Court File and Parties
Court File No.: CV-12-452889 Date: 2016-09-29 Ontario Superior Court of Justice
Between: Lourdes Prabaharan (Boniface), Plaintiff – and – RBC General Insurance Company, Defendant
Counsel: David S. Wilson, for the Plaintiff Anthony O’Brien, for the Defendant
Heard: July 26, 2016
Before: M. D. Faieta J.
Reasons for Decision
Introduction
[1] The Defendant moves for leave to bring a motion for summary judgment pursuant to Rule 48.04 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194.
Background
[2] The Plaintiff brings this personal injury action for damages suffered as a result of a collision with an unidentified automobile. The Plaintiff claims $500,000 in general damages and $500,000 in special damages.
[3] At the time of the collision, the Plaintiff was insured under a standard automobile policy issued by the Defendant.
[4] Under this policy, the limit of coverage for claims in relation to damages caused by an unidentified automobile is $200,000.
[5] Optional coverage in the form of policy endorsement Ontario Policy Change Form 44R – Family Protection Coverage (“OPCF-44R”) was purchased by the insured in this case. OPCF-44R allows for the full limits of the policy, $1 million in this case, to be available to the Plaintiff if the claim comes within its terms.
[6] Section 3 of OPCF-44R provides:
[T]he insurer shall indemnify an eligible claimant for the amount that he or she is legally entitled to recover from an inadequately insured motorist as compensatory damages in respect of bodily injury to or death of an insured person arising directly or indirectly from the use or operation of an automobile. [Emphasis added.]
[7] Section 1.5 of OPCF-44R states that an “inadequately insured motorist” means:
(b) the driver or owner of an uninsured automobile or unidentified automobile as defined in Section 5, “Uninsured Automobile Coverage” of the Policy.
PROVIDED THAT…
(C) where an eligible claimant alleges that both the owner and driver of an automobile referred to in clause 1.5(b) cannot be determined, the eligible claimant’s own evidence of the involvement of such automobile must be corroborated by other material evidence; and
(D) “other material evidence” for the purposes of this section means
(i) independent witness evidence, other than evidence of a spouse as defined in section 1.10 of this change form or a dependent relative as defined in section 1.2 of this change form; or
(ii) physical evidence indicating the involvement of an unidentified automobile. [Emphasis added.]
[8] If the Plaintiff meets the requirements of OPCF-44R, then she will be entitled to an additional $800,000 in coverage for damages caused by an unidentified automobile. The Defendant submits that the Plaintiff’s own evidence of a collision with an unidentified automobile has not been corroborated by other material evidence.
[9] The Defendant seeks leave to bring a motion for summary judgment for a determination of whether the Plaintiff’s damages are covered under OPCF-44R. However, this action has already been set down for trial and placed on the trial list. On February 24, 2016, on consent of the parties, Justice D. Wilson ordered that the trial of this action commence on June 11, 2018, for three weeks.
Issue: Should Leave Be Granted to Allow the Defendant to Bring a Motion for Summary Judgment?
[10] Rule 48.04(1) of the Rules of Civil Procedure provides:
Subject to subrule (3), any party who has set an action down for trial and any party who has consented to the action being placed on a trial list shall not initiate or continue any motion or form of discovery without leave of the court.
[11] The Plaintiff does not dispute that Rule 48.04(1) applies in these circumstances. The sole question is whether leave should be granted.
[12] In my view, whether leave should be granted to bring a motion for summary judgment following an action being placed on a trial list turns on the application of Rule 1.04(1) and Rule 1.04(1.1) of the Rules of Civil Procedure, which state:
1.04(1) These rules shall be liberally construed to secure the just, most expeditious and least expensive determination of every civil proceeding on its merits.
1.04(1.1) In applying these rules, the court shall make orders and give directions that are proportionate to the importance and complexity of the issues, and to the amount involved, in the proceeding.
[13] As a result, the following considerations, which were canvassed by the Ontario Divisional Court in Dickson v. Di Michele, 2014 ONSC 3043, [2014] O.J. No. 2369 in its review of the case law, are relevant:
- Is the proposed motion for summary judgment being brought as a result of a substantial and unexpected change in circumstances from when the action was set down for trial?
- Will granting leave cause non-compensable prejudice to any party?
- Will the motion, if successful, be less costly and time consuming than the trial?
- Does the motion for summary judgment have no reasonable chance of success?
- Will the motion for summary judgment delay the start of trial?
[14] Applying the above considerations, there is no basis for the Defendant’s submission that the motion for summary judgment, if successful, may extinguish the need for a trial. Even if its motion is successful, the action for $200,000 in coverage under the Defendant’s policy for the Plaintiff’s losses would still proceed to trial. The Defendant has not provided any sense of the length of the proposed motion for summary judgment, including the evidence to be called on the motion, the length of anticipated cross-examinations, and when that motion might be held. In my view, it appears that there would be considerable examination of the events surrounding the collision, which would be duplicated at trial. There is also the risk of trial delay that might result from the appeal of the motion judge’s decision. The Defendant submits that the Plaintiff has been examined for discovery and has confirmed the absence of any corroborative witnesses. However, there is no evidence to explain in what manner the length of the trial in relation to the damages claimed by the Plaintiff would be shortened if the motion for summary judgment were granted.
[15] Further, given that the examination for discovery took place in 2013, the Defendant has not explained why it did not bring this motion for summary judgment prior to consenting that this action be placed on the trial list.
[16] While the Defendant may have some chance of success on a motion for summary judgment, I am not satisfied on the evidence before me that granting leave would “secure the just, most expeditious and least expensive determination” of this action on it merits or that it would be proportionate.
Conclusion
[17] For the above reasons, I dismiss the Defendant’s motion for leave.
[18] The Plaintiff claims its partial indemnity costs in the amount of $5,065.23, inclusive of disbursements of $200 and taxes. The Plaintiff’s motion record (with a three paragraph affidavit) and factum (six paragraphs) were of little assistance. Neither party provided the court with a copy of the Divisional Court’s decision in Dickson. I award the Plaintiff costs in the amount of $2,500, as it is “fair and reasonable” in the circumstances. This award is within the reasonable expectations of the Defendant, which claimed costs of $4,563.38.