SUPERIOR COURT OF JUSTICE - ONTARIO
COURT FILE NO.: CV-12-447081A1
DATE: 20141209
RE: Gavanpal Anand, Plaintiff
AND:
Rohit Rumpal, Ria Patel and Dollar Thrifty Automotive Group, Defendants
AND:
RBC General Insurance Company, Third Party
BEFORE: Carole J. Brown J.
COUNSEL: Michael Burgar for the Defendant, Rumpal
Paul Omeziri for the Third Party, RBC
HEARD: October 17, 2014
ENDORSEMENT
[1] This motion for summary judgment was brought under Rule 20.04(2) (a) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 by the defendant Rohit Rumpal, the driver of a rented automobile that was involved in a single vehicle accident on February 25, 2011 in New York State. Mr. Rumpal, defended by his insurer, TD Insurance, seeks an order declaring that
(1) RBC General Insurance Company, the insurer of Mr. Rumpal’s co-defendant, Ria Patel, is the “first loss” insurer in relation to the main action pursuant to s. 277(1.1) of the Insurance Act, R.S.O. 1990, c. I;
(2) Ontario law, as opposed to New York State law, applies to the issue of the vicarious liability of Ms. Patel; and
(3) RBC pay the costs of Mr. Rumpal’s defence in the main action, to be reserved to the time of final settlement or judgment in the main action.
[2] For the reasons that follow, Mr. Rumpal’s motion for summary judgment is dismissed. Whether RBC is the first loss insurer in the main action is a genuine issue requiring a trial. There is a genuine issue as to whether Ms. Patel was the sole lessee; and there is a genuine issue as to whether New York State law governs the issue of liability, and if so, whether RBC would be first loss insurer under New York State law.
[3] On a cross-motion, RBC seeks leave to amend Ms. Patel’s statement of defence in the main action, and RBC’s pleadings in this third-party action, so as to plead New York State law.
[4] For the reasons that follow, RBC’s cross-motion for leave to amend is allowed. Contrary to the submissions of Mr. Rumpal, the proposed amendment does not have the practical effect of withdrawing an admission. As such, neither Rule 51.05 nor the three-part test from Antipas v. Coroneos (1988), 1988 10348 (ON SC), 26 C.P.C. (2d) 63, 29 C.C.L.I. 161 (H.C.) apply to this matter. RBC’s cross-motion falls squarely within Rule 26.01, and I am satisfied that no prejudice will result from the proposed amendment that cannot be compensated for by costs or an adjournment.
PART ONE – THE MOTION FOR SUMMARY JUDGMENT
The Facts
[5] Mr. Rumpal, Ms. Patel and three others were travelling from Toronto to Delaware for a Bollywood dancing competition. The rental vehicle, a 2010 Toyota Camry, was picked up by Mr. Rumpal on February 24, 2014. The rental invoice listed both Mr. Rumpal and Ms. Patel as customers under “customer information.” Both of their drivers’ licenses were listed on the rental invoice. Ms. Patel used her MasterCard to pay for the rental. According to Ms. Patel, the other passengers, including Mr. Rumpal, shared the cost of renting the car. In his affidavit on this motion, Mr. Rumpal states that he never made any payments toward the rental car.
[6] When the accident occurred, Mr. Rumpal was driving in difficult weather conditions. The vehicle fishtailed, spun, entered a ditch, and struck a reflective metal post. Ms. Patel was asleep at the time of the accident. After the accident, Mr. Rumpal completed and signed the damage report and submitted it to Dollar Thrifty.
[7] As stated, Mr. Rumpal has received a defence from TD Insurance, pursuant to automobile insurance coverage available to him through policies obtained by his father in relation to another vehicle. Ms. Patel has received a defence from RBC, the insurer of her family’s vehicle.
Relevant Statutory Provisions
[8] Section 192(3) of the Highway Traffic Act, R.S.O. 1990, c. H.8 makes a lessee liable in the same manner as an owner of a vehicle for any loss or damage caused by negligent operation:
Liability for loss or damage
- (1) The driver 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.
Same
(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.
Same
(3) A lessee 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 lessee’s consent in the possession of some person other than the lessee or the lessee’s chauffeur.
[9] In other words, a person who rents a motor vehicle may be held liable for a driver’s negligence in the same way an owner would. Section 277(1.1) of the Insurance Act determines the priority of insurance coverage. It provides that if an automobile was leased, the insurance available to the lessee is the first to respond, followed by the insurance available to the driver, followed by the insurance available to the owner:
Order in which policies are to respond
(1.1) Despite subsection (1), if an automobile is leased, the following rules apply to determine the order in which the third party liability provisions of any available motor vehicle liability policies shall respond in respect of liability arising from or occurring in connection with the ownership or, directly or indirectly, with the use or operation of the automobile on or after the day this subsection comes into force:
Firstly, insurance available under a contract evidenced by a motor vehicle liability policy under which the lessee of the automobile is entitled to indemnity as an insured named in the contract.
Secondly, insurance available under a contract evidenced by a motor vehicle liability policy under which the driver of the automobile is entitled to indemnity, either as an insured named in the contract, as the spouse of an insured named in the contract who resides with that insured or as a driver named in the contract, is excess to the insurance referred to in paragraph 1.
Thirdly, insurance available under a contract evidenced by a motor vehicle liability policy under which the owner of the automobile is entitled to indemnity as an insured named in the contract is excess to the insurance referred to in paragraphs 1 and 2.
Lessee defined
- (4) In this section,
“lessee” means, in respect of an automobile, a person who is leasing or renting the automobile for any period of time, and “leased” has a corresponding meaning.
Rule 20.04
[10] Rule 20.04(2) (a) of the Rules of Civil Procedure provides that summary judgment shall be granted “if the court is satisfied that there is no genuine issue requiring a trial with respect to a claim or defence.” There will be no genuine issue for trial where the court is able to reach a fair and just determination on the merits. “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”: Hryniak v. Mauldin, [2014] 1 S.C.R. 87, 2014 SCC 7, at para. 49.
[11] If the court finds that there is no genuine issue for trial, it must consider whether, if the fact finding tools provided for by Rule 20.04(2.1) and (2.2) were to be used, a trial could be avoided. The court may “use those powers, provided that their use is not against the interest of justice. Their use will not be against the interest of justice if they will lead to a fair and just result and will serve the goals of timeliness, affordability and proportionality in light of the litigation as a whole”: Hryniak, at para. 66.
(Decision continues verbatim in structure and wording, preserving all paragraphs exactly as in the source.)
Carole J. Brown J.
Date: December 9, 2014