized to speak for their clients and hence anything said by the lawyer would be a form of admission by Mr. Pannu analogous to Rule 51 of the Rules of Civil Procedure. Therefore, I admit the evidence for the truth of its content at least for this motion.
[8] Axa’s adjuster also spoke to Ms Kaur a number of times over two days. In their first call, Ms Kaur said she could not afford a lawyer and hung up on the adjuster. The second time they spoke, minutes later, Ms Kaur said that she took the car without Mr. Pannu’s consent while he was out of the country and then she hung up on the adjuster again. During a third call that day, Ms Kaur said that Mr. Pannu was a family friend; that she had keys to his house; and she was going to visit her aunt. She also said that she was living with the Pannus on the day of the accident and that her daughter was ill that day. She took the car without permission as it was an emergency. Ms Kaur refused to speak to the adjuster when she called again the next day. Mr. Pannu’s counsel objected to this evidence as hearsay. Neither side provided me any law on the topic. It seems to me that anything said by a party is either not hearsay or an exception to the hearsay rule. Therefore, I admit the evidence for the truth of its content at least for this motion.
[9] The adjuster spoke again to Mr. Pannu’s former lawyer who told her that Mr. Pannu said that Ms Kaur is his cousin. Mr. Pannu denies any relation to Ms Kaur in his affidavit on this motion.
[10] On his examination for discovery, Mr. Pannu said that Ms Kaur had his car keys but not his house keys. The car was bought for the business. Only Mr. and Mrs. Pannu and Ms Kaur worked at the office. The keys to the car were with the office keys. Ms Kaur had a set of keys to the office. Mr. Pannu testified that when Ms Kaur left on maternity leave, she returned the office keys. He did not ask her to return the car keys because he never gave them to her. But he does not recall receiving the car keys back from her. Questions 97 to 130 present a somewhat confusing picture as to how the keys to the car and office were handled and kept. They do not really explain how or whether Ms Kaur got or kept the car keys.
[11] Ms Kaur’s evidence on her incomplete discovery is that her daughter was very ill, so she walked 10 km from her home to the Pannus’ house. Her doctor’s office was the opposite direction from her home. Finding no one at home at the Pannus’ house, she took Mr. Pannu’s car and got in the accident that is the subject matter of this action. The police report shows that Ms Kaur was alone in the car when the accident occurred. The location of the accident was neither on the route from the Pannus’ house to Ms Kaur’s home or to the doctor’s office.
[12] There is no evidence as to how the car was returned to the Pannus’ home by Ms Kaur or how it was repaired. There is no indication if Mrs. Pannu came home and, finding their car missing, called the police. Undertakings given by Mr. Pannu on discovery remain outstanding as to the evidence of Mrs. Pannu and their son.
The Test for Consent under s.192(2)
[13] The applicable test for consent under the statute is not in dispute. There was no express consent given by Mr. Pannu to Ms Kaur. The issue is whether Mr. Pannu’s consent may be implied. Both parties accept that under the statute, to find that an owner has impliedly given consent to a driver to take possession of a car, the law looks at the mental state of the driver. The test is whether all of the circumstances would lead the driver to be justified in believing that she had consent to possess the car. The court will look at all of the relevant circumstances including the relationship between the parties and their course of conduct. (Seegmiller v. Langer, 2008 53138 (ON SC), 2008 OJ No. 4060 (SCJ); Palsky v. Humphrey, 1964 96 (SCC), [1964] S.C.R. 580; Fyfe v. Bassett, 2012 ONSC 5125; Edmond v. Reed, 1993 OJ No. 1349 (SCJ))
[14] Mr. Pannu submits that there is nothing in the prior relationship between him and Ms Kaur that would lead Ms Kaur to believe that she had permission to take his car. She had never used it previously. Moreover, Ms Kaur admits that she knew she had no permission in her statutory declaration. Mr. Pannu’s counsel submits that there is no basis to support a finding that Ms Kaur had or could reasonably have had a subjective belief that she had permission to take the car.
[15] Counsel for Axa submits the opposite. Axa submits that the there is a credibility issue as to whether the parties may be related. In his affidavit, Mr. Pannu denies any relation to Ms Kaur or her husband. He then says that his wife is not related to Ms Kaur but he omits any reference to her husband. The adjuster was told different things by Ms Kaur and Mr. Pannu’s lawyer. Moreover, definitions of relations may vary.
[16] The fact that Ms Kaur had keys and took the car could support an inference that she thought that she would be allowed to do so if she explained to the Pannus that her daughter was ill. In fact, this might be borne out by Mr. Pannu subsequently declining to press charges and seemingly forgiving Ms Kaur. There is still a gap in the information as to why Ms Kaur returned the car if she believed that she had stolen it and then damaged it. Why did she not just abandon it? How would the Pannus have known that she took it? What happened when she returned the car? How did it get repaired? Who paid? Who spoke about it? On discovering that the car was missing and if she did not know that Ms Kaur had it, did Mrs. Pannu call the police and if not, why not? Did they report the theft to their insurer? What did they tell the insurer when they actually did report the accident?
[17] Moreover, Axa submits that the circumstances of the signing of Ms Kaur’s statutory declaration are unknown. It was plainly drafted by someone who was trying to sound like he or she had some legal education. The meaningless repetition of the word “said” is a dead giveaway for legal expertise. Ms Kaur’s bald denial of all negligence in the rear-end collision may open her to questions about what she was told about negligence and how she could swear to that truthfully. The key paragraph, number 16 cited above, is so lacking in grammatical sense so as to be imprecise at minimum, and perhaps deliberately vague, or, at worst, misleading. Whether the statutory declaration is admissible absent cross-examination of Ms Kaur may also be an issue. How did it come about? Did consideration flow on its swearing?
Credibility
[18] How is the court to assess whether there is an issue requiring a trial concerning consent? There is direct evidence that there was no consent given by Mr. Pannu to Ms Kaur. But there is some evidence that contradicts the current state of the evidence (such as Ms Kaur’s statements to the adjuster and Mr. Pannu’s former lawyer’s statements). In other respects, the current evidentiary story raises credibility issues because it has elements that may seem to be inherently improbable. In his text, The Trial of an Action, (1981, Toronto Ont; Butterworths) at p. 77, John Sopinka wrote of the role of the assessment of credibility through probabilities at follows:
Probability is the great touch-stone of all evidence. A witness whose testimony strays from the truth will often have built into it some inherent improbability.
[19] A similar statement was made by the British Columbia Court of Appeal in Faryna v. Chorny, 1951 252 (BC CA), 1951 CarswellBC 133, [1952] 2 D.L.R. 354, at para. 10 as follows:
… the real test of the truth of the story of a witness… must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions.
[20] Another way to look at these pronouncements is simply to ask the question, “Does the evidentiary story make sense?” Does this story conform to the way we expect people to behave in the circumstances? Does it make sense that with her ill child at home in an emergency, instead of calling an ambulance, taking the child in a taxi, or taking her on a bus to the doctor’s office, Ms Kaur left her children, walked 10 km the opposite way to see her former employer whom she had not spoken to in over one year and when he was not home, she decided to steal his car with keys she had (although it is unclear how) and then she did not drive directly home to pick up her ill child to go to the doctor’s office, but got into an accident well past the cut-off to her home?
[21] Without attempting at this stage to resolve the issue, the seeming inherent improbability of unexplained elements of this evidence at least raise an issue as to credibility.
Hryniak
[22] In Hryniak v. Mauldin, 2014 SCC 7, the Supreme Court of Canada determined that the full trial of civil actions can no longer be viewed as the preferred or default procedure. Civil trials are so costly that they are beyond the reach of most Canadians. Moreover, it too often takes so long to prepare for and hold civil trials that the process denies the parties the speedy access to justice to which they are entitled. As a result, the Supreme Court of Canada has required that civil courts undergo a culture shift to find ways to resolve cases as quickly, affordably, and efficiently as possible while meeting the fundamental requirements that civil cases fairly provide a just result.
[23] The Rules of Civil Procedure provide a process for parties to seek summary judgment – that is – judgment without a trial. This process used to be confined to the relatively few cases where there were no material issues of fact in dispute between the parties. Under the traditional civil procedure model, factual issues could be determined only at a trial before a judge who would see and hear witnesses’ live testimony. More recently, Rule 20 was expanded to give the judge hearing a motion for summary judgment the power to decide disputed facts by drawing inferences and making credibility findings in appropriate cases. In Hryniak, the Supreme Court of Canada determined that these powers were intended to make a major change in how cases are decided. In order to enhance access to justice, efforts are to be made to determine civil cases with as little process as circumstances allow. The Supreme Court considered the provisions of the summary judgment rule and provided civil courts hearing summary judgment motions with a roadmap through the process steps starting with the clearest cases through to those few which may still legitimately need a full trial for resolution. Moreover, the Supreme Court of Canada directed courts to be more active in managing civil cases to assist the parties to obtain affordable, efficient, and speedy resolution of their cases eschewing unnecessary procedure.
[24] In ThyssenKrupp Elevator (Canada) Limited v. Amos, 2014 ONSC 3910, I summarized the Supreme Court of Canada’s roadmap for resolving summary judgment motions as follows:
[40] Under the roadmap provided starting at para. 66 of Hryniak the Court is to consider first whether the motion provides sufficient evidence required to fairly and justly adjudicate the dispute and is a timely, affordable and proportionate procedure. If not, the Court should consider if it can reach the required result (to fairly and justly adjudicate the dispute in a timely, affordable and proportionate procedure) by exercising the discretion to weigh evidence, evaluate credibility of witnesses and drawing reasonable inferences from the evidence now rather than at trial (Hryniak, at para. 67). If that does not provide the requisite degree of assurance, the Court should consider exercising the discretion to order presentation of some limited oral evidence (Hryniak, at para 68). If even a mini-trial will not provide a fair and just adjudication of the dispute in a timely, affordable and proportionate procedure, then the motion should be dismissed but the judge is required to craft a trial process to do so while remaining seized of the matter (Hryniak, at para 77). The last fallback is to simply dismiss the motion in exceptional cases where it is clearly inappropriate either to grant summary judgment (Hryniak, at para. 68) or to remain seized (Hryniak, at para. 78).
[25] Applying the first step in the roadmap to this case, I do not think that there is sufficient evidence available to fairly and justly adjudicate the dispute based on the record currently before the court. There are inconsistencies that need to be resolved, inherent improbabilities to be explained, and gaps in the evidence that prevent me from finding that a grant of judgment on the current record would be a fair and just outcome.
[26] The next step is to consider if I can exercise the discretion to weigh evidence, evaluate credibility of witnesses, and draw reasonable inferences from the evidence now rather than at trial in a manner that is fair and just. I do not think that trying to do so would be fair to either side. The Court does not have enough information to make a final credibility finding. Raising questions and saying that there are credibility issues is not a finding on credibility. Witnesses may have explanations. Their behaviours may be layered with nuance and texture that is not self-evident from incomplete examinations. Had all parties been fully cross-examined, on all producible documents, then the issue might have been different.
[27] Moreover, a finding on credibility alone will not fill all the gaps that Axa may need to try to prove that there was implied consent. Axa cannot be faulted for failing to put its best foot forward on this motion. Ms Kaur has not been willing to attend for proper examination. Undertakings remain outstanding by Mr. Pannu. Moreover, Mr. Pannu refused to answer on discovery a question as to whether, if asked, he would have given Ms Kaur permission to take his car to take her ill child to the doctor. Counsel took the position that the question was hypothetical and therefore inadmissible. Might it not be relevant to assessing the reasonableness of whether subjectively Ms Kaur thought she could take the car (as opposed to her thinking she was outright stealing it)? Axa is entitled to a proper opportunity to try to obtain its proof from the opposite parties such as it can.
[28] The parties agreed that if the court is not content to make findings on the current record then limited oral evidence, also referred to as a mini-trial, should be ordered under the next step in the Hryniak roadmap
[29] By a mini-trial, I am referring to a summary trial on the issue of consent alone. The plaintiff would not need to be involved. The issues of liability or damages as a result of the car accident would not be part of the mini-trial. Rather, Mr. Pannu, Ms Kaur and perhaps others would be called to give evidence and be cross-examined on the single issue of whether Mr. Pannu’s consent ought to be implied under s.192(2) of the Highway Traffic Act. There may be some need for limited discoveries and production. The idea is to use a limited trial to help resolve the summary judgment motion without the need for a full trial with all of its procedural glory.
[30] In Baywood Homes Partnership v. Haditaghi, 2014 ONCA 450, the Court of Appeal expressed a concern with a mini-trial in the context of a summary judgment motion.
[44] What happened here illustrates one of the problems that can arise with a staged summary judgment process in an action where credibility is important. Evidence by affidavit, prepared by a party’s legal counsel, which may include voluminous exhibits, can obscure the affiant’s authentic voice. This makes the motion judge’s task of assessing credibility and reliability especially difficult in a summary judgment and mini-trial context. Great care must be taken by the motion judge to ensure that decontextualized affidavit and transcript evidence does not become the means by which substantive unfairness enters, in a way that would not likely occur in a full trial where the trial judge sees and hears it all.
[45] Judges are aware that the process of preparing summary judgment motion materials and cross-examinations, with or without a mini-trial, will not necessarily provide savings over an ordinary discovery and trial process, and might not “serve the goals of timeliness, affordability and proportionality” (Hryniak at para. 66). Lawyer time is expensive, whether it is spent in court or in lengthy and nuanced drafting sessions. I note that sometimes, as in this case, it will simply not be possible to salvage something dispositive from an expensive and time-consuming, but eventually abortive, summary judgment process. That is the risk, and is consequently the difficult nettle that motion judges must be prepared to grasp, if the summary judgment process is to operate fairly.
[31] Before ordering a mini-trial, the court needs to be satisfied that doing so will allow the court to fairly and justly adjudicate the dispute in a timely, affordable, and proportionate manner. A mini-trial between the defendants will leave the plaintiff waiting for her trial. Should the plaintiff be stalled or might it be preferable from an overall perspective to just go to trial and leave consent to be dealt with as one of many issues at the trial? That is, might a mini-trial represent an inefficient expansion of procedures with a consequent increase in overall costs? This is especially a concern here where examinations for discovery are not complete so that if some further examinations are to be ordered, then the purpose of the examinations, the role of the plaintiff, and the uses which can be made of the transcripts may become issues.
[32] It seems to me that the basic, practical question to be asked is “Will the addition of a mini-trial, with whatever processes and procedures it will entail, make the resolution of the overall case more efficient, affordable, timely or proportionate?” In lay terms, does a mini-trial make the path to a final outcome of this case quicker and cheaper or slower and more expensive? Will the mini-trial risk obscuring witnesses’ voices or require so many witnesses to be heard to avoid that risk that the mini-trial becomes a poor substitute and expensive addition to the trial itself?
[33] Looked at practically, this motion is a contest between two insurance companies. If the court finds that Ms Kaur possessed the car with Mr. Pannu’s implied consent, then Mr. Pannu’s insurer, State Farm, will respond to the plaintiff’s claim. If the court holds that Ms Kaur drove without Mr. Pannu’s implied consent, then the plaintiff’s uninsured driver coverage through her insurer, Axa Insurance Canada, will respond to the claim. Whichever insurer responds, it will be facing a claim based on a rear-ender. Despite Ms Kaur’s statutory declaration, barring unusual circumstances, it is unlikely that liability will be contested at trial. Trial, therefore, is likely to be limited to the issue of the quantum of the plaintiff’s damages. I have no indication about the extent of the plaintiff’s injuries. Unless there is a threshold issue, catastrophic injuries, provable exaggeration, or chronic pain claimed, a trial on damages is also not very likely. That is, once the issue of consent is resolved, barring unusual facts, there is little left to try and the case should settle. In fact, the sooner that the issue of responsibility between the insurers is settled, the sooner the plaintiff’s claim is likely to be resolved.
[34] In this case, therefore, holding a mini-trial may well eliminate the need for a trial altogether. Even if the plaintiff’s claim proceeds, a trial on damages is completely distinct from a trial on the issue of consent. I see no synergies or savings by having them both together as opposed to hearing the issues sequentially. The witnesses on the mini-trial and the damages trial are distinct. There is no risk of allowing affidavits to mask a witness’s testimony. In fact it is the need for limited oral testimony on a gating issue in this case that makes the mini-trial desirable. In this case, resolution may speed up the case, eliminate the need for a trial and, even if not, will not cause any loss of efficiency in the trial process for whatever remains.
[35] If a party cannot win summary judgment on a written record, then the analysis of whether to hold a mini-trial should be a practical one focusing on whether there is benefit to all parties by resolving issues sequentially and whether efficiencies can be found or may be lost by doing so. If holding a mini-trial does not enhance the prospects for overall resolution in a tangible and not merely hypothetical way, or if the mini-trial will cause a loss of efficiency, increased cost, or delay that cannot be controlled with careful case management, then the case should proceed toward trial with the motion judge seized with case management in all but exceptional cases as required by the final steps in the Hryniak roadmap.
[36] In this case, in my view, there should be a mini-trial on the issue of consent. I will case manage and hear the mini-trial. The parties are to contact my Assistant to set up a Case Conference within two weeks at which the trial process will be formulated and scheduled. All communication with my office shall be by email to my Assistant. Documents shall be filed for the mini-trial only by searchable PDF attachments to emails. No Books of Authorities will be filed. Rather cases, if any, will be referenced by hyperlinks in written submissions. I anticipate a short trial of one or two days being held later this year or early in the New Year depending on trial office scheduling availability. Costs are reserved to the outcome of the mini-trial.
F.L. Myers, J.
DATE: September 15, 2014
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
MARGARET PINTO
Plaintiff
- and -
SATBIR KAUR and JASWANT PANNU and AXA INSURANCE CANADA
Defendants
REASONS FOR JUDGMENT
F.L. MYERS J.
Released: September 15, 2014