ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 02-CV-241314CM1
DATE: 20150720
BETWEEN:
DARRYL JOHN STICKEL
Plaintiff/Appellant
– and –
HASSAN LEZZAIK, JOHN DOE #1, JOHN DOE #2, JANE DOE, CGU INSURANCE COMPANY OF CANADA, BLUELINE TAXI CO. LIMITED, 561100 ONTARIO LTD., 2008632 ONTARIO INC. and COVENTRY CONNECTIONS INC.
Defendants/Respondents
Alfred Kwinter and Nga Dang for the Plaintiff (Appellant)
Mark B. Harrington and Sandra De Carolis for the Defendant (Respondent) Coventry Connections Inc.
HEARD: July 6, 2015
PERELL, J.
REASONS FOR DECISION
A. INTRODUCTION
[1] Although it was argued in 2015, this appeal is about a Master’s Order made in 2011 with Reasons for Decision delivered in 2012. In her Order, Master Sproat (now Master Jean) allowed a defendant to withdraw an admission made in its Statement of Defence in an action commenced in 2002 about a car accident that occurred in 2001.
[2] The Master’s Reasons are reported as Stickel v. Lezzaik, 2012 ONCS 5912 (Master). For the reasons that follow I dismiss the appeal.
B. FACTUAL AND PROCEDURAL BACKGROUND
[3] In 2001, the Plaintiff, Darryl John Stickel, who has a Ph.D. in Business Administration, was injured while a passenger in a taxi driven in Ottawa, Ontario by the Defendant Hassan Lezzaik. The taxicab carried the banner of BlueLine Taxi Co. Limited (“BlueLine”). The taxi allegedly rear-ended an unidentified vehicle, and Dr. Stickel alleges that he was seriously injured in the collision.
[4] Mr. Lezzaik owned the taxi. He also owned the dispatch radio, meter, company sign, and all other taxi-related paraphernalia. He was responsible for the operation, maintenance, and repair of the taxi. Mr. Lezzaik did not receive a salary or any employee benefits from BlueLine, and BlueLine did not control his hours of work, and it did not control whom Mr. Lezzaik might hire as a co-driver of the vehicle. Mr. Lezzaik was, however, required to abide by the road safety procedures and driver and vehicle requirements outlined in a Collective Agreement between BlueLine and the drivers of vehicles bearing the BlueLine banner.
[5] BlueLine was insured for $30 million. Mr. Lezzaik has his own automobile insurance policy with a $2 million limit.
[6] On December 20, 2002, Dr. Stickel commenced an action against Mr. Lezzaik, BlueLine, Coventry Connections Inc. (“Coventry”), 561100 Ontario Ltd., 2008632 Ontario Inc., CGU Insurance Company of Canada (for uninsured and underinsured coverage), John Doe #1 and John Doe #2. Dr. Stickel claimed damages of $15 million. For present purposes, the pertinent paragraphs from his Statement of Claim are paragraphs 3, 4, 9, 17, 19A, 19B, and 30 which state:
The Defendant, Hassan Lezzaik, resides in the City of Ottawa, in the Province of Ontario. This Defendant was at all material times the operator of a Blue Line Taxi Co. Limited taxi cab, bearing City of Ottawa taxi licence … (hereinafter referred to as the “Lezzaik vehicle”). The Lezzaik vehicle was at all material times operated with the owner’s knowledge and consent.
The Defendant, Blue Line Taxi Co. Limited, is a limited company incorporated pursuant to the laws of the Province of Ontario, and it has its head office operating from the City of Ottawa, in the Province of Ontario.
At all material times, the Defendant Hassan Lezzaik, or in the alternative the Defendant Blue Line Taxi Co. Limited and/or the Defendant 561100 Ontario Ltd., and/or the Defendant 2008632 Ontario Inc., and/or the Defendant Coventry Connections Inc., or in the further alternative the Defendant John Doe #1, was the owner of the Lezzaik vehicle.
On or about the 9th day of January 2001, the Plaintiff Darryl Stickel, who is legally blind, was a seat belted taxi cab passenger in the Lezzaik vehicle, seated in the rear passenger side seat. The Lezzaik vehicle proceeded … when suddenly and without warning the Lezzaik vehicle collided with an unidentified vehicle ahead, which resulted in the Plaintiff Darryl Stickel, striking his head against the passenger side window.
The Plaintiffs plead the aforementioned motor vehicle accident was caused as a result of the joint/and or several negligence of the Defendants, Hassan Lezzaik, Blue Line Taxi Co. Limited, 561100 Ontario Ltd., 2008632 Ontario Inc., and Coventry Connections Inc., John Doe #1, Jane Doe, and John Doe #2, or any of them as follows:
A. The Particulars of the negligence of the Defendant, Hassan Lezzaik, are as follows:
(a) he failed to keep a proper lookout;
(b) he failed to slow down, stop or turn to the left or the right so as to avoid a collision with the vehicle ahead …
B. The Particulars of the negligence of the Defendants, Blue Line Taxi Co. Limited, Blue Line Taxi Co. Limited, 561100 Ontario Ltd., 2008632 Ontario Inc., and Coventry Connections Inc., or in the alternative John Doe #1,are as follows:
(a) they/he allowed the Defendant Hassan Lezzaik to operate the Lezzaik vehicle which they/he knew or ought to have known was mechanically defective;
(b) they/he allowed the Defendant Hassan Lezzaik to operate the Lezzaik vehicle when they/he knew or ought to have known that Hassan Lezzaik vehicle when they/he knew or ought to have known that Hassan Lezzaik did not have sufficient skill, ability or training to operate same;
(c) they/he permitted the Lezzaik vehicle to be operated by an incompetent driver;
(d) they/he permitted the Lezzaik vehicle to be operated by a person suffering from a medical disability which affected his ability to operate a motor vehicle and of which they/he knew or ought to have known;
(e) they/he permitted the Lezzaik vehicle to be operated by a person whose ability to do so was impaired by alcohol, drugs, medication, fatigue or mental distress;
(f) they/he failed to have brakes on the Lezzaik vehicle in a proper working order, or in the alternative, they/he failed to properly maintain the brakes;
(g) they/he failed to properly train and/or instruct their driver.
- The Plaintiffs rely upon the following statutes as amended from time to time:
(a) Negligence Act, R.S.O. 1990, c. N.1;
(b) Insurance Act, R.S.O. 1990, c. I.8;
(c) Highway Traffic Act, R.S.O. 1990, c. H. 8 …
[7] Mr. Lezzaik and Coventry retained Rodney D. Dale of Lerners LLP to act for them in defending Dr. Stickel’s action, and on February 28, 2003, Mr. Lezzaik and Coventry served a Statement of Defence. In their pleading, they denied liability for the collision, and they denied that the taxi was involved in the accident. In their pleading, it was, however, admitted that BlueLine, 561100 Ontario Ltd., and 2008632 Ontario Inc. had been amalgamated into Coventry Connections Inc. It was also admitted that Mr. Lezzaik was employed as a taxi driver by BlueLine at the time of the accident. It is this last admission that Coventry says was a mistake, and it is this admission that it later sought to withdraw.
[8] The Statement of Defence was drafted by Steven Polak, then an associate lawyer at Lerners LLP. Mr. Dale reviewed the pleading, but he did not note the admission that Mr. Lezzaik was employed by Coventry.
[9] Pausing here, I can point out a peculiar feature of the case and of the appeal of the Master’s Order. This peculiarity, which goes to the matter of prejudice discussed below, is that the admission in the Statement of Defence that is at the centre of the motion and the appeal is not critical to Dr. Stickel’s negligence claim against Coventry. In other words, the case against Coventry is that it did not supervise a driver of a vehicle identified as a BlueLine taxi. In this regard, it is notable and telling that in his original Statement of Claim, Dr. Stickel does not allege that Mr. Lezzaik was an employee of BlueLine. Thus, at the outset, the so-called admission was to an allegation that had not been pleaded in the original Statement of Claim. While it might be helpful to the success of Dr. Stickel’s negligence claim against Coventry to prove that Mr. Lezzaik was an employee of BlueLine, there are other ways to prove that Coventry is culpable. It is not crucial to Dr. Stickel’s case that Mr. Lezzaik is an employee; what is crucial is that there be a relationship between BlueLine and its drivers that imposes a duty of care on BlueLine to the passengers of those vehicles.
[10] Returning to the factual background, on April 15, 2004, Mr. Lezzaik was examined for discovery. At his discovery, it was admitted that he was an employee of BlueLine at the time of the accident and that he was an insured under BlueLine’s insurance policy. The examination for discovery, however, was not completed.
[11] For reasons that were not explained to me, progress in the action then seems to have ground to a crawl, but I gather there was a some delay associated with consolidating various actions and because Dr. Stickel separated from his wife, who was advancing a Family Law Act claim.
[12] In any event, on January 12, 2010, Dr. Stickel filed a Fresh as Amended Statement of Claim, and on February 10, 2010, Mr. Lezzaik and Coventry delivered a Fresh as Amended Statement of Defence. The so-called admission was carried forward into the amended pleading, and Mr. Lezzaik and Coventry pleaded in paragraph 5 of their Fresh as Amended Statement of Claim that: “These Defendants admit that Hassan Lezzaik was, at the time of the alleged accident, employed as a taxi cab driver by Blue Line Taxi Cab Co. Limited”.
[13] The continued Examination for Discovery of Mr. Lezzaik was scheduled for May 13, 2010. In preparation for this examination, Mr. Dale reviewed the file including the transcript from Mr. Lezzaik’s previous examination, and on May 4, 2010, Mr. Dale spoke with Mr. Lezzaik by telephone.
[14] In the telephone conversation, Mr. Lezzaik informed Mr. Dale’s that on January 9, 2001, he was driving a BlueLine taxi cab that he owned and that was registered in his name. The vehicle was only driven by Mr. Lezzaik and his cousin, Abbas. Mr. Lezzaik said that he paid a monthly fee for the rental of the taxi permit and paid BlueLine for a dispatch service fee on a monthly basis. He stated that he kept all of the fares and paid his expenses out of the fares. Mr. Lezzaik had his own automobile liability insurance coverage of $2 million.
[15] I pause here to point out two more peculiarities of the motion before the Master and of this appeal. First, on the motion before the Master, Mr. Dale delivered an affidavit in which he deposed about his conversations with Mr. Lezzaik, and on the motion and on this appeal, Dr. Stickel argued that this was a breach of solicitor-and-client privilege and that the Master erred by having regard to this evidence without it having been established that Mr. Lezzaik had waived his privilege about his communications with his lawyer at the time. Second, Dr. Stickel argued that the Master erred in relying on Mr. Dale’s evidence about Mr. Polak’s mistake in drafting the pleading because Mr. Polak, now a partner of Lerner LLP, could have provided the evidence. I will return to these arguments in the discussion part of these Reasons for Decision.
[16] Returning to the factual background, on May 11, 2010, Mr. Dale spoke with Tony Vanikiotis, the General Manager of Coventry, by telephone to prepare him for his examination on behalf of Coventry, which was scheduled for May 13, 2010.
[17] In his telephone conversation, Mr. Dale asked Mr. Vanikiotis about the relationship between the taxi drivers and BlueLine, and Mr. Vanikiotis indicated that the taxi drivers were “dependent contractors”. In what was fresh news to Mr. Dale, Mr. Vanikiotis said that there was a Collective Agreement between the taxi drivers union and the taxi company and that the Labour Relations Board had previously defined the taxi drivers as dependent contractors. Also news to Mr. Dale was the information that BlueLine had two insurance policies, a $23 million coverage policy for commercial general liability and a fleet policy for automobile liability insurance. Mr. Lezzaik was not an insured under the fleet policy because he had obtained his own automobile insurance.
[18] During the telephone conference call on May 11, 2010, it was pointed out to Mr. Dale that the Statement of Defence had already pleaded that Mr. Lezzaik was an employee of BlueLine. Mr. Dale deposed that he was very surprised to learn that this admission had been made.
[19] After Mr. Dale got off the phone, he perceived that his firm had a problem in their joint retainer. He wrote all the counsel and advised them that Lerners LLP would be amending the Fresh as Amended Statement of Defence to withdraw the admission that Mr. Lezzaik was an employee of BlueLine. The discoveries that were scheduled for May 13, 2010, were cancelled.
[20] I pause for a third time to point out three more peculiarities of the factual background to the motion under appeal. First, it does appear that Lerners LLP had a conflict in its joint retainer of Mr. Lezzaik and Coventry in that there appears to be adversity in interest about whether or not Mr. Lezzaik is an employee. Also, if Mr. Lezzaik were found liable, it would be desirable from his perspective that Coventry also be found liable, since he had considerably less insurance coverage than did Coventry. The first peculiarity, however, is that this conflict between the interests of Mr. Lezzaik and Coventry exists, once again, independently of defining the precise legal nature of their relationship be it employer-employee, dispatcher-dependent contractor, or a driver-taxi company, and the second peculiarity is that this conflict ought to have been apparent from the outset to Mr. Dale and Mr. Polak regardless of whether or not Mr. Lezzaik was an employee.
[21] The third peculiarity is that Dr. Stickel says he is the one that is prejudiced by Coventry withdrawing its admission because the withdrawal of the admission, in effect, withdraws Coventry`s insurance coverage for Mr. Lezzaik. I will return to this peculiarity in the discussion below, but for immediate purposes, I simply note again that the withdrawal of the admission about employee status may not ultimately cause Dr. Stickel any harm, because, for the reasons expressed above, his case against Coventry does not necessarily depend upon proving that Mr. Lezzaik was its employee.
[22] Returning again to the factual background, by August 2010, Lerners LLP removed itself as Lawyer of Record for Mr. Lezzaik and for Coventry. Mark B. Harrington of Torkin Manes LLP was retained by Coventry, and Stephen G. Ross of Rogers Partners LLP was retained by Mr. Lezzaik.
[23] For reasons not explained to me, about ten months then passed until June of 2011, when Coventry brought a motion to withdraw the admission in its Fresh as Amended Statement of Defence.
[24] Notably and remarkably, Dr. Stickel brought a cross-motion for leave to amend his Statement of Claim to plead that Mr. Lezzaik is an employee. Here, there is yet again another peculiarity. The cross-motion demonstrates that the so-called admission was made to a factual allegation that had not yet been pleaded.
[25] Coventry’s motion and the cross-motion were heard on December 6, 2011. Coventry consented to the cross-motion. With respect to the motion, the Master made an endorsement granting the motion with Reasons to follow.
[26] Nine months passed, and on September 17, 2012, the Master, now writing as Master Jean, released her Reasons for Decision. The pertinent part of her Reasons is set out in the next section of these Reasons for Decision.
[27] Dr. Stickel appealed, and for reasons again not explained to me, it took almost three years for the appeal to be heard.
C. THE MASTER’S REASONS
[28] For present purposes, the pertinent parts of the Master’s Reasons for Decision are set out below:
These reasons relate to a motion by the defendant, Coventry Connections Inc. ("Coventry") for an order granting leave to withdraw an admission. Upon hearing submissions of counsel for the parties, I informed the parties that the motion was granted for reasons to follow. These are my reasons. Costs are reserved pending submissions from the parties.
The motion is brought pursuant to rule 51.05 of the Rules of Civil Procedure. This rule provides that "an admission in a pleading may be withdrawn on consent or with leave of the court."
The plaintiff, Darryl Stickel ("Stickel") refused consent and this motion ensued.
The parties agree that the test to be applied on this motion is the three part test in Antipas v. Coroneos, 1988 10348 (ON SC), [1988] O.J. No. 137 (HC) at p. 3, as follows:
The proposed amendment raises a triable issue;
The admission was inadvertent or resulted from wrong instructions; and
The withdrawal will not result in any prejudice that cannot be compensated for in costs.
The parties agree that the proposed amendment raises a triable issue and therefore, I need not address that aspect of the test. The latter two factors, inadvertence and prejudice will be considered.
Inadvertence
Having considered the record and in particular the Dale affidavit and transcripts as noted above, I find that the admission was inadvertent.
As well, rule 26.01 of the Rules provide that the court shall grant leave to amend on such terms as are just unless there is prejudice that cannot be compensated for by costs. In my view, this case is no different than the usual instances where amendments are sought to allow pleadings to conform to the discovery evidence. Lezzaik's discovery evidence is clearly that he was the owner and operator.
Counsel for Stickel submitted that the court ought to disregard Dale's evidence because it is not based on information and belief. This argument, in my view, would apply only to para. 28 of the affidavit, if at all. In my view, inadvertence can be found without regard to para. 28 of the affidavit. There remains other evidence of inadvertence. I accept Dale's evidence as supporting a reasonable explanation for the admission that was made.
In any event, if I am in error in accepting Dale's evidence because it is not based on information and belief, in my view, Dale as the partner responsible for the matter, had final responsibility for the defence. Clearly, Dale has deposed that he had no intent to admit the employment relationship and there is no evidence to impair or negative that intent.
Prejudice
Coventry submits that there is no prejudice occasioned by the withdrawal of the admission. Coventry points to the facts that Lezzaik's continued examination for discovery has not yet been completed and that Coventry's examination has not commenced. It is submitted that Stickel will have every opportunity to canvass the nature of the relationship between Lezzaik and Blue Line/Coventry. I agree. I do find that there is any prejudice to Stickel arising from the withdrawal of the admission.
It was argued by counsel for Stickel that the prejudice that arises relates to the unavailability of insurance to cover damages, if Stickel is successful in his claim. This alleged prejudice arises because Coventry's commercial general liability insurance policy limit of $23 million will potentially be unavailable to Stickel. In my view, the unavailability of the additional insurance limits is not prejudice that is properly relied upon in the context of this motion.
As mentioned above, it was known to counsel for Stickel early on, in 2004 when Lezzaik was first discovered, that Coventry was unlikely a proper party to the action at all. See pp. 48-49 of the Lezzaik discovery. It would appear that some thought was given by counsel for Stickel to the possibility that only Lezzaik's insurance policy would be available.
Also, the prejudice relied upon by Stickel is not prejudice that is occasioned by the admission made and now sought to be withdrawn. There was no evidence as to what if anything Stickel did, or didn't do, that was influenced by the making of the admission.
The decision in Zellers Inc. v. Group Resources Inc., 1995 7141 (ON SC), [1995] O.J. No. 5 (GD) at p. 7 suggests that there must be real prejudice to the plaintiff. There, the court held that in the absence of real prejudice, the court ought not hold a party to a poorly drafted pleading created in inadvertence.
The onus of establishing prejudice, on a balance of probabilities, rests upon Stickel (see 370866 Ontario Ltd. v. Chizy, 1987 4122 (ON SC), [1987] O.J. No. 2244 (HC) at para. 4). Prejudice, or real prejudice, typically arises where a limitation period has expired (see for e.g. Romita v. Shoi, [2010] O.J. No. 5188 (SCJ)). On this motion, no evidence was advanced of any prejudice to Stickel.
There was a further argument advanced by counsel for Stickel. As I understand the argument, it is submitted that Dale's evidence ought to be disregarded because he failed to declare a conflict when he spoke to Coventry about the admission following Dale's discussion with Lezzaik. It is argued that Dale ought to have sought Lezzaik's consent to disclose the matter or waiver of privilege before addressing the issue with Coventry. Stickel therefore argues that Lezzaik's position is potentially prejudiced and therefore that prejudice (i.e. prejudice to Lezzaik) is sufficient to meet this aspect of the test. In my view, this argument cannot prevail for two reasons. First, the prejudice that is relevant must be prejudice to the Stickel. Second, Lezzaik is not opposed to the motion and therefore, this court accepts that Lezzaik does not advance any actual prejudice. It strikes me as unusual that a party to the action could rely on potential prejudice to another party where that other party does not object itself.
Lastly, Stickel on the return of Coventry's motion brought a cross motion to amend the statement of claim to plead that Lezzaik is an employee. The cross motion was consented to by Coventry and an order was signed to this effect. In my view, it does not lie in the mouth of Stickel to seek to amend to plead vicarious liability in the face of the existing admission, now known to be inadvertent and yet refuse to consent to the proposed withdrawal of admission to address the new plea of vicarious liability. In this circumstance, I cannot see that there is any prejudice to Stickel and the issue is properly left to the trial judge.
D. DISCUSSION AND ANALYSIS
[29] Before the court will grant leave for an admission to be withdrawn, the person seeking the withdrawal must: (1) raise a triable issue; (2) provide a reasonable explanation for the admission and for its withdrawal; and (3) establish that the withdrawal will not result in non-compensable prejudice: Antipas v. Coroneos, 1988 10348 (ON SC), [1988] O.J. No. 137 (H.C.J.); Szelazek Investments Ltd. v. Orzech, [1996] O.J. No. 336 (C.A.); 147619 Canada Inc. v. Chartrand, [2006] O.J. No. 1877 (C.A.); 1679753 Ontario Ltd. v. Muskoka Lakes (Township), [2010] O.J. No. 736 (S.C.J.), aff’d 2011 ONSC 1997 (Div. Ct.). All three elements must be established for leave to be granted: BNP Paribas (Canada) v. Donald S. Bartlett Investments Ltd., 2012 ONSC 5604.
[30] I will discuss Dr. Stickel’s arguments and grounds of appeal, but I say at the outset that I am not persuaded that there is any error in the Master’s Reasons and in her approach to the withdrawal of an admission made in a pleading.
[31] Dr. Stickel points to paragraph 13 of the Master’s Reasons to argue that the Master erred by applying rule 26.01 of the Rules of Civil Procedure when the appropriate rule to apply was rule 51.05. There is no merit to this argument. It is manifest that the Master applied rule 51.05; in the circumstances of this case, her reference to rule 26 was apt, especially in circumstances where there was a cross-motion to amend the Statement of Claim.
[32] As noted above, Dr. Stickel argued that the Master erred by relying on evidence that was privileged solicitor-and-client communications and by relying on Mr. Dale’s hearsay evidence explaining why Mr. Polak had made a mistake in drafting the original Statement of Defence.
[33] Although there is a perhaps an aura of a breach of privilege, because Mr. Dale recounts conversations that he had with a client in preparing the client for an examination for discovery, I however, do not see any breach of solicitor-and-client privilege. The disclosure by Mr. Dale is of information that his client had already disclosed at the previous discovery or would shortly have been disclosed at the scheduled discoveries had they proceeded. The information disclosed by Mr. Dale is in its essence factual and non-privileged information. Moreover, even if I am wrong, and privileged information ought not to have been relied on by the Master, in my opinion, the absence of the information would not and ought not to have changed the Master’s decision. Without any possibly privileged information, Mr. Dale’s evidence was sufficient to satisfy the rule 51.05 test and I do not see any reviewable error.
[34] In this regard, that the proposed amendment raised a triable issue was conceded, and, ironically, with that concession, most of the information provided by Mr. Dale, to which Dr. Stickel takes exception, becomes redundant to deciding the motion. Most of the so-called privileged evidence was about whether or not Mr. Lezzaik was an employee, and that is precisely the triable issue element of the Antipas test that was not contested by the parties. What was contested is whether a mistake in understanding or taking instructions had been made by Coventry’s lawyers, and once again there was adequate non-privileged evidence in that regard to satisfy the rule 51.05 test.
[35] I agree with the Master that it was not necessary to have evidence from Mr. Polak about the inadvertence element of the Antipas test. Mr. Dale was the lawyer with carriage and responsibility for the file, and it was he who discovered the conflict in the joint retainer that prompted his firm to get off the record, which, in turn, led to the successor firm bringing a motion to withdraw the admission.
[36] Finally, in my opinion, the Master made no error in her treatment of the prejudice element. Coventry would suffer prejudice by admitting a fact against its interest that was not necessarily a true fact. The main point here is that Coventry’s lawyer inadvertently conceded a triable issue that Coventry wishes to contest.
[37] It remains to be seen whether Dr. Stickel will be able to prove that Mr. Lezzaik is an employee absent the admission, but more to point about prejudice, as explained above, Dr. Stickel does not necessarily need to establish that Mr. Lezzaik is an employee to make out his case against Coventry. Somewhat ironically, it actually remains to be seen whether it was a mistake for Mr. Polak to have drafted the so-called admission because it remains open for a trial judge to decide that Mr. Lezzaik is an employee notwithstanding the withdrawal of the admission and here, I can note that the word “employee” is repeatedly used in the collective agreement between BlueLine and its drivers. In any event, in the circumstances of this case, the Master was correct in holding that Dr. Stickel was not prejudiced by the withdrawal of the admission. Passing over the peculiarity that the matter of employment status became an issue after the fact of the so-called admission, Dr. Stickel is in the same position as he was at the outset in proving his case against Coventry.
[38] Finally, Dr. Stickel correctly submitted that the onus was on Coventry to show that the withdrawal will not result in any prejudice. The onus is on the moving party to show that the opposite party will not be prejudiced, rather than the reverse as is the case under rule 26.01: Kostruba and Sons Inc. v. Pervez, 2011 ONSC 4894 at para. 42; Antipas v. Coroneos, supra at para. 14; Kay v. Caverson, 2010 ONSC 6743 at para. 18 (S.C.J.). However, Dr. Stickel incorrectly submitted that the Master erred by placing the onus on him to prove that he would not be prejudiced by the withdrawal of the admission. While the Master did not express the point eloquently, I perceive no such error in how she applied the law. Coventry met the onus of showing there was no prejudice, but Dr. Stickel did not meet the onus of rebutting the absence of prejudice. That is the normal dynamic of proof in the context of a disputed issue.
[39] I agree with the Master that the unavailability of additional insurance limits is not a prejudice that can arise from the withdrawal of an admission so that an action can be decided based on the truth of the case; Dr. Stickel had no direct right to Mr. Lezzaik’s insurance coverage; prejudice cannot be said to occur if the plaintiff is denied benefits that he or she may have never been entitled to in the first place. Howell-Lillepool v. Smith, 2012 ONSC 4385. And more to the point, as it happens, the insurance coverage is as available as it ever was because Coventry is still a party to the action and still vulnerable to being found liable.
E. CONCLUSION
[40] For the above reasons, the appeal is dismissed.
[41] If the parties cannot agree about the matter of costs, they may make submissions in writing beginning with Coventry’s submissions within 20 days of the release of these Reasons for Decision followed by Dr. Stickel’s submissions within a further 20 days.
Perell, J.
Released: July 20, 2015
COURT FILE NO.: 02-CV-241314CM1
DATE: 20150720
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
DARRYL JOHN STICKEL
Plaintiff/Appellant
– and –
HASSAN LEZZAIK, JOHN DOE #1, JOHN DOE #2, JANE DOE, CGU INSURANCE COMPANY OF CANADA, BLUE LINE TAXI CO. LIMITED, 561100 ONTARIO LTD., 2008632 ONTARIO INC. and COVENTRY CONNECTIONS INC.
Defendants/Respondents
REASONS FOR DECISION
PERELL J.
Released: July 20, 2015