ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CV-14-499845
DATE: 20150727

BETWEEN:

KRIS RANA
Plaintiff

– and –

UNIFUND ASSURANCE COMPANY
Defendant

Kris Rana, In Person

Evelyn Ten Cate, for the Defendant

HEARD: June 26, 2015

Sanderson j.

Introduction

[1] The Defendant insurance company Unifund Assurance Company, “Unifund”, moves for an Order dismissing the Plaintiff’s action for failure to pay costs awards made against her in interlocutory proceedings to date, or in the alternative, for an Order staying her action against Unifund, pending payment of the costs awards, together with interest, failing which the Defendant may, six months from the date of the order, move to dismiss her action.

[2] The defendant Unifund also seeks an Order prohibiting the Plaintiff from making any further motions in this proceeding without leave, on the basis that the Plaintiff has abused the process of this Court by bringing a multiplicity of frivolous and /or vexatious motions and by failing to obey Orders of this Court.

[3] The self-represented Plaintiff, Rana, hereafter “Rana” was involved in a motor vehicle accident on August 13, 2011 “the accident”.

[4] The essence of her present complaint against Unifund is that she had a Policy of Motor Vehicle Insurance [M786AM6399] including liability insurance with Unifund with limits of $1 million, “the policy”, that was in force on the day of the accident, but that Unifund has failed to honour its obligations under that policy.

[5] Rana has been sued for damages totaling $1,000,000 in Court file CV-13-3463-00 in Pimentel v Kris Rana and Axa Pacific Insurance Company, now known as Intact “the Pimentel action”, by plaintiffs Fablo Pimentel and Jorge Ponte [the other driver involved in the accident and the owner of the car driven by Pimentel].

[6] Unifund has taken an off coverage position, and apparently has not provided her with a defence in that action.

[7] Rana asserts that as a result of Unifund’s failure to provide her with the insurance protection for which she contracted and paid, she is facing personal exposure in the amount of any judgment rendered against her a result of the accident.

[8] Rana has received notice from Intact, the OPCF 44 R insurer of the Pimentel plaintiffs that if it is required to make any payment to them in the Pimentel action [under its OPCF 44R coverage] it will seek indemnity from Rana personally.

[9] Counsel for Unifund conceded before me that there was a policy of insurance [M786AM6399] between Rana and Unifund in force at the time of the accident. Counsel for Unifund acknowledged that Rana had comprehensive coverage under that policy, but took the position before me [as it has taken in the Pimentel action] that at the time of the accident, Rana had no liability coverage under that policy.

[10] Rana has apparently never moved for an Order requiring Unifund to provide her with a defence of the Pimentel action under that policy of insurance.

[11] Unifund has never moved for summary judgment against Rana in this action.

[12] Counsel for Unifund acknowledged during the argument of this motion before me that there is an issue requiring a trial with respect to whether Rana had liability coverage under the policy at the time of the accident.

[13] I have reviewed Policy Number M786AM 6399 in the name of Kris Rana re 1996 Hyundai Accent 4D KMHVF21N5TU281733 for the Policy Period June 1 2011-June 1 2012 under the heading LIABILITY showing a “liability limit” of $1,000,000 and a premium of $726 included in Rana’s motion materials. I have appended a copy hereto as Schedule 1 to these Reasons.

History of These Proceedings

[14] Rana initially brought an action against Unifund in the Small Claims Court, action SC-12-1901-00 under policy M86AM6399. Rana had been charged and convicted of driving while intoxicated. Her driver’s license had been suspended for a period of time. After her license had been reinstated, she had requested that Unifund reinstate her insurance coverage. Her action in Small Claims Court concerned Unifund’s refusal to do what Rana alleged it had promised to do, namely reinstate her automobile insurance. Rana alleged that on the strength of representations made by Unifund that her insurance would be reinstated, she had incurred some expenses including the expense of obtaining a drive clean test. However, Unifund had refused to reinstate her automobile insurance and she sued, inter alia, to recover those expenses.

[15] In its Defence in the Small Claims Court Action, Unifund pleaded that as of July 29, 2009, automobile coverage had been removed from her policy with the exception of comprehensive coverage. It attached a copy of a certificate of Automobile Insurance issued by Unifund for the period dated July 29, 2009 to June 1, 2010 [not the insurance in force on the day of the accident].

[16] Rana alleged that although she had temporarily suspended her liability insurance as of July 29, 2009, by August 13, 2011, the date of the accident, Unifund had reinstated her liability insurance and had sent her a Certificate of Insurance (Schedule 1 to these Reasons) confirming coverage.

[17] Even though Unifund had pleaded in the Small Claims Court Action that there was no liability insurance in force at the time of the accident, that was not a critical issue in the Small Claims Court action as originally framed.

[18] Liability insurance was not the focus of that action because Rana had not yet been sued in the Pimentel action.

[19] The trial in the Small Claims Court action proceeded in August of 2013 over most of a day. On August 16, 2013, the trial judge Caplan DJ declared a mistrial after Rana continually referred to offers of settlement. He ordered that a new trial be scheduled before another deputy judge.

[20] The trial in the Small Claims Court never resumed, because on August 16, 2013 Rana was served with a Statement of Claim in the Pimentel action.

[21] It was only after Rana received that Statement of Claim in August of 2013 that the issue of whether her policy as of the date of the accident, August 13, 2011 included liability insurance became critical.

[22] At that point, what in Rana’s mind had been a Small Claims matter against Unifund took on much greater significance.

November 2013

[23] In November of 2013, Rana moved in the Superior Court to take her case “to a higher level…due to extra costs incurring due to accident that happened while the plaintiff was insured by Unifund and is being sued and believes the defendant now owes an amount higher than the Small Claims limit and needs to recover the full amount in the Superior Court of Justice..”

[24] On November 14, 2013, her motion came on for hearing before Firestone J. However, he adjourned Rana’s motion to November 25, 2013, to afford Unifund time to prepare materials to respond to Rana’s motion.

[25] Firestone J wrote: “the plaintiff may file a copy of her Small Claim Court action which is not in her motion record.”

[26] It appears to me that Firestone J was probably referring to the plaintiff being at liberty to file her Small Claims Court pleading with her motion materials. However, she apparently understood Firestone J’s endorsement to mean that she could file her Amended Small Claims Court Statement of Claim in the Superior Court.

[27] Firestone J reserved the costs of the motion to the motion judge hearing the substantive motion.

[28] Rana attended at the Superior Court office on November 23, 2013 and filed Statement of Claim Amended from Small Claims Court. It was given a court file number CV-13-494964-0000.

[29] Rana submitted before me that the court office should not have assigned a Superior Court court file number to her action against Unifund until after her motion to move her action from the Small Claims Court to the Superior Court had been heard and granted. At that point in time, she had not yet been granted an Order allowing her to transfer her action against Unifund to the Superior Court.

January 2014

[30] On January 23, 2014, Kiteley J heard Rana’s motion “to take this case to a higher level”, i.e. to transfer her amended Small Claims Court action to the Superior Court.

[31] At the hearing of Rana’s motion before Kiteley J, counsel for Unifund advised the Court that she did not oppose the transfer of the Plaintiff’s action to the Superior Court. However, she said she did object to reference to settlement discussions in that document.

[32] Kiteley J wrote at paragraph 6 of her Endorsement: “it appears that the plaintiff attended at the filing office of the Superior Court and filed a document Statement of Claim Amended from Small Claims Court. CV-13-494954-0000 was assigned to it. In that claim, the Plaintiff seeks multimillion dollar damages for unfair business practice, unconscionable misrepresentative [sic] misleading misrepresentation, and did not act in good faith…”

[33] Kiteley J noted that that the Statement of Claim that the Plaintiff had filed on November 23 had been served on the Defendant. By notice dated January 13, 2014, the Registrar had informed the Plaintiff that an Order had been made, dismissing Rana’s action as abandoned.

[34] Kiteley J wrote at para 10 of her endorsement: “Given the confusion that has already been created [referring to the filing of the Statement of Claim Amended from Small Claims Court], the logical outcome is to simply have the plaintiff issue a fresh claim in the Superior Court. If an order is made transferring the existing action, there will be challenges in the court office such as whether to assign a fresh number or use CV-13-4994954-0000 for which the Registrar has already issued an order dismissing the action.”

[35] Therefore, Kiteley J ordered Rana to file a Fresh Statement of Claim including the allegations that she had included in her Small Claims Court action and those related to the accident.

[36] Kiteley J noted that the Plaintiff had requested costs of $2500 for all the various attendances and the confusion and delay associated with the transfer of her case to the Superior Court, given that at the hearing, the defendant had not opposed the transfer. However, she declined to award costs to Rana, including the costs of her appearance before Firestone J.

[37] After Kiteley J released her endorsement, Rana was unhappy for several reasons, including her comment that the confusion had originated with Rana. She took the position that Kiteley J, in dealing with costs, should have considered the correspondence that Rana alleged proved that counsel for Unifund had agreed to the transfer of her Small Claims Court action to the Superior Court. Rana had thought that Unifund had consented to the relief she had been seeking, and that the only issue Unifund had been contesting at the hearing before Kiteley J was whether Unifund should be required to pay costs to Rana.

[38] Rana took the position that in making the costs order that she had, Kiteley J had been biased against her as a self-represented litigant. She had already filed a new pleading. She was “losing the benefit of all of her hard work.”

[39] She therefore appealed to the Ontario Court of Appeal.

[40] In her Notice of Appeal she wrote: the respondent did consent for the motion to transfer the file from Small Claims Court. Only disagreement between the parties was whether the defendant should pay the plaintiff’s costs. Whereas, at the hearing submission the Respondent not agreed should pay [Rana’s] costs, but on the other hand advised the motion judge that the appellant is only Ontario Disability Support Program so the Court will be concluded.”

[41] In her Amended Notice of Appeal, Rana suggested that Kiteley J had overlooked the Registrar’s error in opening up file CV—13-494964, without having been ordered to do so by a judge. She wrote: “The Appellant [Rana] was explaining about the Respondent’s [Unifund’s] unreasonable hindrance and abuse of process which causes her financially, to run to the Register office several times how she reproduced and duplicate whole her motion material and to file documents repeatedly at the court office.” At para 12 she wrote: “…The judge wiped out the entire Appellant’s Small Claim’s Court hard work…”

[42] On March 7, 2014, Rana complied with the Order of Kiteley J that she should issue a Fresh Statement of Claim. A court file number CV-14-499845 was assigned to her action against Unifund.

[43] Rana submitted that as a disabled person, she needs the use of her car. While she did temporarily discontinue her liability insurance when knew she would not be using her car, [i.e. when she knew she would be undergoing surgery and when she would be out of the country], she said she had asked for her insurance to be reinstated as soon as she needed to use her car again, and that she had understood that that had been done.

[44] In her Fresh Statement of Claim, Rana pleaded that although she did not have liability coverage for a period starting in July 2009 when she was not driving her car because she had surgery and was out of Canada, she had requested reinstatement of mandatory liability coverage.

[45] Rana pleaded at paragraph 16, that on June 10, 2010 she had received a renewal policy from the Defendant showing clearly that she had mandatory liability coverage with limits of $1,000,000 on it. The premium was $723. In the materials filed by the Plaintiff on this motion, Rana included at p 83 a photocopy of a Certificate of Automobile Insurance for the period June 1, 2010 - June 1, 2011.

[46] In her motion materials Rana included at p 90, a Certificate of Insurance from June 1, 2011 - June 1, 2012. I have already referred to that Certificate of Insurance Policy M786AM6399 [Schedule 1 to these Reasons], admittedly in force on the day of the accident.

[47] Counsel for the Defendant submitted before me that that Certificates of Insurance must be read together with the pink slips [included at p 92 of Rana’s motion materials] showing instead of the name of the insured, the vehicle description, the effective date or policy number only xxxx’s.

[48] Counsel for the Defendants submitted that from the premium shown of $723, the plaintiff Rana should have known that she had no liability coverage.

[49] In her Fresh Statement of Claim in Action CV 14-499845, Rana pleaded that on December 9, 2010, after the Ministry sent her a letter that included the following: we are unable to confirm your vehicle is insured,” she sent a copy of that letter to insurance agent Redfern, who in turn responded, by sending her a copy of her policy.

[50] Rana said she understood that in Ontario, liability insurance is mandatory. Vehicles in Ontario cannot be driven without it. Had she not had liability insurance, her license plate would not have been renewed. On April 3, 2011, her license plate was renewed.

[51] Rana pleaded that on May 24, 2011 she had been involved in a minor accident. The police had asked her for proof of insurance. When she had been unable to produce proof of insurance, she had been charged with failing to have proof of automobile insurance. She had immediately called Redfern. After Redfern had sent her a copy of her Certificate of Insurance, she had submitted it to the Ministry of Transportation. The prosecutor’s office had confirmed in writing on October 24, 2014 that the charge against her relating to failing to produce proof of auto insurance had been withdrawn.

[52] Rana said, and her materials filed on the motion confirmed, that on June 1, 2011, she had received a renewal Certificate of Insurance Policy M786AM6399 [appended as Schedule 1 to these Reasons.]

[53] In its Statement of Defence in CV-14-499845, at paragraph 3, counsel for Unifund pleaded as follows: the policy documents clearly showed no liability and no collision coverage.

[54] Unifund pleaded at paragraph 3: The Defendant specifically denies that the Plaintiff is entitled to any coverage for compensation that may be owing, or may be owed in the future to a third party as a result of a motor vehicle accident on August 13, 2011 as pleaded in Pimentel v Kris Rana and Axa Pacific Insurance Company now known as Intact (Court File CV-13-3463-00). Unifund pleaded that at no time after July 29, 2010, did the Plaintiff’s policy of insurance ever include third party liability or collision coverage.

[55] The Defendant Unifund also pleaded that Rana’s allegations against it were frivolous, vexatious and an abuse of process of this Court.

September 2014

[56] On September 26, 2014 the Ontario Court of Appeal dismissed Rana’s appeal from the Order of Kiteley J, holding that Kiteley J did have jurisdiction to order delivery of a Fresh Statement of Claim., that there was nothing in the record to indicate any apprehension of bias, and upholding her Order of no costs.

[57] The Court of Appeal fixed the costs of the appeal at $5000 inclusive of disbursements and applicable taxes.

[58] The Plaintiff then sought Leave to Appeal to the Supreme Court of Canada.

November 2014

[59] On November 24, 2014, the parites attended a mandatory mediation in this action.

January 2015

[60] On January 21, 2015, Rana moved for an order to set this action down for trial and to obtain trial and pretrial dates. Unifund brought a cross motion for an order that she attend at an Examination for Discovery.

[61] In her Notice of Motion and response to Unifund’s cross motion, Rana submitted that she should not be ordered to submit to discovery by Unifund because “the relevant information had already been exchanged in the Small Claims Court action”.

[62] Rana further submitted that on June 5 2014, Unifund had orally consented to no discovery and had not deviated from that position until January of 2015.

[63] Rana submitted that effective January 10, 2010, Unifund had been required to agree to a written discovery plan within 60 days of the Reply and Defence to Counterclaim, if any. Between June 2014 and February 2015 Unifund had not mentioned a discovery or a discovery plan.

[64] Rana wrote: “These submitted trial records [from the Small Claims Court] documents are more than 2000 pages, concerning both parties’ materials. To producing same documents, disbursements costs, serving the respondent lawyer office (located in London Ontario) and filing with the Superior Court of Justice, economically, does not make much sense. It is dealt with, appropriate, time consuming, and very expensive costs for both parties.”

[65] The plaintiff also wrote the following: “Additionally, the action at the Superior Court-Fabio Pimental v Kris Rana and Intact Insurance Company matters are impede. This action started in the year 2012 and looming for the resolution since then.”

February 2015

[66] On the return of the Plaintiff’s motion to set the action down and for trial and pretrial dates on February 10, 2015, Spence J. dismissed her motion, granted Unifund’s cross motion compelling a discovery and ordered costs against Rana in the amount of $3500.

[67] Spence J. wrote:

Ms. Rana seeks to set this matter down for trial and to have dates fixed for the trial and pretrial…The defendant does not consent, because there has not yet been any examination for discovery of Ms. Rana, and if the Defendant were to consent to the action being placed on the trial list, the Defendant’s right under R31.03to examine Ms. Rana for discovery and the Defendant’s ability to??illegible by motion or form of discovery would be lost, by reason of Rule 48.04.The Plaintiff has refused and still refuses to agree to an Examination for Discovery, because she says, this matter is now ready for trial by reason of proceedings that have already taken place in the Small Claims Court. Whether or not this matter is ready for trial in some sense, it is not ready for trial in respect of the defendant’s right to examine the Plaintiff for discovery, and possibly other steps which the Defendant may be entitled to take under the Rules. For this reason, the present motion is premature and it is therefore dismissed.

[68] Spence J. continued:

The Defendant moves for an order compelling the plaintiff to attend at an Examination for Discovery. The defendant is entitled to examine the plaintiff for discovery under Rule 31.03.No reason has been given why the Defendant should be considered to have lost that right. It is expeditious to deal with this cross motion of the Defendant now, rather than leaving the matter to be raised by way of a new motion, which would only serve to increase the cost of dealing with the matter. Accordingly, Order to go, compelling the Plaintiff to attend at an Examination for Discovery on April 15, at Network North Reporting …Counsel for the Defendant may take out the Order consistent with this endorsement without the approval as to form and content of the plaintiff…Costs to the Defendant of $3500 all inclusive, payable by the Plaintiff within 45 days.

[69] The Plaintiff appealed the order of Spence J. to the Divisional Court, asking only that the $3500 costs order be set aside, and that the plaintiff and the defendant each be held responsible for their own costs.

[70] In her Notice of Appeal, the Plaintiff wrote at paragraph 18: “The Plaintiff do not want this action hindered years and years because the original action started on January 2012 and action needed to justify pragmatically and that is the reason the Plaintiff is now seeking only the motion Judge Spence J ordered for the costs to the Defendant of $3500…to be set aside in this Honourable Appeal Court.”

[71] The insurer Unifund brought a motion to quash the Plaintiff’s appeal for failure to obtain leave [returnable on June 17, 2015].

March 2015

[72] On March 5, 2015, the Supreme Court of Canada dismissed Rana’s motion for Leave to Appeal from the Order of the Court of Appeal.

April 2015

[73] The discovery of Rana took place on April 15, 2015.

May 2015

[74] On May 4, 2015, after Rana had been discovered, counsel for Unifund wrote to the Plaintiff seeking copies of certain documentation mentioned at the discovery. She continued: “Additionally, please be advised we are not agreeable to setting pretrial and trial dates in this matter, as you have not paid the costs awards against you, and you have not yet fulfilled your undertakings.”

[75] On May 7, 2015, the plaintiff responded as follows:…”If those documents are urgent, then please send return courier with pre-paid postage and the Plaintiff will be sending to you…this action is matured, but the defendant was not agreeable to setting pretrial and trial dates so the Plaintiff enforced to bring a motion and set a date for the motion hearing on June 9 2015. The requisition form is attached.”

June 2015

[76] As a result of Unifund’s refusal to agree to a trial date, Rana prepared and served on Unifund a motion returnable June 9, 2015, seeing an order setting this matter down for trial and seeking pretrial and trial dates.

[77] On June 1, 2015, Counsel for Unifund issued a Notice of Cross Motion returnable June 26, 2015.

[78] On June 9, 2015, Chapnik J. heard Rana’s motion, and ordered that her action be set down for a ten day trial commencing January 4, 2016 and for a pretrial to be held on November 16, 2015.

[79] Chapnik J. ordered that the costs of the motion before her were to be determined by the judge hearing the cross motion on June 26, 2015.

[80] On June 17, 2015 Perell J ordered that the plaintiff be granted leave to extend the time to appeal the Order of Spence J, and then he dismissed Rana’s motion for leave to appeal. [The defendant’s motion to quash therefore became moot.]

The Motion Before Me

[81] Shortly before I heard Unifund’s motion to dismiss Rana’s action on June 26, 2015, counsel for Unifund served supplementary motion materials, mentioning additional unpaid costs awards that had been made against Rana since service of its Notice of Motion, including the June 16, 2015 Order of the Supreme Court of Canada for costs of $1646.85 and the Order of Perell J dated June 17, 2015, awarding costs of $3500 all-inclusive, in any event of the cause.

[82] Counsel for Unifund included the following submission in its factum before me: To date, the plaintiff has failed to comply with four outstanding costs awards, the first made by the Court of Appeal for Ontario on September 26, 2014 in the amount of $5000, the second of the Honourable Mr. Justice Spence on February 10, 2015 for $3500 payable within 45 days; the third made by the Supreme Court of Canada in the amount of $1646.85 and the fourth made by Justice Perell in the amount of $3500 payable in any event of the cause.

[83] I note that three of the orders were made on appeals of interlocutory orders. As of June 1, 2015, the date the cross motion was prepared, the costs order of Spence J. was under appeal. I note that Perell J. in the Divisional Court ordered that the costs of Rana’s motion to appeal the Order of Spence J. were not payable until “after the trial of the action”

[84] Counsel for Unifund submitted that although the costs Orders, apart from the Order of Spence J., which specified payment in 45 days, did not specify that the costs were to be paid forthwith, Rule 57.03(1) provides that for all contested motions, the court is required to make costs payable within 30 days unless satisfied that a different order would be more just. If the judge fails to specify when costs are payable, the presumption is that the costs are payable within 30 days. Since the Orders of the Court of Appeal and the Supreme Court of Canada are silent on timing, they are payable within 30 days.

[85] Counsel for the Defendant did not mention Champagne v Kapaskasing Plumbing (1996) 1996 8204 (ON SC), 30 OR (3d) 403, a decision of Poupore J of this Court, holding that failure to pay costs of an appeal from an interlocutory order does not trigger Rule 57.03(2) under which a court may dismiss or stay a party’s proceeding. Rule 57.03(2) is confined to costs of motions.

[86] Counsel for Unifund submitted that the policy behind Rule 57.03 is to bring home to litigants the expense of motions and so should be departed from only in special circumstances.

Considerations in Deciding this Motion

[87] At the moment, I must weigh the conflicting policy issues.

[88] In deciding the outcome of this motion, I have had regard to a number of competing factors.

[89] I have considered that in the materials filed by Unifund, there was much reference to intemperate statements made by the Plaintiff Rana in her materials in this action about “corruption” and “bias” of members of the judiciary, including the Chief Justice of Canada, several members of the Supreme Court of Canada, the Court of Appeal and the Superior Court.

[90] It is an understatement to say that in the conduct of this litigation, the plaintiff Rana has made statements and taken steps that have been counterproductive in obtaining the relief she has been seeking.

[91] While I vehemently disagree with Rana’s comments, I have tried to understand the context in which she made them and not to be overly affected by them. Rather, I have tried to objectively weigh the competing factors.

[92] I have considered that once she was sued, [because she believed she was in fact insured by Unifund for $1,000,000 liability coverage], from Rana’s perspective, Unifund’s refusal to provide her with a defence in the Pimentel action placed her in great jeopardy. Rana pleaded that Unifund was acting in bad faith.

[93] While she may have misunderstood Firestone J’s advice about the filing of the Small Claims Court claim in the Superior Court, and while she may have been mistaken in filing her Amended Claim in the manner that she did, I accept that Rana did what she thought he had recommended.

[94] It is understandable that Rana who has limited income [as a recipient of ODSP (Ontario Disability Support Program)] wanted to advance her claim as inexpensively and with as little duplication as possible. She wanted to be able to take as much advantage as she could of the work she had already done. She did not want to have to repay expenses she had already incurred, to re-file documents she had already filed.

[95] She said that she thought counsel for Unifund had agreed to a transfer of her Small Claims Court action as amended to the Superior Court. She said that she thought that the only matter remaining to be resolved before Kiteley J was whether Unifund would be required to pay her costs, including her costs of the motion before Firestone J.

[96] Although I am of the view, as was the Court of Appeal, that Kiteley J.’s reasoning was correct, in Rana’s mind, Kiteley J. had not only required her to start a completely new action that would require her to duplicate actions she had already taken, but, therefore, also denied her her costs. She thought she had been treated differently with respect to costs than other litigants because she had been self- represented. That was the original basis of her bias allegations.

[97] From her perspective, the costs award of the Court of Appeal was objectionable, given that her appeal to the Court of Appeal had been motivated out of a concern to minimize her expenses by reusing her previous documentation and her concern that she should have received her costs.

[98] Rana wanted to get on quickly with her action against Unifund. The Pimentel action against her was proceeding, Unifund having taken an off coverage position in that lawsuit. She had been advised by the insurer of the Pimentel plaintiffs under an OPCF 44R endorsement, that it would be seeking indemnity from her personally, if it was ordered to pay any damages in that action.

[99] Rana thought that the real issue in her litigation with Unifund was whether Unifund owed her any coverage. In the Small Claims Court action she had already provided Unifund with all information and documents that she had considered to be relevant. She thought that Unifund had earlier agreed to waive its discovery rights/ that further examinations for discovery would be unnecessary It was not until many months had passed, a mediation had already been held and she had tried to set the matter down for trial that the insurer had reversed its earlier position and demanded a discovery. She believed the insurer had been trying to delay or avoid the trial.

[100] After Spence J. ordered her to attend a discovery, she attended. She did not appeal Spence J’s substantive order, only his costs award.

[101] In her mind, Unifund should have provided her with coverage in the Pimentel action. Unifund is the one that has been abusing the process of this Court. She has just been trying to get her action to trial. Unifund has delayed and opposed her attempts to get to trial at every turn.

[102] Meanwhile, the Pimentel action has been proceeding.

[103] After she attended for discovery as ordered, when she tried again to set this action down for trial, Unifund did not cooperate, for a new reason. Unifund claimed that she should not be able to get a trial date because she had not complied with previous costs orders.

[104] Nevertheless, over Unifund’s objection, Chapnik J. on the return of her motion on June 9, 2015, set an early trial date and a pretrial date.

[105] Unifund had served a cross motion on June 1, 2015 returnable June 26, 2015, that if successful, would undo Chapnik J.’s June 9, 2015 order. Unifund had gone further, seeking to have her action altogether dismissed. Unifund’s counsel had also asked that this Court make an order that Rana should not be allowed to take any further steps in her action against it without further order of this Court because Unifund had contended that Rana’s actions constituted an abuse of process of this Court.

Conclusion

[106] As I noted already, I have found Rana’s accusations and intemperate statements about the judiciary and our justice system to be very offensive and unfounded.

[107] At the same time, her obvious frustration is understandable.

[108] I am not in any position here [nor would it be appropriate for me] to decide here whether Rana did have valid liability insurance with Unifund as of August 13, 2011, on the day of the accident. That determination must be made on a full record after a trial.

[109] I can say, however, based on the fact that Unifund did not bring a motion for summary judgment and a statement made to me by its counsel that Unifund acknowledges that Rana has raised a genuine issue requiring a trial as to whether she had Liability insurance on the date of the accident. It is possible that Unifund may be held to have provided liability coverage under Policy M786AM6399 to Rana as at the day of the accident.

[110] I am of the view that a court could find the Certificate of Insurance Policy M786AM6399 [Schedule 1 to these Reasons] to be indicative that Unifund did provide Rana with liability insurance as of August 13, 2011.

[111] On a motion against an insurer for a declaration that that insurer has a duty to defend, it is not necessary to prove that the obligation to indemnify will in fact arise before the duty to defend will be triggered; the mere possibility that a claim may succeed within the policy will suffice.

[112] In Nichols v American Home Insurance 1990 144 (SCC), [1990] 1 SCR 801 and in Cummings v Budget Car Rentals 1996 Can LII 1629 ONCA insureds were said to be entitled to a defence, if, based on the allegations in the Statement of Claim, it was arguable or possible that the insured might be found to have coverage, if there was a theory beyond mere speculation to support the insured’s allegations re coverage.

[113] Therefore, if the Plaintiff had brought a motion in the Pimentel action to compel Unifund to defend the Pimentel action, it is possible that she would have been successful.

[114] Again, that matter is not before me here.

[115] Apart from the pleadings, the references to the Pimentel action in the materials filed, and Rana’s statement that the Pimentel action CV-13-3463-00 is proceeding, I was given no details on the present status of the Pimentel action.

[116] I am assuming, on the information that has been provided, that the Pimentel action is getting closer to trial.

[117] I have concerns about the trial of either this action or the trial of the Pimentel action proceeding without Rana being represented by counsel.

[118] Ideally, she would be represented by a lawyer who would guide her on the appropriate actions to be taken in the face of her insurer’s denial of insurance coverage.

[119] Ideally, before the Pimentel action comes to trial, there would be a determination as to whether Unifund owes her a duty under Policy M786AM6399 to defend the Pimentel action on her behalf.

[120] Ideally, issues concerning Rana having the duty to defend and to indemnify in respect of the accident would be determined with the assistance of a lawyer,

[121] If it were to be determined that Unifund owes Rana a duty to defend in the Pimentel action, there would be less urgency for the trial of this matter to proceed.

[122] Similarly, if it were determined that Unifund has no duty to defend, I would be inclined to give greater weight to the policy reasons for enforcing interlocutory costs orders.

[123] In all of the circumstances here, I am of the view, in light of the facts that no defence is being provided to Rana in the Pimentel action and that that action is going forward, that fairness requires that the issue of coverage be determined in this action as soon as possible.

[124] In my view, this consideration trumps the importance of bringing home to litigants the expense of motions at this time.

[125] While this is the primary consideration, I have also considered that costs from appeal of interlocutory orders do not trigger Rule 57.03(2) and that Perell J.’s costs order [made in Divisional Court on the appeal from an interlocutory order] did not take effect until after the trial.

[126] Unifund’s motion is therefore dismissed without prejudice to bring it back on if the coverage issues have already been determined elsewhere. If not, they should be determined in this action as soon as possible.

[127] Counsel for Unifund submitted that this Court should also make an order that Rana should not be allowed to take any further steps in this action without leave because she has been overly vexatious and because her actions have constituted an abuse of process of this Court.

[128] I have scrutinized that allegation and have reviewed Rana’s actions in this litigation with care.

[129] Again, without commenting on the substantive merits of Rana’s allegations, it appears that her initial choice of the Small Claims Court as her forum was reasonable at the time.

[130] While some of her actions have been counterproductive, she has consistently endeavored to get this action on for trial, and to have the coverage issues determined as soon as possible.

[131] By making these comments, I do not want to be taken as in any way agreeing with her actions, for instance, in appealing the order of the Court of Appeal to the Supreme Court of Canada, nor do I want to be taken as disagreeing with any of the judicial Orders made to date in this action.

[132] In considering whether her actions have constituted an abuse of process, I have merely attempted to set out here what I understand are Rana’s perceptions and motivations for proceeding as she has.

[133] While some of her actions and statements may have been misguided, and would likely have been avoided had she been represented by counsel, I do not think, when viewed in context, that they have amounted to an abuse of process sufficient to warrant the order in favour of Unifund that Unifund is seeking [i.e. to prevent Rana from taking any further steps to pursue her action against Unifund without leave].

[134] Unifund’s motion is dismissed. The plaintiffs pretrial should proceed on November 16, 2015 and the trial on January 4, 2016, as already ordered by Chapnik J.

[135] This Order is being made without prejudice to Unifund’s right to renew this motion once the duty to defend and indemnity issues have been determined in the Pimentel action.

[136] As Rana has been successful in defending this motion, I award her the costs of this motion and of the motion before Chapnik J., fixed at $3500 all inclusive.

M.A. Sanderson J.

Released: July 27, 2015

COURT FILE NO.: CV-14-499845
DATE: 20150727

ONTARIO
SUPERIOR COURT OF JUSTICE

BETWEEN:

KRIS RANA
Plaintiff

– and –

UNIFUND ASSURANCE COMPANY
Defendant

REASONS FOR JUDGMENT

M.A. Sanderson J.

Released: July 27, 2015