CITATION: Pelchat v. Brown, 2016 ONSC 6754
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
ARLENE PELCHAT
Plaintiff
– and –
MELANIE RACHELLE WARDELL and ALLAN BROWN
Defendants
J. Cond, for the Plaintiff
P. Feifel, for the Defendants
HEARD: October 27, 2016
REASONS FOR ORDER
RASAIAH J.
1The Defendant Allan Brown (“Brown”) moves for default judgement as against the Defendant, Melanie Rachelle Wardell (“Wardell”) with respect to the crossclaim brought by Brown against Wardell in respect of a motor vehicle collision.
2Brown seeks judgment in the amount of $205,000.00 representing the settlement amount reached between the Plaintiff and the Defendant, Allan Brown settling the main action.
3Brown further seeks pre-judgment and post-judgment interest, costs of defending the main action, crossclaim and the motion for default judgment.
FACTS
4The main action arose as a result of a motor vehicle accident which occurred on October 31, 2008. On that date a vehicle driven by Wardell and owned by Brown failed to stop at a stop sign and struck the Plaintiff’s vehicle alleged causing bodily harm to the Plaintiff, Ms. Pelchat.
5The Plaintiff made allegations of negligence resulting in damages and loss to the Plaintiff as against the Defendant Melanie Wardell for her role in driving the motor vehicle and the Defendant, Allan Brown, as owner of the vehicle being driven by Melanie Wardell.
6At the time of the motor vehicle accident, the Plaintiff was 49 years of age.
7The Plaintiff claimed damages totaling $1,050,000.00 as well as for future care costs, special damages, legal costs and interest.
8The Plaintiff claimed she suffered numerous injuries including:
a. Loss of consciousness;
b. Neck pain, lacerations and swelling, including C4-5 disc herniation, C5-6 central disc bulge causing spinal canal narrowing, C6-7 left paracentral focal disc herniation causing focal narrowing of the central thecal sac and compression of the underlying cord;
c. Lower back pain and swelling;
d. Radiating upper legs, knees, and left calf pain;
e. Bilateral shoulder pain radiating down the entire left arm, left worse than right;
f. Upper back pain;
g. Bilateral hip pain radiating into the buttocks with bruising and swelling; left ankle pain, laceration and bruising;
h. Numbness and swelling in the left upper arm, elbow, lower arm, wrist, hand and fingers, neuropraxia of the brachial plexus of the left upper limb;
i. Head numbness;
j. Forehead abrasions and left hand laceration;
k. Bruising to her left shoulder, left hip, left knee and left lower leg;
l. Migraine headaches;
m. Sleep disturbance;
n. Fatigue;
o. Short-term memory and concentration difficulties;
p. Depression;
q. Tearfulness;
r. Panic attacks;
s. Nightmares;
t. Driving anxiety; and
u. Emotional difficulties.
9The Plaintiff made allegations with respect to suffering a closed head injury, post-concussion syndrome or acquired brain injury causing cognitive difficulties. The Plaintiff further alleged having undergone numerous types of therapy.
10The Plaintiff alleged that as a result of the motor vehicle accident and injuries suffered therein, she was forced to miss time from her employment as a Personal Support Worker. Further, the Plaintiff made allegations that due to the injuries sustained in the motor vehicle accident and the limitations placed upon her by the same, she may suffer future income loss and a loss of competitiveness in the labour market.
11Brown initially served a statement of defence on June 7, 2011. Thereafter, Brown had the statement of defence amended to include a crossclaim as against Wardell. The amended statement of defence crossclaim was served upon Wardell on October 29, 2012.
12Despite being properly served with the crossclaim, the defendant, Melanie Wardell failed to provide a defence within 20 days pursuant to Rule 28.04 of the Rules of Civil Procedure.
13The amended statement of defence and crossclaim contained the crossclaim wherein Brown, claimed against Wardell for contribution and indemnity for any amounts required to be paid by Brown to the Plaintiff, including prejudgment interest and costs. Further, Brown claimed the costs of defending the main action and the crossclaim as well as interest.
14In the crossclaim, Brown repeated and relied upon his statement of defence and he adopted the allegations of negligence as against Wardell contained in the statement of claim.
15The statement of claim contained factual allegations with respect to Wardell operating the motor vehicle without a valid driver’s licence at the time of the motor vehicle accident. Said allegations were incorporated into the amended statement of defence and crossclaim.
16The crossclaim alleged that Wardell was charged pursuant to Section 130(1)(a) of the Highway Traffic Act. In addition, the crossclaim stated that she possessed a suspended driver’s licence at the time of the accident which took place on or about October 31, 2008.
17The crossclaim alleged that the collision arose solely as a result of the negligence of Wardell and set forth a number of specific allegations contained in paragraph 26 of the amended statement of defence and crossclaim.
18The affidavit of Brian DeLorenzi sworn November 2, 2016 and the exhibits attached including academic information, hospital records, medical reports, future care costs report, extraordinary expense report and economic loss report, indicate that the Plaintiff suffered serious and permanent impairments as contemplated by the legislation as a result of the accident and the damages as claimed. She will continue to have ongoing issues. She has chronic myofascial/mechanical neck and low back pain due to cervical and lumbar strains sustained in the motor vehicle accident. Her prognosis is described as statistically poor. She was described as having exhibited sincerity and motivation in returning to work as a personal support worker; however, her employment has been affected in that she will likely not be able to manage clients who require heavy personal care. She is managing most of her personal care but she has not returned to all of her pre-accident activities and she continues to suffer limitations for heavy household chores and outdoor maintenance. She requires restrictions for activities that require sustained and repetitive overhead activities, sustained repetitive bending, heavy or repetitive lifting and carrying, heavy or repetitive pushing and pulling activities.
19Brown ultimately settled the action with the Plaintiff on January 20, 2014 for the all-inclusive sum of $205,000.00. Wardell did not participate in reaching this settlement. Mr. DeLorenzi, based on his review of the documents attached to his said affidavit with his years of experience in litigating motor vehicle accident claims, expressed that the settlement amount was a reasonable resolution given the Plaintiff’s damages and ongoing issues.
20Wardell has not defended the Crossclaim, nor has she participated in the main action, including failing to attend for Examination for Discovery, and as such, pleadings were noted closed against her on November 12, 2015.
21Through its investigation Brown's automobile insurer denied coverage for Wardell, who they determined had operated Brown's automobile without a valid license and without Brown's knowledge of this fact. Wardell gave a statement to Insurance Adjuster, Anne Venn of ClaimsPro wherein she admitted being aware of driving at the time of the motor vehicle accident without a valid licence and admitted that she had not at any time informed Brown that she did not have a valid license.
22Brown, claims pre-judgment interest from the date that the Statement of Defence was amended to include the Crossclaim against Wardell, which occurred on October 23, 2012.
23Brown claims costs against Wardell incurred to defend the main action as well costs in respect of the crossclaim and the costs of obtaining judgment on the Crossclaim by way of the Motion herein.
24The Defendant, Allan Brown, claims pre-judgment interest in the amount of $10,484.77 reflecting the interest from the date of amendment of the Statement of Defence to include the Crossclaim (October 23, 2012) to the date of default judgment on the Crossclaim (September 29, 2016). In the alternative, the Defendant, Allan Brown, claims interest in the amount of $3,650.68 reflecting the interest from the date of amendment of the Statement of Defence to include the Crossclaim (October 23, 2012) to the date of settlement of the main action between the Defendant, Allan Brown and the Plaintiff (March 7, 2014).
LAW
25Rule 19.09 of the Rules of Civil Procedure provides that the Rules with respect to default proceedings contained in Rule 19, specifically Rules 19.01 to 19.08 apply, with necessary modifications to crossclaims, subject to Rule 28.07.
26Rule 19.02(1) of the Rules of Civil Procedure sets out the consequences of noting default. The defendant who has been noted in default is deemed to admit the truth of all allegations of fact made in the statement of claim.
27Rule 19.05(3) of the Rules of Civil Procedure provides that on a motion for judgment, the judge may grant judgment, dismiss the action or order that the action proceed to trial and that oral evidence be presented.
28Rule 19.06 of the Rules of Civil Procedure provides that a plaintiff is not entitled to judgment on a motion for judgment or at trial merely because the facts alleged in the statement of claim are deemed to be admitted, unless the facts entitle the plaintiff to judgment.
29The Court must determine if the evidence entitles judgment: Nikore v. Jarmain Investment Management Inc. (2009), 2009 CanLII 46655 (ON SC), 97 O.R. (3d) 132, 180 A.C.W.S. (3d) 603 (S.C.J.).
30Strathy J. stated in Salimijazi v. Pakjou, [2009] CarswellOnt 2013 (Ont. S.C.J.) at paras 34 and 35, with which I agree:
It seems to me that a judge hearing the motion for judgment under Rule 19.05(1) has a duty to both parties, even though the defendant is not present. That duty is part of the court’s duty in the administration of justice. The duty to the plaintiff is to dispense expeditious and cost-efficient justice where the defendant has ignored the court process. The duty to the absent defendant and to the public is to ensure that justice is indeed done and that manifestly unsustainable claims are not mechanically processed. Rule 19.06 codifies this obligation by requiring the judge to make certain that the facts pleaded do indeed entitle the plaintiff to judgment. It seems to me, as well, that where the plaintiff sees fit to adduce evidence going to liability, and that evidence establishes that part or all of the plaintiff’s claims cannot succeed, justice is not served by granting judgment, simply because the defendant has failed to defend. As Quinn J. noted in footnote 9 to para. 52 in Plouffe v. Roy, where the plaintiff’s evidence at an undefended trial conflicts with the facts as pleaded, the trial judge must necessarily make findings of fact. I can see no reason in principal why the same logic should not apply to a motion for judgment under Rule 19.05(1), where the plaintiff has filed affidavit evidence as to liability.
If the motions judge is required, by rule 19.06, to consider whether the facts pleaded entitle the plaintiff to judgment, it seems to me that where the plaintiff has sworn to additional facts the judge is entitled to consider whether those additional facts show that the plaintiff is not entitled to judgment. A judge presented, as I am, with alternate and inconsistent pleadings on the one hand, and affidavit evidence on the other hand, is not obliged to accept the truth of the pleaded facts that are inconsistent with the plaintiff’s sworn evidence. To this extent, I respectfully express a qualification to the observations of Murray J. in Halton (Regional Municipality) v. Rezaizadeh, above. In doing so, I note that in the case before him, the issue was whether sworn evidence could be used to augment the facts pleaded. In this case, I have concluded that the sworn evidence can be used to qualify or contradict the inconsistent facts pleaded. Without this qualification, judgment might be given to a plaintiff who, on his or her own sworn evidence, is not entitled to judgment.
31The availability of contribution and indemnity between two or more persons is provided for in sections 1 and 2 of the Negligence Act, R.S.O. 1990, C. N.1. Wardell in this case is liable to make contribution and indemnity in the degree she is found to be at fault or negligent. Brown may recover the amount of the settlement if the settlement is reasonable.
CONCLUSION
32I find that Wardell is deemed to admit the facts of the crossclaim which adopted the statement of claim facts. The facts entitle Brown to judgment. Brown was responsible for the actions of Wardell as owner of the vehicle who consented to Wardell’s use of the vehicle. Wardell made a statement reflecting her responsibility for the accident; and that she did not inform Brown of the suspended status of her driver’s licence at the material time which statement was filed as evidence on this motion. In respect of the accident, she stated that while having her head turned towards a front seat passenger she was having a conversation with, she travelled through a stop sign into an intersection causing the collision with the Plaintiff’s vehicle. On this basis I am satisfied she should indemnify Brown fully.
33Based on the affidavit of Brian DeLorenzi dated November 2, 2016 and the exhibits attached including academic records, hospital records, medical reports, future care costs report, extraordinary expense report and economic loss report, and the damages suffered by the Plaintiff as referred to in same, the settlement appears to be within the range of the awards available and reasonable in respect the damages suffered by the Plaintiff in accordance with the authorities filed, which I have reviewed: Hoffman v. Jekel, 2011 ONSC 1324; Barbosa v. Marques, 1995 CarswellOnt 3703; Slaght v. Phillip, 2010 ONSC 6464; Mason v. Moore, [2005] O.J. No. 3799.
34On the issue of pre-judgment and post judgment interest, the plaintiff claims pre-judgment and post-judgment interest in accordance with the Courts of Justice Act R.S.O. 1990, c. C.43, as amended (“Courts of Justice Act”). I am of the view that based on section 128 of the Courts of Justice Act, the prejudgment interest should run from the date of the settlement, March 7, 2014. This is the date on which Brown became liable for damages to the Plaintiff.
35On the issue of costs, I am satisfied that I should exercise my discretion to order costs on the main action and crossclaim in accordance with Rule 57.01 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. The bills and outline of costs are not unreasonable. The issue of liability appeared straightforward, and in her statement made to the insurer Wardell did not deny liability. The issue of damages I appreciate may have been more involved and complicated given the injuries sustained by the Plaintiff, the amount being claimed, and the need for analysis of same through medical examination. The amount of costs claimed, in my view, is in the range of the amount Wardell could reasonably expect to pay in relation to the steps taken in this proceeding. Wardell has ignored this court process and was noted in default on the claim and the crossclaim. The motion for this judgment was required by the rules to obtain judgment. Balancing the foregoing, I order all-inclusive costs of $20,000.00.
ORDER
The Defendant Melanie Rachelle Wardell shall pay to the Defendant Allan Brown as contribution and indemnity, the sum of $205,000.00 together with pre-judgment interest at the rate of 1.3 percent per year from March 7, 2014 to the date of this Order, and post-judgment interest from the date of this Order at the rate of 2 percent per year.
The Defendant Melanie Rachelle Wardell shall pay costs to the Defendant Allan Brown in the amount of $20,000.00 inclusive of fees, disbursements and taxes.
Rasaiah J.
Released: November 7, 2016
CITATION: Pelchat v. Brown, 2016 ONSC 6754
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
ARLENE PELCHAT
- and -
MELANIE RACHELLE WARDELL and ALLAN BROWN
REASONS FOR ORDER
Rasaiah J.
Released: November 7, 2016