ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
MIAO MIN
Plaintiff
P. Pollack, for the Plaintiff by subrogation
- and -
NISHANTHA PERERA, RUI WANG, INTACT INSURANCE COMPANY and NOVEX INSURANCE COMPANY
Defendants
N. Perera, self-represented
B. Holness, for the Defendant, Rui Wang
AND BETWEEN:
RUI WANG
Plaintiff
P. Pollack, for the Plaintiff, Rui Wang, by subrogation
- and -
NISHANTHA PERERA, INTACT INSURANCE COMPANY AND NOVEX INSURANCE
Defendants
N. Perera, self-represented
HEARD: January 7 and March 3, 2016
Thorburn J.
ENDORSEMENT
OVERVIEW
1These two companion actions stem from a motor vehicle accident on May 31, 2011. One vehicle was owned by the Plaintiff, Min, and operated by Wang and the other vehicle was owned and operated by the Defendant, Nishantha Perera.
2Both Min and Wang were injured in the accident. The total damages paid to Min and Wang by Min’s insurer, Intact Insurance Company, is $55,000.
3Mr. Perera was an uninsured motorist at the time of the accident.
4Mr. Perera brings a motion to set aside the notings in Default and have these two actions transferred to the Small Claims Court.
5He claims the Statements of Claim were sent to his former address and as soon as he became aware of the Claims in early April, 2016, he moved promptly to set aside the notings in default. He claims that Wang (the driver of the Plaintiff’s vehicle) was contributorily negligent and therefore has a duty to indemnify him.
FACTUAL BACKGROUND
6On May 31, 2011, the Plaintiff was travelling northbound on Warden Avenue. Mr. Perera pulled out of a gas station on the east side of the intersection, and turned left in front of the Plaintiff’s vehicle causing the Plaintiff and Mr. Perera’s vehicles to collide.
7Police were called to the scene and Mr. Perera was charged with failure to yield. He contested the charge in court and was convicted of the charge.
8There were no charges against the other driver.
9Intact Insurance was the insurer for the vehicle owned and operated by the Plaintiff. The Policy included provision for uninsured/underinsured motorist coverage.
10The Plaintiff issued a Statement of Claim on May 8, 2013 for damages stemming from the motor vehicle accident and damages to the Plaintiff that include permanent and serious injuries. Intact delivered a Statement of Defence and Crossclaim on July 31, 2013. Mr. Perera did not file a Statement of Defence. The Statement of Claim was sent to his old address and he claims he did not become of aware of the Claim against him until April 4, 2016.
11In the meantime, the Plaintiff obtained an order for substituted service on October 25, 2013.
12In accordance with the Plaintiff’s insurance policy, Intact paid $35,000 to settle the Plaintiff’s claim and $20,000 to settle the claim by Wang. No other party contributed to the settlement.
13The Plaintiff executed a full and final release and assignment of rights in favour of Intact on November 10, 2015.
14Mr. Perera was an uninsured motorist at the time of the collision. He provided a letter to the court from his former counsel. The letter provides that he received a letter dated April 8, 2011 to notify him that his pre-authorized payment was returned for reasons “Incorrect Account”. As a result deductions ceased as of April 8, 2011 and he was no longer insured as of the time of the accident.
15This matter was stood down to enable Mr. Perara to obtain legal advice which he has done.
16Mr. Perera seeks to set aside the noting in default. He claims service was effected at his old address, no one followed up with him, he moved promptly to set aside the noting in default and he has a meritorious defence that Wang (the driver of the Plaintiff’s vehicle) was contributorily negligent and therefore has a duty to indemnify him.
THE TEST ON A MOTION TO SET ASIDE A NOTING IN DEFAULT
17Rule 19.03 of the Rules of Civil Procedure R.R.O. 1990, Reg. 194 provides that, “The noting in default may be set aside by the court on such terms as are just.”
18In order to set aside a noting in default, the Defendant must demonstrate that he has a continuing intention to defend the claim and the Defence must have an air of reality~~.~~
19On a motion to set aside a noting in default, factors such as the behaviour of the plaintiff and the defendant, the length of the defendant’s delay in seeking to respond to the plaintiff’s claim, the reasons for the delay and the complexity and value of the claim involved, are all relevant matters to be taken into consideration. (See: Metropolitan Toronto Condominium Corp. No. 706 v. Bardmore Developments Ltd. (1991), 1991 7095 (ON CA), 3 O.R. (3d) 278 (C.A.) at para. 18.)
20As Weiler J.A. observed in H. B. Fuller Co. v. Rogers, 2015 ONCA 173, 2015 Carswell 337, there are two competing interests at stake:
The first is that civil actions should be decided on their merits. The second is that civil actions should be resolved in a timely and efficient manner in order to maintain public confidence in the administration of justice: Kara v. Arnold, 2014 ONCA 871, [2014] O.J. No. 5818, at para. 8, at para. 9; Hamilton (City), at paras. 20-21; Marché, at para. 25.
21The judge hearing the motion may set time periods for the completion of the remaining steps necessary to have the action placed on a trial list, dismiss the action for delay or make such other order as is just.
ANALYSIS AND CONCLUSION
22Although Mr. Perera represented himself on this motion, he had the assistance of counsel in drafting his motion materials and had the opportunity to consult with counsel prior to making his oral submissions.
23In his affidavit in support of these motions, Mr. Perera raises no issue as to the damages paid to Min or Wang nor is there any evidence to challenge the damages suffered by Min and Wang. Moreover, it is clear from his own material that at the relevant time, Mr. Perera was an uninsured motorist.
24The only live issue in this litigation therefore, is the apportionment of liability as between Mr. Perera and the other motorist, Wang. Mr. Perera claims Mr. Wang was partially or wholly responsible for the damages sustained in this collision.
25He made the following claims in support of his argument that Wang was contributorily negligent for the damages sustained by Min and Wang:
a. The collision occurred while Mr. Perera was making a left turn;
b. The collision occurred while the traffic light for northbound traffic (immediately after the gas station exit) was red such that he believed Wang would slow down and give him room to make a left turn; and
c. Wang failed to keep a proper lookout and was driving at excessive speed such that he collided with his vehicle.
26I have serious concerns about the merits of Mr. Perera’s claim for the following reasons:
a. Mr. Perera was charged with failure to yield, contested the charges, and was convicted;
b. Mr. Perera has adduced no evidence to substantiate his claim that Mr. Wang was speeding; and
c. Although he has had since April 4th to prepare material in support of this motion, Mr. Perera has, to this date, adduced no evidence in support of his allegation that Mr. Wang was speeding and/or was contributorily negligent.
27However, I note that Mr. Perera was not served at his new address and moved to set aside the noting in default, retain counsel and file materials and a draft defence within four months of the noting in default. I also recognize the importance of having matters heard on their merits.
28For these reasons, the issue of the apportionment of liability as between Messrs. Wang and Perera only, will be permitted to proceed on the following conditions:
a. Affidavits of documents will be exchanged within 30 days;
b. Examinations for discovery will take place within 60 days thereafter; and
c. Any expert reports will be filed within 100 days of this Order.
29Since the damages in these companion actions that stem from the same collision and involve the same parties are a total of $55,000 plus costs, it would be inappropriate to move this matter to the Small Claims Court, whose monetary limit is $25,000 as per the Courts of Justice Act, R.S.O. 1990, c. C.43, O. Reg. 626/00: Small Claims Court Jurisdiction and Appeal Limit.
30Mr. Perera was not successful in arguing that he was an insured motorist and in fact, his own documentation confirms that he was uninsured at the time of the collision Mr. Perera was also not successful in arguing that he should be permitted to reopen the issue of damages. Lastly, Mr. Perera was not successful in seeking to move this matter to the Small Claims Court. Mr. Perera was successful on only the narrow issue of the apportionment of liability as between him and the other driver. I also note that efforts were made by opposing counsel to resolve these issues prior to the hearing of this motion.
31Given that the action is permitted to proceed only on a very narrow basis, costs of this motion are reserved to the trial judge.
Thorburn J.
Released: December 6, 2016