ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CV-11-280
DATE: October 1, 2014
B E T W E E N:
RICHARD BELBAS
Mr. C. Watkins , for the Plaintiff
Plaintiff
- and -
GREYHOUND CANADA TRANSPORTATION ULC and RAMONA MORROW
Ms. A. McBride, for the Defendants
Defendants
HEARD: September 16, 2014
at Thunder Bay, Ontario
Regional Senior Justice H.M. Pierce
Reasons on Motion for Summary Judgment
Introduction
[1] On July 8, 2009, the plaintiff was driving his vehicle near Thunder Bay, Ontario, when he was struck by a Greyhound bus. The collision pushed the plaintiff’s vehicle into another vehicle, deploying Mr. Belbas’ air bags and causing his vehicle to ignite. The vehicle and contents were destroyed by fire and the plaintiff suffered injuries. The bus driver, Ramona Morrow, was convicted of careless driving contrary to the Highway Traffic Act, R.S.O. 1990, c. H.8. For the purposes of this motion, I accept that she was at fault for the collision.
[2] The defendants move, pursuant to Rule 20.01(3), for summary judgment and dismissal of the claim on the grounds that the plaintiff is barred from recovering damages because he did not have car insurance at the time of the accident, as required by the Insurance Act, R.S.O. 1990, c. I.8 and the Compulsory Automobile Insurance Act, R.S.O. 1990, c. C.25.
[3] The plaintiff asserts that he suffered memory loss as a result of the head injury he sustained in the collision. As well, he states that his proof of automobile insurance, which was in the glove box, was destroyed in the fire. He argues that it would be unfair for the defendants to escape liability when it was their negligence that caused his head injury that now prevents him from proving he had insurance at the time of the collision.
[4] The plaintiff also argues that, by inference, he must have had insurance at the time of the collision because he was stopped by a police officer on June 21, 2009, and was not charged with failing to have insurance. He submits that whether he was insured at the time of the accident, pursuant to the Compulsory Automobile Insurance Act, is an issue requiring a trial.
The Law
[5] Rule 20.01 of the Rules of Civil Procedure authorizes parties to move for summary judgment. Rule 20.04(a) provides that:
The court shall grant summary judgment if the court is satisfied there is no genuine issue requiring a trial with respect to a claim or a defence…
[6] In determining whether there is a genuine issue requiring a trial, the motions judge may: weigh the evidence; evaluate the credibility of the deponent; and, draw any reasonable inference from the evidence: Rule 20.04(2.1).
[7] Rule 20.02(2) stipulates that a responding party may not rely solely on the allegations in his pleadings, but must set out in affidavit material or by other evidence the facts that demonstrate there is a genuine issue for trial. Rule 20.02(1) permits the court to draw an adverse inference from a party’s failure to provide the evidence of a person having personal knowledge of contested facts.
[8] Central to this motion is section 267.6(1) of the Insurance Act, which states:
Despite any other Act, a person is not entitled in an action in Ontario to recover any loss or damage from bodily injury or death arising directly or indirectly from the use or operation of an automobile if, at the time of the incident, the person was contravening subsection 2(1) of the Compulsory Automobile Insurance Act in respect of that automobile.
[9] Subsection 267.6(2) clarifies that subsection (1) applies whether or not the person was prosecuted for an offence under the Compulsory Automobile Insurance Act.
[10] Section 2(1) of the Compulsory Automobile Insurance Act provides:
Subject to the regulations, no owner or lessee of a motor vehicle shall,
(a) operate the motor vehicle; or
(b) cause or permit the motor vehicle to be operated,
on a highway unless the motor vehicle is insured under a contract of automobile insurance.
The Evidence
[11] As I have said, the plaintiff was injured in a motor vehicle accident on July 8, 2009. At the time, the plaintiff was the owner and operator of a Ford Mustang motor vehicle bearing Ontario plate number BBKW287. Most of the evidence concerning the purchase and insurance of the vehicle was filed by the defendants.
[12] Mr. Belbas purchased the vehicle from Mr. Daniel Butcher in a private sale in Burlington, Ontario, in June 2009. Before turning the vehicle over to the plaintiff, Mr. Butcher removed his licence plates and emptied the vehicle of its contents.
[13] Mr. Belbas brought licence plates with him for the vehicle, bearing number BBKW287, which he affixed. Mr. Butcher signed over the ownership for the vehicle, and retained the plate portion. Both men signed the Ministry of Transportation (“MTO”) used vehicle sale package. There was no discussion about insurance. Mr. Butcher advised that he cancelled his insurance for the vehicle on June 22, 2009. His insurance broker advised that on June 24, 2009, Mr. Butcher transferred his car insurance policy to another vehicle.
[14] The plaintiff was en route to Thunder Bay with the Mustang when he was stopped by police on June 21, 2009. He was issued an offence notice under the Highway Traffic Act for driving without a validation sticker on his licence plate.
[15] Mr. Belbas was not charged with driving without insurance at that time. When the officer who issued the ticket was contacted about Mr. Belbas’ insurance status, he responded,
… I have no record in my notebook regarding his insurance documents. I am assuming he did have valid insurance at the time otherwise I would have issued a Provincial Offences Notice for no insurance.
[16] The officer’s hand-written notes, later supplied, record that the plaintiff “had necessary documents for vehicle.” The officer’s notes do not specify what he considered these to be. One wonders whether Mr. Belbas had in his possession Mr. Butcher’s record of insurance for the vehicle that was not cancelled until after this traffic stop. The plaintiff’s position is that all the vehicle documents were destroyed in the fire at the time of the accident. He also states that he has never owned or leased a vehicle without insurance coverage.
[17] After the July 8th collision, Mr. Belbas was charged by Thunder Bay police with driving without insurance. He did not appear at trial and was convicted of this offence in his absence. Counsel for the plaintiff indicated that, notwithstanding the passage of five years, this conviction is now under appeal.
[18] Examinations for discovery took place in May 2013. At examinations for discovery, the plaintiff could not recall the details surrounding the purchase of his vehicle or the identity of his insurer. He undertook to conduct an MTO search to see if the vehicle was registered to him and whether there was proof of insurance in the MTO file. No proof of insurance in the MTO file has since been produced; nor is there any evidence of proof of payment of an insurance premium, whether by cheque, credit card, or other means.
[19] The defendants commissioned an insurance summary for the plaintiff’s vehicle. The summary shows that the plaintiff had vehicle insurance coverage before and after the accident, in his capacity as an individual, as a member of a family, through work, or when the policy belongs to others. However, it does not list him as being insured at the time of the collision. The plaintiff says the report is unreliable but has filed no other report or proof of insurance to contradict it. It is significant that the plaintiff was unable to access accident benefits following the collision as he was unable to locate any insurance information.
[20] The defendants also commissioned a licence plate search for the plaintiff’s plate number BBKW287 as of June 21, 2009. The results of this search indicate that the plaintiff owned the plate but that it was “unattached,” meaning that it was not assigned to a specific vehicle.
[21] The plaintiff searched the MTO records for the vehicle identification number for the Mustang. This document does not show the plaintiff as the registered owner of the vehicle; rather Mr. Butcher is shown as the owner.
Analysis
[22] In Hryniak v. Mauldin, 2014 SCC 7, 1 S.C.R. 87, the Supreme Court of Canada characterized the summary judgment rule as a tool for enhancing access to justice because “it can provide a cheaper, faster alternative to a full trial:” (para. 34).
[23] The court concluded at para. 49:
There will be no genuine issue requiring a trial when the judge is able to reach a fair and just determination on the merits on a motion for summary judgment. This will be the case when the process (1) allows the judge to make the necessary findings of fact, (2) allows the judge to apply the law to the facts, and (3) is a proportionate, more expeditious and less expensive means to achieve a just result.
[24] If the motions judge concludes there is a genuine issue requiring a trial, then he or she should consider whether a trial can be avoided by resort to the fact-finding powers under Rules 20.04(2.1) and (2.2). This exercise is discretionary. See: Hryniak at paras. 66 – 68.
[25] The onus is on the moving party to demonstrate there is no genuine issue requiring a trial. However, once the moving party has made a prima facie case that a trial is not required, the responding party is obliged to show that there is evidence to support their pleading, to prevent summary judgment from issuing. See: Shahshahani v. Shamsuzzoha, [2004] O.J. No. 2677, 132 A.C.W.S. (3d) 359 (S.C.J.), para. 4. The court also quotes Mr. Justice Borins in Dawson v. Rexcraft Storage and Warehouse Inc., 1998 4831 (ON CA), [1998] O.J. No. 3240, 164 D.L.R. (4th) 257 (Ont. C.A.), at para. 17:
At the summary judgment stage, the court wants to see what evidence the parties have to put before the trial judge, or jury, if a trial is held. Although the onus is on the moving party to establish the absence of a genuine issue for trial, as rule 20.04 (1) requires, there is an evidentiary burden on the responding party who may not rest on the allegations or denials in the party’s pleadings, but must present by way of affidavit, or other evidence, specific facts showing that there is a genuine issue for trial. The motions judge is entitled to assume that the record contains all the evidence which the parties will present if there is a trial.
[26] In my view, the defendants in this case have established a prima facie case that he was not insured. The insurance summary shows that the plaintiff was not insured at the time of the accident. The vehicle he was driving had not been registered in his name and the plate attached to the vehicle had not been assigned to that vehicle. It is apparent that the plaintiff did not register the vehicle and its plates after acquiring it. He did not have a current validation sticker for the vehicle. He would have needed to show proof of insurance in order to complete the transfer and registration of ownership. It is apparent that, hard on the heels of acquiring the vehicle, he did not get around to these formalities.
[27] I have also concluded that the plaintiff has not produced evidence to support his pleading so that summary judgment should not issue. The plaintiff has not filed an affidavit setting out his honest but mistaken belief that he was insured or his efforts to locate his insurer.
[28] In my view, it is not an answer to say that the proof of insurance was burned when the vehicle ignited. As the defendants argue, we live in an age of redundant systems. Each insurer keeps records of its contracts of insurance that could be produced upon request. Proof of insurance is a documentary matter. Proof of payment of insurance premiums is also a documentary matter.
[29] The plaintiff had previously been insured in Thunder Bay. It would have been a simple matter for the plaintiff or his counsel to inquire of the previous insurers or insurance brokers whether the plaintiff had a policy of car insurance in place at the time of the collision. In more than three years after the statement of claim was issued, and despite undertakings to provide proof of insurance from the MTO file, this was not done.
[30] In my view, it is not persuasive that the defence relies on the dated and vague notes from a police officer at a highway traffic stop as an answer to the defendants’ prima facie case. The officer says that had the plaintiff not been insured, he would have charged him for failure to have insurance. However, the plaintiff was using licence plates on his vehicle that had not been authorized for the vehicle, contrary to s. 12(1)(d) of the Highway Traffic Act, but the officer did not charge him with that offence.
[31] It is telling that the plaintiff could not apply for no-fault benefits after the collision because he could not prove he had insurance. The inability to access statutory accident benefits such as income replacement and medical services would be very detrimental to the plaintiff in the face of a significant injury.
[32] It is also telling that the plaintiff was charged with having no insurance after the collision and did not attempt to defend the case. Even supposing that the plaintiff was sufficiently injured that he was unable to attend court, one would not have expected an appeal of his conviction to take five years to launch.
[33] Nor is it an answer to the motion to say that it is unfair that the tortfeasor will escape liability when the plaintiff is blameless. Recently, the Court of Appeal considered the application of s. 267.6(1) in the Insurance Act, in Matheson v. Lewis, 2014 ONCA 542, 242 A.C.W.S. (3d) 189. The facts in Matheson involve a farmer who was driving an uninsured all-terrain vehicle on a public road when he was struck and injured. The court held that although the farmer was not at fault for the accident, he was unable to recover damages because he was driving a vehicle that was not insured.
[34] At para. 37 of the decision, the court discussed the policy rationale for compulsory automobile insurance:
To foster its goal of universal insurance coverage, the legislature has given all owners of vehicles strong incentives to purchase the required insurance. Section 2(3) of the Compulsory Automobile Insurance Act makes the failure to purchase insurance an offence. In addition, the legislature has provided that those who fail to purchase insurance cannot recover loss or damage arising from the use or operation of an automobile or claim significant benefits under the Statutory Accident Benefits Schedule.
[35] The court concluded at para. 39:
…The legislative means of ensuring universal insurance would be rendered nugatory if they were made applicable only to those who cause accidents. Such persons would not be successful in recovering damages in an action in any event. The clear legislative intent is that the prospect of not being able to recover damages or statutory accident benefits gives vehicle owners good reason to purchase insurance before any accident has taken place…. The legal maxim “dura lex sed lex” [“the law is harsh but it is the law”] applies. The provisions, even if considered “very harsh”, must be enforced.
[36] I conclude that there is no genuine issue in this case requiring a trial. The motion for summary judgment is granted and the claim is dismissed.
Costs
[37] If the parties cannot agree on costs, either party may apply to the trial coordinator within thirty days to obtain an appointment to argue costs, failing which costs will be deemed to be settled. Counsel for the defendants has leave to appear by teleconference to argue costs, if so advised.
“Original Signed By”
Regional Senior Justice H.M. Pierce
Released: October 01, 2014
COURT FILE NO.: CV-11-280
DATE: October 01, 2014
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
RICHARD BELBAS
Plaintiff
- and –
GREYHOUND CANADA TRANSPORTATION ULC AND RAMONA MORROW
Defendants
REASONS ON MOTION FOR SUMMARY JUDGMENT
Pierce RSJ.
Released: October 1, 2014
/nf