Superior Court of Justice
CITATION: Nguyen v. Economical Mutual Insurance Company et al., 2015 ONSC 2646
COURT FILE NO.: CV-14-00517417-0000
DATE: 20150424
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
THI BINH NGUYEN
Plaintiff
– and –
ECONOMICAL MUTUAL INSURANCE COMPANY and JEFF SMITH and COLIN DAVY and ANN SHEWCHUK
Defendants
Thi Binh Nguyen in person, Plaintiff-Respondent
Catherine Korte, for the Defendant-Moving Party
HEARD: April 2, 2015
REASONS
[1] The defendants seek to have the plaintiff’s Statement of Claim dismissed on motion made under r. 21.01 or r. 2.1. Alternatively, the defendants seek dismissal of the claims as against the defendants, Smith, Davy and Shewchuk. The plaintiff opposes same.
[2] The plaintiff was self-represented and accompanied by her daughter Rose Le who made submissions on her mother’s behalf given her mother’s first language is Vietnamese and she has a limited comprehension and ability to speak English. Ms. Le translated my initial comments to the plaintiff regarding her right to have counsel and the importance of getting legal advice. The Court confirmed the plaintiff’s decision to proceed without counsel and that this decision was voluntary. The Court noted that the materials provided by the plaintiff clearly exhibited considerable legal training. Ms. Le advised while neither she, her mother or any other member of the family has formal legal training, they have consulted with lawyers and made use of the internet. The Court explained to the plaintiff (with her daughter translating), the Court’s concern that the plaintiff was seeking dismissal of all or part of the plaintiff’s action and that this was a potential result. The plaintiff, through her daughter, confirmed her understanding of this risk.
Facts
[3] From the Motion Records filed by each party, it is clear the plaintiff was injured in a motor vehicle accident which occurred on January 27, 2003. The plaintiff made an accident benefit claim against the corporate defendant which continued until the caregiving benefits being paid were terminated effective August 23, 2008. The claim sought additional caregiving benefits and then non-earner benefits which required her to meet the “complete inability” test defined in s. 2(4) of the applicable Statutory Accident Benefit Schedule (accidents on or after November 1, 1996) which requires her to sustain “an impairment that continuously prevents the person from engaging in substantially all of the activities in which the person ordinarily engaged before the accident”. The plaintiff contested the termination of benefits and commenced an arbitration proceeding before the Financial Services Commission of Ontario which resulted in a hearing that proceeded on October 9, 10, November 9, 2012 and February 1, 2013. The decision was reserved and released August 28, 2013 with Arbitrator Richards concluding the plaintiff had not presented evidence demonstrating she was continuously prevented from engaging in substantially all of her pre-accident activities. Thus her application was dismissed.
[4] In this regard, it should be noted Arbitrator Richards found the plaintiff’s impairments primarily psychological in nature. In this regard, the defendant insurer relied on an examination at their request and the evidence of Dr. Monte Bail, psychiatrist. However, Arbitrator Richards concluded Dr. Bail did not fairly assess the plaintiff and did not assign great weight to his opinion.
[5] The plaintiff appealed the decision of Arbitrator Richards which was heard on September 9, 2014 by Directors Delegate David Evans. His reasons were released October 3, 2014 which confirmed the Arbitrator’s order and dismissed the appeal.
[6] The plaintiff commenced an action in this Court on April 30, 2014 against the defendant insurer and Dr. Bail (court file CV 14 503198) which is being defended and is the subject of a November 21, 2014 endorsement by Justice Stinson regarding an appropriate discovery plan.
[7] This action against the defendant insurer and three of its employees, Smith, Davy and Shewchuk is commenced on December 3, 2014, Discovery plans have been exchanged, not apparently agreed upon, and is the subject of a motion by the plaintiff to proceed on June 17, 2015. The key aspects of this action are the plaintiff’s allegation that the defendants, Smith, Davy and Shewchuk were the defendant’s Claim Adjuster, Ontario Region Claims Team Leader and Accident Benefits Technical Advisor respectively, and that they and the plaintiff reached a settlement agreement on August 22, 2013 in the amount of $157,500 in exchange for a full and final release (see paragraphs 3, 4, 5 and 9 of the Statement of Claim).
[8] Paragraph 11 of the defendant’s Statement of Defence admits the defendants Smith, Davy and Shewchuk were at all material times employed by the defendant insurer and that they were acting in the course of their employment.
Issue – Cause of Action
[9] My understanding of a motion under r. 21.01(1)(b) is that no evidence is admissible and that, as stated by Justice E. Macdonald in Islington Village Inc. v. Canadian Imperial Bank of Commerce, [1992] O.J. No. 1940 that striking pleadings should be exercised with great care and reluctance and that the pleadings “on a motion such as this must be taken as correct”. Thus, for the purpose of this motion, the Court presumes the plaintiff has proven, as set out in paragraphs 3, 4 and 5, that the defendants Smith, Davy and Shewchuk are employed by the defendant insurer. Further, one or more of them reached a settlement with the plaintiff on August 22, 2013 in the amount of $157,500 in exchange for full and final release. It is noted this date is six days before Arbitrator Richards releases his reasons and thus the outcome of the arbitration is, as of August 22, 2013, unknown.
[10] As a result, the Statement of Claim fails to set out a cause of action against the defendants, Smith, Davy and Shewchuk. Given their status as employees and acting within the course of their employment (in the absence of any allegations any of them contracted to pay the $157,500 to the plaintiff personally), the action as against them is dismissed. I am reinforced in this conclusion given the admission by the defendants they were acting in the course of their employment. The defendants correctly raise the vicarious liability of the employees and as noted in the decision of Bush (c.o.b. Bush Edit House) v. Continental Insurance Co., [2001] O.J. No. 3315, at paragraph 25 and Standard Life Insurance Co. v. Elliott, 2007 18579 (ON SC), [2007] O.J. No. 2031, at paragraph 3.
[11] However, the action as against the defendant, Economical, for enforcement of a (purported) settlement or breach of contract may continue.
Issue – Frivolous, Vexatious or Abuse of Process
[12] The defendant alleges this claim by the plaintiff meets the criteria under r. 21.01(3)(d) or, alternatively Rule 2.1.
[13] The defendants describes this action as a veiled attempt by the plaintiff to re-litigate her claims for additional accident benefits which were dismissed by Arbitrator Richards. The defendants argue the decision to appeal that decision to Directors Delegate Evans, without success, rather than proceed directly with this action to enforce the purported settlement, supports this argument.
[14] My concern is that there are two different causes of action raised and it is possible that the defendant insurer negotiated a settlement in advance of the decision by Arbitrator Richards fearing it would not be favourable. Alternatively, the defendant insurer made a settlement offer which remained outstanding and available for acceptance as of August 22, 2013 when the plaintiff communicated her acceptance of the offer. It is the Court’s view this would be something that would be straightforward in proving or disproving either by written documents or testimony with confirming records that the offer was made and accepted such that a full trial is likely not required. To that end, the defendants’ motion is premature.
[15] The defendant insurer did not emphasize its right to request the action be dismissed as frivolous, vexatious or an abuse of the process of the Court under Rule 2.1. This rule permits the Court, on its own initiative, to address this issue. My review of the reasons of Justice Myers in Gao v. Ontario (Workplace Safety and Insurance Board), 2014 ONSC 6497, [2014] O.J. No. 5307 identifies the problem of frivolous proceedings being a strain on Court resources and a burden on the party against whom the proceedings are commenced. I agree with Justice Myers Rule 2.1 is “aimed at clearer cases of abuse” (paragraph 12 of his reasons). Overall, my sense is that the plaintiff is approaching this legal threshold with her repeated litigation against the defendant, Economical. However, the action before the Court in this matter presents a clearly defined and alternative relief to the claim for additional benefits which was unsuccessful at the Financial Services Commission of Ontario, and is also distinct from the libel action with an inferred vicarious liability claim in the action against Economical Insurance and Dr. Bail. As a result, the Court is not prepared to strike out or dismiss this action at this juncture.
[16] Had this request come before the Court following delivery of the parties’ affidavit of documents or in the form of a summary judgment motion following discovery of the plaintiff the absence of any evidence supports the allegation in paragraph 9 of the Statement of Claim, the result may have been quite different.
Costs
[17] The defendants, having had some success, is entitled to its costs. Given all defendants were represented by the same counsel, the Court orders the costs, fixed at $2,000 inclusive of fees, HST and disbursements, be payable by the plaintiff to the defendants following when this matter is finally determined, or to use the legal phrase, in any event of the cause.
Mr. Justice G. Dow
Released: April 24, 2015
CITATION: Nguyen v. Economical Mutual Insurance Company et al., 2015 ONSC 2646
COURT FILE NO.: CV-14-00517417-0000
DATE: 20150424
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
THI BINH NGUYEN
Plaintiff
– and –
ECONOMICAL MUTUAL INSURANCE COMPANY and JEFF SMITH and COLIN DAVY and ANN SHEWCHUK
Defendants
REASONS FOR JUDGMENT
Mr. Justice G. Dow
Released: April 24, 2015