Sathasivam v. Kandasamy, 2015 ONSC 3301

COURT FILE NO.: CV-11-429742

DATE: 20150602

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Sabanayaky Sathasivam, Plaintiff

AND:

Shobana Kandasamy, Honda Canada Finance Inc., Kyle Craddock, John Doe and State Farm Mutual Automobile Insurance Company, Defendants

BEFORE: Mr. Justice M. Faieta

COUNSEL: Ryan Caesar, for the Plaintiff

Sarah Reisler, for the Defendant State Farm

HEARD: May 19, 2015

ENDORSEMENT

[1] The defendant State Farm’s motion for summary judgment was heard on May 19, 2015. It brought the motion on the basis that there is no basis in law or otherwise for the plaintiff to maintain a claim against it.

Background

[2] The allegations in the Statement of Claim are as follows. On June 29, 2009 the plaintiff was the passenger in a vehicle operated by the defendant Kandasamy and insured by State Farm. A vehicle operated by the defendant Craddock was attempting to make a left hand turn when it was forced to abruptly stop as a result of an unidentified vehicle. As a result the Craddock vehicle was struck by the oncoming Kandasamy vehicle. The plaintiff suffered injuries and claims damages in the amount of $1 million plus interest and costs. The plaintiff alleges that her injuries resulted from the negligence of the operators of each of the three vehicles. The plaintiff alleges that the defendant State Farm is liable to compensate her for damages that she sustained on the basis that State Farm’s policy of insurance states that it will pay damages to the plaintiff if she suffered losses in an automobile accident arising from the negligence of the owner or operator of an unidentified automobile.

[3] State Farm has filed a Statement of Defence and Crossclaim. It denies that the plaintiff’s injuries were a result of the unidentified driver’s negligence.

[4] State Farm’s position is summarized in a letter dated February 24, 2014 sent by its counsel to the other parties:

…I do not believe that the Defendants in this action need to admit liability for everyone to agree that one or both of these defendants will be found at least 1 % liable.

The Plaintiff…is claiming damages of $1 million, plus interest. Between Shobana Kandasamy, Honda Canada, and Kyle Craddock, there is plenty of valid insurance available so that there is no basis for an uninsured, underinsured or unidentified claim against State Farm. …

[5] The allegation is that the Craddock vehicle was partially blocked by an unknown vehicle, which cut him off. The respective liability split in this regard will likely require Discoveries, but it is clear that one or both of these Defendants will be found at least 1 percent liable. The allegations against John Doe, the driver who allegedly cut off the Craddock vehicle, are meaningless in terms of letting State Farm out of the accident. Irrespective of John Doe, Craddock and/or Kandasamy will be held liable for the injuries sustained by the plaintiff passenger since there is a positive onus on a driver to maintain a safe distance and drive reasonably in the circumstances.

[6] A Request to Admit was delivered by State Farm. It asked the parties to admit that the defendants Kandasamy and Craddock are each at least 1 percent liable for the motor vehicle accident. Counsel for both Kandasamy and Craddock have refused to admit that their clients are at least 1 percent liable for the accident.

The Issue

[7] State Farm relies on the following provision of Regulation 676, R.R.O. 1990, Uninsured Automobile Coverage, which states that:

2. (1) The insurer [in respect of a motor vehicle liability policy under subsection 265(1) of the Insurance Act] shall not be liable to make any payment…

(c) where the person insured under the contract is entitled to recover money under the third party liability section of a motor vehicle liability policy;

[8] This motion raises the question of whether State Farm has demonstrated that the plaintiff is entitled to recover money under the third party liability section of a motor vehicle policy held by either the defendant Kandasamy or Craddock.

The Law

[9] This motion for summary judgment is brought pursuant to Rule 20 of the Rules of Civil Procedure.

[10] Rule 20.04 states, in part, that:

(2) The court shall grant summary judgment if,

(a) the court is satisfied that there is no genuine issue requiring a trial with respect to a claim or defence; or

(b) the parties agree to have all or part of the claim determined by a summary judgment and the court is satisfied that it is appropriate to grant summary judgment.

(2.1) In determining under clause (2)(a) whether there is a genuine issue requiring a trial, the court shall consider the evidence submitted by the parties and, if the determination is being made by a judge, the judge may exercise any of the following powers for the purpose, unless it is in the interest of just for such powers to be exercised only at a trial.

1. Weighing the evidence.

2. Evaluating the credibility of a deponent.

3. Drawing any reasonable inference from the evidence.

(2.2) A judge may, for the purposes of exercising any of the powers set out in subrule (2.1), order that oral evidence be presented by one or more parties, with or without time limits on its presentation.

[11] I adopt the following statements from Kelly v Cote, 2015 ONSC 1255 regarding summary judgment motions:

14 Under rule 20.04(2)(a), a court must grant summary judgment if it is satisfied that there is no genuine issue requiring a trial with respect to a claim or a defence. The onus of proving that there is no genuine issue requiring a trial is on the moving parties. There is no onus on the responding parties. However, if the moving parties demonstrate a prima facie right to the remedy, there is an evidentiary burden placed on the responding parties to support their position that a genuine issue requiring a trial exists: see Toronto-Dominion Bank v. 466888 Ontario Ltd., 2010 ONSC 3798, 103 O.R. (3d) 502, at para. 2, aff'd 2011 ONCA 149, [2011] O.J. No. 827.

15 In 2010, Rule 20 was amended to expand the powers of a court hearing a motion for summary judgment. Under rule 20.04(2.1), a judge may weigh the evidence, evaluate the credibility of a deponent, and draw reasonable inferences from the evidence, unless it is in the interest of justice that such powers be exercised only at trial.

16 In Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87, the Supreme Court of Canada defined the circumstances in which there will be no genuine issue requiring a trial. The Court held, 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.

17 The Supreme Court in Hryniak held that there is a two-stage process involved in a summary judgment motion under rule 20.04. Karakatsanis J. explained the process as follows, at para. 66:

On a motion for summary judgment under Rule 20.04, the judge should first determine if there is a genuine issue requiring trial based only on the evidence before her, without using the new fact-finding powers. There will be no genuine issue requiring a trial if the summary judgment process provides her with the evidence required to fairly and justly adjudicate the dispute and is a timely, affordable and proportionate procedure, under Rule 20.04(2)(a). If there appears to be a genuine issue requiring a trial, she should then determine if the need for a trial can be avoided by using the new powers under Rules 20.04(2.01) and (2.2). She may, at her discretion, 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. [Emphasis in original.]

[12] The first step of a summary judgment motion requires a consideration of the evidence adduced on this motion. State Farm submitted an affidavit in support of its submission that I should find at least one of the defendants Kandasamy and Craddock as being at least 1 percent responsible for the accident. The affidavit includes a copy of the motor vehicle accident report. The affidavit also contains statements based on the affiant’s information and belief without stating its source. The affidavit states that the affiant “…verily believes that the parties confirmed the essential facts of loss as reported by the Motor Vehicle Accident Report during their Examinations for Discovery, which were conducted on March 6, July 17, and November 10, 2014.” Further, the relevant portions of the transcripts from these discoveries were not attached as exhibits to this affidavit. In my view, the affidavit should be disregarded to the extent that it fails to comply with Rule 4.06(2), 20.02(1) and 39.01(4) in that it fails to indicate the source of the affiants information and belief.

[13] The defendants Kandasamy and Craddock take the position that each of them are not liable for the plaintiff’s damages. Both defendants responded to State Farm’s Request to Admit by specifically denying that they are at least 1 percent liable for the motor vehicle accident. Each defendant admitted that the accident was caused by the other defendant.

[14] In my view the material delivered by State Farm is an insufficient basis to determine whether the defendants Kandasamy and Craddock are at least 1 percent at fault for this accident. Evidence, rather than speculation, is required to make this determination.

[15] Accordingly, there appears to be a genuine issue requiring a trial.

[16] The second step of the summary judgment analysis is whether the need for a trial can be avoided using the new powers. In my view none of the powers described in Rule 20.04(2.1) would assist in determining whether there is a genuine issue requiring a trial.

Conclusion

[17] I dismiss State Farm’s motion for summary judgment.

[18] At the hearing of this motion counsel for the defendant State Farm indicated that State Farm sought two alternate forms of relief in an effort to minimize its costs while this action proceeds. Both State Farm and the plaintiff have provided written submissions.

[19] The defendant State Farm seeks either:

(1) an Order permitting State Farm to unilaterally withdraw or abstain from any mandatory mediations, pre-trial conferences or other conferences except by further Order of the Court (“the non-participation direction proposal”);

(2) an Order dismissing the action against State Farm without prejudice of the plaintiff’s right to recover a judgment in this proceeding against State Farm to the applicable policy limits if the unidentified motorist is found 100 percent liable at the trial of the action (the ”dismissal without prejudice proposal”).

[20] The plaintiff does not consent to the either proposal.

[21] The plaintiff submits that the dismissal without prejudice proposal would result in delay and uncertainty in the event that, at trial, it is found that John Doe is 100 percent liable for the accident. I agree, and therefore, reject that proposal. An approach that better takes into account not only its interests but also those of the plaintiff would have been for State Farm to simply consent to the judgment in the event that John Doe was found 100 percent liable, subject to its policy limits. That approach was proposed by the plaintiff but not addressed by State Farm.

[22] With respect to the non-participation direction, it is my view that exempting State Farm from settlement discussions may serve State Farm’s interests in minimizing its legal costs, but it would be counterproductive to the possible out of court resolution of this action.

[23] Accordingly, I reject both proposals.

[24] In accordance with Hryniak, I remain seized of this action.

[25] I order that the counsel for the parties attend a case conference by telephone, pursuant to Rules 1.08 and 50.13, on Monday, June 22, 2015 at 8:30 a.m. for the purpose of addressing the matters described under Rule 50.13(5). Their clients need not participate in this case conference. My assistant will contact counsel with the details for the conference call.

[26] The plaintiff claims costs of this motion in the amount of $3,407.50. In my view, it is fair, reasonable and proportional to order that State Farm pay costs of $2,000.00 to the plaintiff, forthwith.

Mr. Justice M. Faieta

Date: June 2, 2015