Syrodoyev v. Hamed Ghamooshi et al. 2015 ONSC 2285

COURT FILE NO.: CV-13-486918

DATE: 20150409

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: BOGDAN SYRODOYEV, a minor by his Litigation Guardian, MARIYA SUBBOTINA, Plaintiff

AND:

HAMED GHAMOOSHI RAMANDI, RAMA IDEAL CONSTRUCTION INC. and STATE FARM MUTUAL INSURANCE COMPANY, Defendants

BEFORE: F.L. Myers J.

COUNSEL: Roman Baber, for the Plaintiff

Ryan Truax, for the Defendants Hamed Ghamooshi Ramandi, Rama Ideal Construction Inc.

Darrell P. March for the Defendant State Farm Mutual Insurance Company

HEARD: April 8, 2015

ENDORSEMENT

[1] By endorsement dated February 20, 2015, reported at 2015 ONSC 1125, the court scheduled three motions. The defendant State Farm moved for summary judgment to dismiss the plaintiff’s claims for aggravated and punitive damages. The plaintiff brought a cross-motion to seek summary judgment for a declaration that the Minor Injury Guidelines promulgated pursuant to section 268.3 of the Insurance Act, R.S.O. 1990 c.I.8 do not apply to limit the plaintiff’s entitlement to recover statutory accident benefits under the Statutory Accident Benefits Schedule, O.reg 34/10 as amended. The plaintiff was also scheduled to bring a motion to amend his statement of claim to add a specific reference to “bad faith damages” on top of the punitive and aggravated damages claimed.

[2] As set out in my prior endorsement, it was State Farm’s allegation that the plaintiff was refusing to particularize the basis upon which he was seeking extra-contractual (aggravated and punitive) damages against his accident benefits insurer. In para. 7 of my endorsement, I recited the plaintiff’s counsel’s clear statement, in response to a question from the bench, that the only basis upon which the plaintiff was making extra-contractual claims was due to the State Farm’s insistence upon applying the Minor Injury Guidelines in face of its own assessor’s psychological or psychiatric assessment that the plaintiff’s injuries fall outside the Minor Injury Guidelines.

[3] Apparently, armed with that information, State Farm then re-assessed its position. It turns out that in 2014, State Farm says it sent three letters to the plaintiff advising that State Farm would recognize his claims for medical and rehabilitation benefits for up to $50,000. Had the Minor Injury Guidelines applied to the plaintiff’s claims, then those claims would have been limited to an aggregate indemnity of $3,500. That is, State Farm had actually already confirmed to the plaintiff that the Minor Injury Guidelines do not apply to his claim. However, it did not formalize its position by delivering an OCF 9 form under the Statutory Accident Benefits Schedule. Neither did it copy the plaintiff’s counsel in its correspondence. It is not clear if the litigation guardian of the plaintiff received the letters.

[4] After reviewing its file, State Farm sent an OCF 9 on March 27, 2015 confirming that the plaintiff’s injuries do not fall within the Minor Injury Guidelines.

[5] As a result of the plaintiff’s particularization and limitation of the extent of its extra-contractual claim before me on February 19, 2015, State Farm no longer needs to bring its summary judgment motion that was predicated upon the claim being bald and unsupported. Moreover, in light of State Farm’s confirmation that the Minor Injury Guidelines do not apply to the plaintiff’s claim, the plaintiff no longer needs to bring his motion seeking a declaration to that effect. Similarly, the plaintiff has determined that his pleas of aggravated and punitive damages are sufficiently broad to incorporate the damages sought due to the allegation of bad faith against State Farm. Accordingly, the plaintiff no longer needs to bring a motion to amend his statement of claim.

[6] The plaintiff seeks costs in respect of the motion practice described above.

[7] The plaintiff says that his motion for a declaration that the Minor Injury Guidelines do not apply spurred the State Farm into re-assessing its file and to make the concession sought. But it was equally the plaintiff’s tactic to decline to particularize the claim for extra-contractual damages that led to the need for the motions.

[8] All three of the motions were unnecessary and could have been avoided had the lawyers just talked to each other, heard each other’s concerns, and then obtained appropriate instructions from their clients. The Commercial List 3 C’s (communication, cooperation and common sense) apply equally in civil actions. This is what ultimately happened but only after the court intervened to require the parties to address each other’s issues rather than sending barbed emails back and forth. Moreover, the plaintiff has withdrawn his refusal to attend for examination for discovery until he turns 13 in two years. The action is now ready to move forward.

Outcome

[9] As both sides parties abandoned motions, they are each presumptively liable to the other for costs under Rule 37.09(3) unless the court orders otherwise. I do. In my view, both the plaintiff and State Farm equally engaged in the tactical gamesmanship that necessitated the motions and has prevented this action from moving forward. Costs should be in the cause.

[10] The tort defendants have recently commenced third party proceedings. No doubt the timing of doing so will be the subject of more motion play. They have named the plaintiff’s mother as a third party defendant, so her fitness to continue as the plaintiff’s litigation guardian may also have to be reconsidered.

[11] It is apparent to me that this action needs ongoing supervision to keep the parties communicating and moving forward. It is a term of this order that as soon as all of the third parties appoint counsel, the plaintiff’s counsel will organize a case conference with me to schedule the remaining steps in this action. Counsel are requested to attempt to agree upon a schedule with fixed dates for each step contemplated in the schedule prior to the case conference. Under rule 50.13, counsel are advised that if they cannot agree on a schedule, the court is likely to impose one at the case conference.

F.L. Myers J.

Date: April 9, 2015