Monk v. Farmers and Muskoka Ins., 2016 ONSC 3488

CITATION: Monk v. Farmers and Muskoka Ins., 2016 ONSC 3488

COURT FILE NO.: CV-11-093

DATE: 20160526

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Diana Lynn Monk,

Plaintiff (Responding party)

– and –

Farmers’ Mutual Insurance Company (Lindsay),

Defendant (Moving party)

David A. Morin, Counsel for the Plaintiff

Martin P. Forget, Counsel, for the Defendant, Farmers Mutual Insurance Company (Lindsay)

– and –

Muskoka Insurance Brokers Ltd.,

Defendant (Moving party)

Demetrios Yiokaris, Counsel for the Defendant, Muskoka Insurance Brokers Ltd.

HEARD: April 25, 2014; June 16, 2014

Supplementary Judgment ON Summary judgment Motions

INTRODUCTION

1The defendants, Farmers’ Mutual Insurance Company (Lindsay) (“Farmers’ Mutual”) and Muskoka Insurance Brokers Ltd. (“Muskoka Insurance”), brought motions for summary judgment, submitting that there is no genuine issue requiring a trial in this proceeding and asking for an order that the action be dismissed.

2The action arose out of an insurance coverage claim for property damage to a log home owned by the plaintiff, Diana Lynn Monk, in the town of Bracebridge, Ontario. The damage was allegedly caused by the negligent workmanship of Pleasantview Log Restoration Systems (“Pleasantview”), a contractor retained by Ms. Monk to perform restoration work on the premises.

3Ms. Monk’s insurance policy (the “Policy”) was a standard homeowner’s policy issued by her insurer, Farmers’ Mutual. The policy was arranged for Ms. Monk by her broker, Muskoka Insurance.

4Ms. Monk commenced this action on November 14, 2011, almost three years after she first discovered damage to her property.

5The plaintiff’s claim against Farmers’ Mutual was based on the alleged breach of her contract of insurance with Farmers’ Mutual. Her claim against Muskoka Insurance is based on an alleged breach of Muskoka Insurance’s contractual and fiduciary duty to her, and its failure to advise her in a timely way that she had a valid claim against Farmers’.

ISSUES

6The basis for the summary judgment motions was:

a) Ms. Monk’s claim constituted costs of repairing faulty workmanship caused by Pleasantview, which is specifically excluded by the policy (the “coverage issue”).

b) The action was commenced more than two years after discovery of the claim and is therefore out of time (the “limitation period/fiduciary duty issue”).

DECISION ON SUMMARY JUDGMENT MOTION

7The court released its decision on June 27, 2014, granting summary judgment in favour of the defendants. The basis of the decision was that the damage was excluded by the policy (the “coverage issue”)

8In view of this finding, the court found that it was not necessary to determine the limitation period/fiduciary duty issue.

RULING OF COURT OF APPEAL

9The plaintiff successfully appealed the decision of the motion judge. The Court of Appeal made an affirmative finding that “resulting damage” to the plaintiff’s property was covered by the plaintiff’s insurance policy with Farmers’ Mutual (the coverage issue).

10The Court of Appeal returned the question whether the Plaintiffs’ action was barred by reason of the Limitations Act to the motion judge for determination.

THE APPLICABLE LAW

The Test on Motion for Summary Judgment

11The motions before me were brought under Rule 20.04(2) of the Rules of Civil Procedure, which provides, inter alia, that a court shall grant summary judgment if satisfied that there is no genuine issue requiring a trial.

12In Hryniak v. Mauldin (2014) SCC 7, the Supreme Court of Canada said the following:

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 an proportionate, more expeditious and less expensive means to achieve a just result.

13In deciding whether there is a genuine issue for trial, I have the discretion to use enhanced fact-finding powers, unless it is in the interests of justice for such powers to be exercised only at a trial.

ANALYSIS OF SECOND ISSUE

14In my view, the limitations period/fiduciary duty issue raises significant credibility issues. The plaintiff relies, at least in part, on an assertion that the plaintiff contacted, sought assistance and made inquiries with Marcia Bissell of Muskoka Insurance within the two year limitation period regarding the faulty work and /or whether it was insured (the “disputed conversations”).

15Ms. Bissell denies that these conversations took place and alleges that the first time anyone from Muskoka Insurance spoke to her about the faulty work was well after the expiry of the two year limitation period.

16In my view, it is not appropriate for me to make a finding of fact with respect to these conversations in the context of a motion for summary judgment. There are credibility issues involved here which require a trial in order to reach a just and fair determination of this issue.

DECISION

17For the above reasons I am dismissing the motion for summary judgment (based on the limitation period/fiduciary duty argument).

18This claim is to be scheduled to be spoken to at the assignment court scheduled for June 20, 2016 at 9 a.m., to set a date for trial. Counsel are also directed to schedule a trial management conference with me (which can be conducted by teleconference given the fact that two of the counsel are from Toronto).

19Counsel should note that in addition to the evidence which will be called at trial in relation to the limitation period/fiduciary duty issue, I will also be requesting submissions with respect to the issue of to what damage is properly classified as “resulting damage”.

E.J. Koke (SCJ)