Lacroix v. Intact Insurance Company, 2016 ONSC 829

CITATION: Lacroix v. Intact Insurance Company, 2016 ONSC 829

COURT FILE NO.: 10-48028

DATE: 2016/12/13

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

ROBERT LACROIX

Plaintiff

– and –

INTACT INSURANCE COMPANY, RENÉ MAYNARD, DENISE ALLARD and EDWARD HAWN

Defendants

Counsel:

Jessica Abou-Eid, for the Plaintiff (Defendant by counterclaim)

Louise Morel, for Intact Insurance Company, Defendant (Plaintiff by Counterclaim and Cross-claim)

Brian Fisher, for René Maynard, Defendant

HEARD: January 26-27, 2016 (at Ottawa)

REASONS ON SUMMARY JUDGMENT MOTIONs

KANE J.

1Robert Lacroix (“Lacroix”), Intact Insurance Company (“Intact”) and René Maynard (“Maynard”) have each brought a motion for summary judgment.

2The defendants Denise Allard and Edward Hawn were noted in default on June 8, 2011 and have not defended the claims or cross-claims against them.

3On September 26, 2012, Mr. Lacroix, Intact and Mr. Maynard agreed to a consent order “to proceed by way of a motion for summary judgment under rule 20.04(1)(b) …” of each of their summary judgment motions. The moving parties agreed that “subject to the judge, all of this can be decided at the motion for summary judgment under rule 20.04(1 )(b).”

4R. 20.04 (2b) states:

20.04(2) The Court shall grant summary judgment if:

a. the parties agree to have all or part of the claim determined by summary judgment and the Court is satisfied that it is appropriate to grant summary judgment.

5Mr. Lacroix’s theory in this case is that his friend Mr. Maynard stole his truck which the plaintiff used to work in the Alberta energy production fields, that his vehicle insurer Intact improperly denied his claim of theft which forced the plaintiff to deal with the thief and his accomplices, Mr. Hawn and Ms. Allard, which resulted in the plaintiff being physically and psychologically injured from a gunshot by Mr. Hawn.

6Mr. Lacroix’s current version as to Mr. Maynard’s theft of the Truck and his possession of that vehicle’s ignition key is very different than his original reported versions of events.

7Mr. Lacroix had reported previous vehicles stolen and successfully recovered the value thereof from his insurer. Police initially investigated the possibility that Mr. Lacroix was attempting to defraud Intact as to his report that some unknown person stole the Truck. During the course of this investigation, Mr. Lacroix thereupon pointed to Mr. Maynard as the thief and changed his previous statements that Mr. Maynard also had an ignition key.

8Mr. Lacroix and Mr. Maynard each have criminal records which include theft and or possession of stolen property.

Pleadings and Motions for Summary Judgment

Lacroix

9In his statement of claim, Mr. Lacroix:

a. In the third last paragraph, alleges that Mr. Maynard on March 23 or 24, 2009, stole the plaintiff’s 2008 Dodge Ram 3500 diesel truck (the “Truck”), or in the alternative, Mr. Maynard was negligent towards the plaintiff for being in possess ion of the stolen Truck;

b. Alleges he used the Truck for his employment as a well tester in the Alberta oil fields and he was denied use thereof during the period of its theft which resulted in loss of income which led to missed financing payments and repossession and loss of the vehicle;

c. Alleges, which is not in disputed, that The Truck was insured for theft by Intact (the “Contract”).

d. Alleges, which is agreed, that he submitted a claim to Intact for the value thereof and Intact denied that claim;

e. Alleges, which is not disputed, that police recovered possession of the Truck at Mr. Maynard’s residence;

f. Alleges that he paid certain repair costs to the Truck which Intact refused to reimburse and which Mr. Maynard will not fully reimburse him for;

g. Alleges that he pressed Mr. Maynard for payment of the repair costs and at the suggestion of Ms. Allard, attended the residence of Mr. Maynard to receive payment on September 10, 2009 but was then shot in the leg by Mr. Hawn;

h. Alleges that Intact breached its insurance Contract by not paying him for the theft of the Truck, the resulting loss of his Alberta income and vehicle repair costs and the negligence by Intact’s denial thereof; thereby exposing the plaintiff to injury as his only option was to deal with the other defendants in an attempt to recover is losses;

i. Alleges the individual defendants are liable for luring the plaintiff to the September 10, 2009 weapon associated meeting knowing Mr. Hawn would use a weapon to shoot the plaintiff which constituted their conspiracy to physically harm the plaintiff;

j. Alleges that Mr. Maynard in the alternative, was negligent in allowing Ms. Allard and Mr. Hawn to use his property for the September 10, 2009 meeting with the plaintiff, for storing firearms on his property which were to be used against the plaintiff, failing to warn the plaintiff of danger and that he should not meet with Ms. Allard and Mr. Hawn.

k. Claims $50,000 damages against Intact and Mr. Maynard for the theft, possession, and loss of use of the Truck;

l. Claims $50,000 loss of income against Intact and Mr. Maynard for his inability to use the Truck for his employment;

m. Claims $250,000 damages against all defendants for personal injury, emotional distress, trauma and loss of income as a result of being shot by Mr. Hawn, for conspiracy or negligence by Mr. Maynard and for negligence or breach of contract by Intact; and

n. Claims special damages for out-of-pocket expenses including legal fees related to the plaintiff’s claim of indemnification pursuant to the insurance contract with Intact.

10Mr. Lacroix in this March 2010 claim does not allege that Mr. Maynard stole or was in possession of a Truck ignition key.

11Lacroix in his motion for summary judgment without further specifics seeks:

a. Summary Judgment; and

b. Cost on a substantial indemnity scale.

12The grounds of Mr. Lacroix’s motion for summary judgment are:

a. The Truck was stolen from Mr. Lacroix on March 23, 2009 by or with the knowledge and co-operation of Mr. Maynard;

b. Intact breached the Contract in refusing to compensate Mr. Lacroix for the theft of the Truck because he failed to provide any evidence on a balance of probabilities to establish it was stolen by a third party;

c. Theft of the Truck prevented Mr. Lacroix pursuing his employment for which he required the Truck, thereby resulting in his loss of income;

d. Mr. Maynard plead guilty to a charge of possession of the stolen Truck, was fined $1,500 and was not in possession of the Truck by written agreement;

e. Given Intact’s denial of insurance coverage, the plaintiff sought to recover his damages from Mr. Maynard;

f. Ms. Allard lured the plaintiff to Mr. Maynard’s residence where Mr. Hawn confronted the plaintiff with a shot gun and shot Mr. Lacroix in the leg causing him serious physical and psychological injuries; and

g. Mr. Maynard on June 9, 2009, upon being confronted by the plaintiff, delvered up possession of a second Truck ignition key.

Intact

13Intact filed a defence and cross-claim against the other defendants in which it alleges that:

a. The plaintiff reported the theft of and filed a $71,539 claim for the value of the Truck on March 24 and April 27, 2009;

b. The plaintiff at his May 6, 2009 examination under oath by Intact stated that the Truck was equipped with an electronic anti-theft encoded key system and that the plaintiff had possession of the only encoded key but would not answer several questions including relevant financial information and as to his employment;

c. As indicated by the evidence subsequently disclosed and now before this Court, the Truck was located and removed by police from Mr. Maynard’s property on May 15, 2015 and then delivered to the plaintiff on May 22, 2009;

d. On June 3, 2009, Intact advised the plaintiff that pursuant to the Contract, its certified appraiser must inspect the Truck prior to performing any repairs. The plaintiff on June 9, 2009 instead advised Intact that repairs of the Truck were being carried out and provided a repair estimate which did not indicate evidence of forced entry into the Truck or damage to the Truck ignition system;

e. Intact therefore denied breach of its Contract coverage; and

f. Intact claims contribution and indemnity from the other defendants.

14In its motion for summary judgment, Intact seeks summary judgment dismissing Mr. Lacroix’s action against it together with costs on a substantial indemnity basis.

15Intact disputes liability to Mr. Lacroix on the basis that:

a. The Truck was not stolen within the terms of the Contract as Mr. Lacroix himself or by others caused the Truck to be stored at Mr. Maynard barn and Mr. Lacroix, then falsely reported the Truck stolen in order to recover insurance proceeds coverage from Intact;

b. Mr. Lacroix breached Intact’s Contract in that the Truck was not stolen pursuant to the Contract, or was stolen by or under the direction of Mr. Lacroix in order to file a false insurance claim from Intact;

c. Mr. Lacroix recovered possession of the Truck shortly after reporting it stolen and therefore incurred no damages in relation to the Contract;

d. Mr. Lacroix breached the Contract in refusing to provide information requested by Intact as to the circumstances regarding the alleged theft of the Truck;

e. Mr. Lacroix breached the Contract in failing to permit Intact to examine the Truck prior to repair of the same;

f. It was not foreseeable that Mr. Lacroix would be threatened by and injured by any of the defendants and Intact therefore has no legal responsible in relation to any such injury;

g. Mr. Lacroix has failed to prove his damages; or alternatively,

h. Has suffered no damages for which Intact is legally responsible.

Maynard

16Mr. Maynard filed a defence, counter-claim and cross claims against Ms. Allard and Mr. Hawn in which he:

a. Denies the Truck was stolen;

b. Alleges that Mr. Lacroix stored the Truck at his residence in the middle of March, 2009 and then fraudulently reported the Truck stolen to his insurance company;

c. States that police on May 15, 2009 attended Mr. Maynard’s property and took possession of the Truck, as a result of which the plaintiff became furious as he was attempting to recover the value thereof from Intact and had sold the Truck he reported stolen to a third party;

d. Alleges that the plaintiff on May 28, 2009 together with another person attended and threatened him in order to exact payment of $5,000, being the deposit the plaintiff had received on his sale of the Truck to a criminal gang called the Nomades;

e. Alleges that he paid the plaintiff $946 on May 28, 2009, and a further $4,000 on June 12, 2009 in response to the threats he continued to receive from Mr. Lacroix;

f. The plaintiff thereafter demanded another $6,000 from Mr. Maynard for his legal expenses at the end of July or early August 2009. Mr. Maynard refused, as a result of which he was repeatedly stuck and injured by the plaintiff;

g. Alleges he was not present, was not a party to and did not conspire with Mr. Hawn and Ms. Allard as to any assault or shooting of the plaintiff on September 10,2009; and

h. Alleges he accordingly has no legal responsibility towards the plaintiff, including in negligence and pleads the Occupiers Liability Act, 1990 R.S.O. c. 0.2, ss.4(2) and (3).

17Mr. Maynard in his counterclaim seeks:

a. $5,000 damages for intimidation;

b. $60,000 general damages for pain and suffering.

18In his cross-claim, Mr. Maynard seeks indemnification from Ms. Allard and Mr. Hawn for any damages recovered against him by the plaintiff.

19In his motion for summary judgment, Mr. Maynard seeks:

a. Summary judgment dismissing Mr. Lacroix’s claims, or alternatively limiting any such damage award against Mr. Maynard to nominal damages in the amount of $500;

b. Summary judgment in the form of indemnity against Ms. Allard and Mr. Hawn for any damages awarded against Mr. Maynard to Mr. Lacroix; and

c. Summary judgment by counter-claim against Mr. Lacroix.

20The grounds of Mr. Maynard’s motions for summary judgment are that:

a. Mr. Lacroix with Mr. Maynard’s permission parked the Truck in Mr. Maynard’s barn in March 2009;

b. Mr. Lacroix reported the Truck stolen to police and Intact in order to recover insurance proceeds from Intact;

c. An informant told police the Truck was stolen and located inside Mr. Maynard’s barn;

d. Police located the Truck inside Mr. Maynard’s barn;

e. Mr. Lacroix is associated with members of the Hells Angels or Nomads organizations. Mr. Lacroix agreed to sell the Truck to them, received part of that purchase price and then used threats and physical force to extract money from Mr. Maynard when the police returned the Truck to Mr. Lacroix;

f. Mr. Lacroix alleges Mr. Maynard told police the Truck was in his barn and thereby prevented Mr. Lacroix’s recovery of insurance proceed from Intact and prevented Mr. Lacroix’s sale of the Truck to a member of such criminal organization.

21Mr. Maynard disputes liability to Mr. Lacroix on the basis that:

a. Mr. Lacroix is not legally entitled to damages for fraudulently reporting the theft of the Truck and his fraudulent attempt to claim insurance reimbursement for the loss thereof;

b. Mr. Lacroix suffered no damages and failed to prove any damages as to his reporting of the Truck being stolen which was untrue, particularly as police recovered and returned the Truck to Mr. Lacroix on May 15, 2009;

c. Mr. Lacroix has been untruthful as to the nature and extent of his injuries and has not proven such injuries, nor any loss of income;

d. Mr. Maynard’s plea of guilty to the charge of being in possession of stolen property in the form of the Truck being found by police in his barn is not determinative on a civil standard as to Mr. Maynard’s civil liability regarding any of Mr. Lacroix’s claims;

e. Mr. Maynard is not liable for Mr. Lacroix’s payment of towing charges upon police removing the Truck from Mr. Maynard’s barn, nor for any repairs to that vehicle as Mr. Lacroix hid the Truck in Mr. Maynard’s barn in order to report it stolen and to fraudulently recover the insurance proceeds, thereby defeating Mr. Lacroix’s claim in negligence;

f. Mr. Maynard seeks indemnity from Ms. Allard and Mr. Hawn as to any damages awarded to Mr. Lacroix against Mr. Maynard; and

g. Mr. Maynard has no civil obligation to prove damages as to his counterclaim against Mr. Lacroix as damages are presumed for the acts of violence against Mr. Maynard which Mr. Lacroix admits he caused in repeatedly striking Mr. Maynard.

Applicability of Rules 20,04(2.1) and (2.2) to Rule 20.04(2)(b) Consent Summary Judgment Motions

22The fundamental principles enunciated by the Supreme Court in Hyrniak v. Mauldin, 2004 SCC 7 include:

a. Courts on summary judgment motions are compelled to question whether either the expense and delay of fact finding at trial is necessary to a fair and just dedudication;

b. Summary judgment motions are a legitimate alternative for judication in resolving legal disputes;

c. The Court shall grant summary judgment if there’s no genuine issue requiring a trial;

d. There will be no genuine issue requiring a trial if the parties on the motion provide the Court with evidence, provide the Court with sufficient evidence required to fairly and justly adjudicate the dispute;

e. The test is not whether the summary judgment motion is as exhausted as the trial. The test is rather whether the Court has confidence as to its ability to make findings of facts to apply irrelevantly principals to resolve the dispute; and therefore; and

f. The Court on a summary judgment motion shall decide the dispute if the necessary evidence has been presented to fairly and justly adjudicate the dispute unless the judge determines that there’s a genuine issue which require the out of expense and delay of a trial; paras. 32 to 34, 36, 43 to 45, 50 and 57.

23Sub-rules 20.04 (2.1) and (2.2) apply to these summary judgment motions brought by the parties on consent under sub-rule 20.04(2)(b): Lagani v. Lagani Estate, 2013 ONCA 159, 86 E.T.R. (3d) 1, para 5; Fillmore v Hercules SLR Inc., 2016 ONSC 4686, para. 4; Ebagua v. National Rent A Car et al., 2015 ONSC 979, at para. 1; Park v. Park, 2012 ONSC 930, at para. 6 and Maguire v. Padt, 2014 ONSC 6099, para 14.

24Consideration as to whether it is appropriate to grant summary judgment under Rule 20.08 (2)(b) as to these motions includes the review whether the weighing of evidence, the evaluation of credibility and the drawing of inferences in this case should only be exercised at a trial pursuant to the interest of Justice.

25Mr. Lacroix alleges the Truck was stolen and then found in the possession of Mr. Maynard. Mr. Maynard denied that allegation and alleges that Mr. Lacroix left the Truck in his barn temporarily with the permission of that defendant and then falsely reported the theft of the Truck to Intact. A trial of this central issue realistically will result in the repetition of these contradictory versions of events, regarding which each of these gentleman provided prior statements, have already been questioned on discovery and in the case of Mr. Lacroix, was also questioned under oath by Intact.

EVIDENCE AND FINDINGS OF FACTS

26The Court has weighed the evidence presented by the parties, evaluated the credibility of the moving parties and drawned reasonable inferences from that evidence in support of the following findings of fact.

27Mr. Lacroix and Mr. Maynard in 2009 had been friends or acquaintances for several years. They had common acquaintances, including Ms. Allard.

28Mr. Maynard’s activities included selling of street drugs, which Mr. Lacroix supplied to him.

29In February 2009, Mr. Lacroix was 38 years old. Mr. Maynard was then 50 years old. They had been friends for some time and spent time together racing with Mr. Lacroix’s team being sponsored by a racing entity called the Nomads.

30Mr. Lacroix in December 2007 reported the theft of a previous truck he owned. His insurer in 2008 paid Mr. Lacroix the insured value of this prior truck reported stolen.

31Mr. Lacroix purchased the Truck, a 2008 Dodge Ram heavy duty diesel in March 2008 in order to work with it in the Alberta energy production fields where he worked on contract basis between October and April each year. Mr. Lacroix used the Truck to haul equipment and men between production sites in Alberta.

32The Truck cost $67,000. The additional equipment on the Truck, plus finance costs, brought the total purchase price to approximately $84,000, of which Lacroix paid $7,000 and financed the balance. Mr. Lacroix’s 2008 and 2009 reported annual income to Revenu Canada was $26,000 in each year. His personal holding company reported losses in both of those years.

33Due to the 2008 production and employment collapse in the Alberta energy industry, Mr. Lacroix stopped working in Alberta and returned to Ottawa with the Truck and his belongings in December 2008, some four months prior to the normal end of his annual fall to spring contract work in Alberta. That coincides with Mr. Lacroix’s understanding that there would be no further energy field work for him in Alberta in 2009, which is why he brought the Truck back to Ontario, rather than his custom of flying back to Ontario and leaving the Truck at his residence in Alberta.

34The Truck had a storage unit in the back which exceeded the height of the cab. Due to its height, Mr. Lacroix could not store the Truck in his garage at his Ottawa home.

35Mr. Lacroix at the time owned a number of other vehicles, also had use of his father’s car in Ottawa and did not need the Truck for transportation purposes in Ottawa.

36Mr. Lacroix defaulted in paying his February 2009 monthly finance payment on the Truck. That default is prior to the alleged theft of the Truck in March 2009, several months after Mr. Lacroix returned early from Alberta due to the down term in the energy production sector. These facts contradict his allegation that it was the theft of the Truck in March 2009 which led to his decrease of income and his default in making the financing payments for the Truck which led to the resulting repossession of that vehicle. Due to the downturn in the energy production field, Mr. Lacroix was faced with ongoing monthly payments without the need for or the Alberta energy income to make those payments for the foreseeable future.

37Mr. Lacroix reported the Truck was stolen from his driveway to the Ottawa Police but was unwilling to attend a police interview unless accompanied by his lawyer.

38Mr. Lacroix had previously stored a different truck and a boat in Maynard’s barn for the 2008-2009 winter season. Mr. Lacroix attended at Mr. Maynard’s residence in March 2009 and removed this other truck and boat stored inside Mr. Maynard’s barn, which is where police using a warrant located the Truck.

39Mr. Lacroix reported the Truck stolen to Intact on March 24, 2009. Mr. Maynard, then or later, was aware that Mr. Lacroix reported or intended to report the Truck stolen to his insurer.

40On March 24, 2009, Mr. Lacroix also reported the theft of the Truck to the Ottawa Police. The Ottawa Police asked Mr. Lacroix to attend their office and provide a statement regarding the theft. Mr. Lacroix refused to provide a statement to police unless his lawyer was present.

41Mr. Lacroix on March 27, 2009, filed his filed his proof of loss of the Truck with Intact.

42The central issue is whether Mr. Lacroix had stored the Truck at or in Mr. Maynard’s barn as reported and alleged by Mr. Maynard. Mr. Lacroix denies this allegation and alleges the Truck remained parked in his driveway over the winter until it was allegedly stolen in March of 2009.

43On April 2, 2009, Mr. Lacroix gave a signed statement to Intact pursuant to his claim for reimbursement for the Truck (“Intact Statement”) stating therein that:

a. At the time of purchase of the Truck from the dealership Car Canada, he was only received two keys, namely a black ignition key with remote and a silver key with grey on the top which only opened the vehicle doors;

b. He did not have any additional key made for the Truck prior to the reported theft;

c. At the time of signing this statement, he gave both of the above keys to Intact;

d. The doors of the Truck were locked at the time it was stolen from his property on March 23, 2009;

e. Upon noticing that the Truck had been stolen from his driveway, he noted that there were no sign of broken vehicle glass, nor was there any sign that the Truck had been towed out of the driveway.

44Intact filed a statement from the sales manager at Car Canada where Mr. Lacroix purchased the Truck which states that:

a. When a new vehicle is purchased from Chrysler, the buyer is issued two keys;

b. The records of Car Canada indicate that there had been no additional key cut for the Truck.

45During his examination under oath by Intact on May 6, 2009, Mr. Lacroix:

a. refused to provide information on several points including his whereabouts when the Truck was stolen or whether he was then in arrears of the purchase financing;

b. stated that at the time of his purchase of the Truck, he was only provided with two keys, only one of which actually started the Truck engine and the second key simply unlocked the doors;

c. said he never had any other keys made for the Truck;

d. that he always kept the Truck ignition key on him while the second door key was kept by his parents at their residence;

e. that upon filing his insurance claim, he gave Intact the two above keys received on puchasde to Intact;

f. in reply to the original police request whether anyone one else had a key to the Truck, he replied that his parents had the second key which opened the vehicle doors; and

g. he had no idea who stole the Truck.

4642 Mr. Lacroix in this Intact examination did not state that he must have had a second ignition key made for the Truck or that such additional ignition key must have been stolen from his house as upon seeing the removal of the vehicle he noted there was no signs of its forced removal from his property.

4743. The plaintiff, almost three years later, on his March 2012 examination for discovery changed his April 2, 2009 statement to Intact and his examination under oath by that insurer that he had only received two keys upon the purchase of the Truck, by then stating that he had received a third key to the Truck which he speculated must had been made when he had an after-market alarmed system installed on the Truck, resulting in two keys that would start the ignition.

4844. Mr. Lacroix’s statements on discovery as to a second ignition key constitute speculation on his part and includes the following statements:

a. On June 9, 2009, Mr. Lacroix went to Mr. Maynard’s home. An argument between them occurred during which Mr. Maynard “ spit out the key to the (T)ruck that he had acquired from wherever he acquired it from to be able to steal my (T)ruck”. Mr. Lacroix thereupon assaulted Mr. Maynard;

b. Mr. Maynard insulted Mr. Lacroix “By … breaking into my house, taking the key for the (T)ruck, stealing the (T)ruck….”

c. “And then me putting him on the Spot asking him how he got into my house and how he got into my (T)ruck and where is the key to my (T)ruck that he obviously took because the ignition wasn’t physically … damaged .. broken”. So after … putting him on the spot like that he pulled the key out of his pocket. I slapped him on the mouth. Told him he was a goof. Got in my (T)ruck and drove away”.

d. When he purchased the Truck, he “thought he received three keys. I thought --- I know two of them had a chip in them for the ignition …” “Now I could be wrong, but that’s what I can --- I’m sure I had three keys at one point for this vehicle”

e. As to his statement on examination under oath by Intact in May 2009 that he only had one ignition key and one door key: “I might have said that at the time but for some reason I’m sure I had the three keys.”

f. As to whether his memory as to the number of keys he had was better three years after the reported theft: “Yeah, I guess so. I’ve had more time to think about everything. … I had a bunch of work done on the (T)ruck … an alarm system and an all start system put in … they had a problem doing this … because of this key system that was in there …And I can’t --- I can’t recall. … Now how I ended up with three keys at the end of it all I don’t really recall”. “I can almost say I believe there was an extra key made when I had this after-market alarm system put in ….”

49The plaintiff on discovery however indicated that he only provided Chrysler with one key when he subsequently surrendered the Truck to as a result of his non-payment of the monthly financing charges.

50Mr. Lacroix pursuant to his undertaking on discovery has failed to produce any documentation evidencing that a second ignition Truck key was produced or given to him by the dealership or an subsequent equipment installer.

51Returning to the sequence of events; Mr. Lacroix on April 27, 2009 signed a proof of loss with Intact claiming $71,539 for theft of the Truck.

52Police in the last week of April, 2009, received several telephone calls from an unnamed “informant” that there was a stolen Dodge Ram in Mr. Maynard’s barn. Someone wanted police to find Mr. Lacroix’s allegedly stolen Truck in Mr. Maynard’s barn.

53A thief, allegedly Mr. Maynard, does not normally repeatedly report the location of a vehicle they have stolen. Someone in possession of stolen property does not normally repeatedly report their possession of the same to police. It would not have been in Mr. Maynard’s interest to report to the police the location of the reportedly stolen Truck, which police then found inside his barn. Mr. Maynard did not report to police that the Truck was stolen or in his possession. Mr. Maynard however alleges Mr. Lacroix accused him of tipping off police that the Truck was not stolen and was in his barn.

54On May 15, 2009, the Ontario Provincial Police searched the Mr. Maynard’s barn and located the Truck. The OPP looked for but did not find keys to the Truck. Mr. Maynard denied having keys to the Truck and advised the police that Mr. Lacroix had parked the Truck in his barn with the intention of picking it up later. Given the absence of keys, the police had the Truck towed from the Mr. Maynard property on May 15, 2009.

55Shortly thereafter Mr. Lacroix went to Mr. Maynard’s residence and learned that the Truck had been taken by police.

56Mr. Lacroix affidavit is silent as to:

a. Who stole the Truck, beyond his allegation that Mr. Maynard “perpetrated the theft”, that he or someone stole the Truck on March 23, 2009 and that Mr. Maynard subsequently pled guilty to possession of the Truck as stolen property;

b. How he learn that police had possession of the Truck.

57The police did not contact Mr. Lacroix advising him that they had the Truck. Mr. Lacroix after learning from Mr. Maynard that police had removed the Truck from his property had his lawyer call police. Mr. Lacroix then took the phone and advised that he had heard through the “grape vine” that “someone” had noticed the police following a tow truck which had the Truck and that Mr. Lacroix wished to arrange to pick it up. The likelihood of “someone” noticing and identifying the Truck being towed on a highway outside of Ottawa and then calling to report that to Mr. Lacroix is not credible.

58Mr. Maynard’s version that he told Mr. Lacroix that police had searched his property, found and then taken possession of the Truck is the much more credible explanation as to why Mr. Lacroix had his lawyer contact police in the belief that they had possession of the Truck. In summary, Mr. Lacroix learned from Mr. Maynard that the police had taken the Truck.

59Despite this news from Mr. Maynard, Mr. Lacroix then contacted police to pick up the Truck and did not allege that Mr. Maynard was the thief and had produced a second ignition key. Mr. Lacroix instead communicated his fabricated story of grape vine information of someone spotting the Truck being towed on highway 401.

60On May 22, 2009, Mr. Lacroix attended the police station, paid the towing fee and took possession of and drove away with the Truck. The police did not have an ignition key but Mr. Lacroix did. On Mr. Lacroix’s discovery, it was revealed that he had obtained back the Truck keys from Intact which is what he used to re-take possession from the police.

61Mr. Lacroix now in possession of the Truck, demanded to meet with Mr. Maynard. They met between May 22 and 28, 2009 and not June 9, 2009 as alleged by Mr. Lacroix. Mr. Lacroix accused Mr. Maynard of reporting to police that the Truck was located in Mr. Maynard’s barn, which makes no sense for the reasons stated. Mr. Lacroix admits he hit Mr. Maynard in the face on this occasion and subsequently pled guilty to assault.

62Mr. Maynard states that Mr. Lacroix told him he had sold the Truck to someone and was now indebted to repay some $5,000 he received from the purchaser who was threatening physical harm if that money was not repaid. Mr. Lacroix accused Mr. Maynard of causing the problem and demanded Mr. Maynard pay him $5,000.

63Mr. Lacroix alleges the $5,000 he demanded from Mr. Maynard was to pay for drugs Mr. Maynard purchased from Mr. Lacroix and for his legal fees associated with the Truck theft including investigation of Mr. Lacroix as to possibly attempting to defraud Intact and his claim for insurance payment from Intact. Mr. Lacroix filed no such legal accounts on his motion.

64In response to these monetary demands, Mr. Maynard gave his $946 paycheque to Mr. Lacroix. Mr. Lacroix admits receiving that cheque but alleges the $946 was partial payment of drugs he had sold to Mr. Maynard.

65Mr. Maynard alleges Mr. Lacroix told him he had to come up with the rest of the money failing which Mr. Lacroix threatened violence against him. Mr. Lacroix acknowledges he repeatedly demanded further payments from Mr. Maynard.

66Mr. Maynard on June 5, 2009 was charged with possession of stolen property, but not theft of the Truck. Mr. Maynard told police that Mr. Lacroix had parked the Truck temporarily at his home. Mr. Maynard subsequently pled guilty to possession of stolen property and was fined $1,500.

67Mr. Maynard alleges Mr. Lacroix threatened further harm if he did not pay Mr. Lacroix the full $5,000. Mr. Lacroix denies threatening Mr. Maynard, which is asking the Court to believe you will hit another person, demand money from them but not threaten further violence if payment is not forthcoming. I find Mr. Lacroix’s denial of threats in these circumstances lacks credibility.

68Mr. Lacroix during the summer of 2009 telephoned Mr. Maynard repeatedly demanding money. Mr. Lacroix admits he called Mr. Maynard frequently for payment of money. The plaintiff acknowledges he was with two counts of assaulting Mr. Maynard and two counts of extortion. Mr. Lacroix pled guilty to one count of assault and the other charges were dropped.

69Mr. Maynard states he obtained a $4,000 loan from his employer to pay Mr. Lacroix. Mr. Maynard states he called Mr. Lacroix, told him he had $4,000 and then met with Mr. Lacroix. Mr. Maynard states that Mr. Lacroix had an unidentified male with him in the restaurant parking lot for this meeting and this third person took possession of the $4,000 payment from Mr. Maynard on June 12, 2009, while Mr. Lacroix watched. Mr. Lacroix denies this June 12th meeting and the payment to him of $4,000.

70Mr. Maynard states Mr. Lacroix within two weeks thereafter insisted Mr. Maynard pay more money to cover Mr. Lacroix’s legal fees.

71On June 26, 2009, Intact denied Mr. Lacroix’s insurance claim on the basis that Mr. Lacroix had failed on a balance of probabilities to provide credible evidence that the Truck had been stolen by a third party.

72Mr. Maynard then to avoid Mr. Lacroix’s threats and beatings, began living at a friend’s residence. The friend confirmed to police that Mr. Maynard had been living at his home and Mr. Maynard’s statements to him that Mr. Lacroix had beaten him up several times and was threatening him.

73Ms. Allard and her friend Mr. Hawn were asked to and told Mr. Maynard that they would confront Mr. Lacroix, cause him fear and end his threats and violence to obtain more money from Mr. Maynard. Mr. Hawn had a gun with him which he showed to Mr. Maynard.

74On September 10, 2009, Ms. Allard telephoned Mr. Lacroix and asked him to come to the Mr. Maynard residence to settle the debt Mr. Lacroix alleged Mr. Maynard owed him. Mr. Maynard knew Mr. Hawn and Ms. Allard were going to meet with Mr. Lacroix and threaten him with the rifle if he did not stop his harassment and assaults of Mr. Maynard.

75On September 11, 2009, Mr. Lacroix attended Mr. Maynard’s home to receive the money. It is acknowledged that Mr. Maynard was not in attendance at this meeting between Ms. Allard, Mr. Hawn and Mr. Lacroix.

76Ms. Allard invited Mr. Lacroix into the house. Mr. Lacroix refused and remained outside. Ms. Allard sat on the front door step as she and Lacroix spoke.

77Mr. Hawn then exited the Maynard house, pointed a loaded gun at Mr. Lacroix and told him he had to leave Mr. Maynard alone, stop extorting money from Mr. Maynard and threatened to shoot Mr. Lacroix.

78In response, Mr. Lacroix knocked the shot gun to the ground and struck Mr. Hawn in the face with his right fist, knocking him down. As the gun lowered, it discharged. The two men then fought one another on the ground during which Ms. Allard moved the gun away from the men.

79Mr. Lacroix then got up and walked towards his vehicle. Mr. Hawn followed him. Mr. Lacroix hit Mr. Hawn once again, started his vehicle and then drove off.

80Seven gun pellets penetrated Mr. Lacroix’s leg. Mr. Lacroix on discovery described it as a flesh wound. Mr. Lacroix removed some gun pellets from his leg and reported the event via telephone to Ottawa police. Mr. Lacroix then drove to the hospital in Cornwall for medical treatment.

81On September 29, 2009, Police arrested Ms. Allard and Mr. Hawn in relation to their confrontation and the use of a firearm against Mr. Lacroix.

82Mr. Maynard was charged and pled guilty to conspiracy to commit an indictable offence, namely this assault of Mr. Lacroix for which he was sentenced to probation.

83Mr. Hawn and Ms. Allard were charged with multiple offences including attempt to commit murder, possession of firearms and dangerous weapons in relation to this assault and shooting of Mr. Lacroix.

KEYS OF THE TRUCK

84Returning again to the Truck’s ignition key; Mr. Lacroix’s theory of his case involves the following additional necessary facts:

a. Mr. Maynard getting hold of a Truck ignition key from Mr. Lacroix’s home during the night the Truck was allegedly stolen.

b. Mr. Maynard or someone then driving the Truck to and storing it in Mr. Maynard’s barn.

c. Despite the inevitable reporting by an owner of the theft of their vehicle to police, Mr. Maynard retained the Truck parked inside his barn for two months, rather than selling or disposing of this stolen and valuable vehicle;

d. After the police search and find the Truck in his barn, they then searched Mr. Maynard’s property but do not find its keys and therefore have the vehicle towed away, Mr. Maynard thereafter however retains possession of an ignition key despite it linking him to the robbery of his friend’s vehicle; and

e. Mr. Maynard two months after the Truck was allegedly stolen by him, then voluntarily without demand gives the Truck’s second ignition key to Mr. Lacroix which he thinks must have been mdae but cannot recall the details thereof.

85If it were true that Mr. Maynard unilaterally gave Mr. Lacroix the Truck ignition key, that:

a. would provide Mr. Lacroix with proof he could communicate to police and Intact and disprove the allegations he was being truthful in reporting the Truck stolen. Mr. Lacroix took no such action; and

b. with an ignition key in his possession, it would not have been necessary for Mr. Lacroix to request and then wait until Intact returned the Truck keys to him in order to take possession of the Truck from police.

86Mr. Lacroix did not contact and communicate Mr. Maynard’s allege possession of the Truck ignition key to Intact which had denied his claim because he lacked credible proof of theft. Recovering the insured value of the Truck, now returned, was no longer possible. Mr. Lacroix however had other residual damages he was claiming in relation to the alleged theft including damage to the vehicle.

87Despite those other losses and the police investigation of him as to a possible charge of defrauding Intact, Mr. Lacroix remained silent about Mr. Maynard’s allegedly production of an ignition key to Intact, the police and in his 2010 statement of claim until disclosure thereof in his 2012 examination for discovery, 3 years after the alleged theft of the vehicle.

88Mr. Lacroix after he took possession of the Truck from police May 15, 2009, then unilaterally returned the Truck to the finance company in anticipation of it being repossessed. Mr. Lacroix on discovery then stated he delivered possession of only one ignition key to the finance company. There was no purpose at that point in retaining a 2nd ignition key which he allegedly was given by Mr. Maynard.

89The above statements by Mr. Lacroix and his silence for three years about Mr. Maynard’s alleged possession and return of a second ignition key in the face of possible criminal charges for fraudulently reporting the Truck stolen and the denial of any coverage by Intact is not credible.

90Mr. Lacroix’s contradictory statements about and his silence for three years about Mr. Maynard giving him a second ignition key, corroborate Mr. Maynard’s version that:

a. Mr. Lacroix asked and Mr. Maynard permitted the Truck to be stored in his barn; and

b. Mr. Maynard did not steal the Truck and he did not break into Mr. Lacroix’s house and steal an ignition key in order to do so.

Maynard’s Guilty Plea to Possession to Stolen Property

91The obvious question is if he did not steal or was not involved in the theft of the Truck, why did Mr. Maynard plead guilty to a charge of possession of the stolen Truck?

92Mr. Maynard knew that Mr. Lacroix had reported the Truck stolen to police and was attempting to recover the insurance value thereof from Intact. Reporting that the Truck was not stolen created further confrontation with Mr. Lacroix who had already twice assaulted this defendant. Mr. Maynard’s knowledge that Mr. Lacroix had attempted to defraud Intact and his own assistance in that regard by storing the Truck in his barn; placed Mr. Maynard in further legal jeopardy.

93Mr. Maynard states that his lawyer advised him to plead not guilty to possession of stolen property; however the legal cost to pursue that defence would be approximately $25,000.

94The financial alternative was a fine $1,500 for a guilty plea to possession. His annual income as a plumber at the time was approximately $75,000.

95Mr. Maynard at the time had several prior convictions. Possession of the Truck would be another, however it only involved a fine of $1,500.

96It presumably is rare that an innocent person would plead guilty to a criminal charge. The circumstances facing Mr. Maynard however, namely Mr. Lacroix assaulting him several times, extorting money from him and threatening more violent if more money was not paid, the legal costs to defend himself and Mr. Maynard’s existing criminal record all make Mr. Maynard’s explanation as to why he pled guilty to possession of stolen property credible on the civil standard.

Conclusion as to the Truck

97Mr. Lacroix’s version of events in this proceeding is riddled with inaccuracies and contradictions. This Court has no difficulty in concluding that the Truck was placed in Mr. Maynard’s barn by the Plaintiff who then reported it stolen in order to recover the insurance proceeds from Intact and to enable him in addition to sell that vehicle and pocket the proceeds thereof. The Truck was not stolen by Mr. Maynard and the claims dependent upon or linked to that allegation are and will not be successful.

98Mr. Lacroix’s inability to continue to make the monthly financing payments was as a result of the downturn in the Alberta energy sector which Mr Lacroix indicated on discovery stated continued throughout 2009. His inability to resume work in Alberta and his resulting loss of income given he did not have possession of the Truck between the end of March and May 22, 2009, as well as his loss of the Truck due to defaulting finance payments are not the fault of any of the defendants.

99Mr. Lacroix produced an estimate from a June 2009 Chrysler dealership inspection report and cost estimate as well as its service invoice dated June 17, 2009. The cost of replacing badly rusted front brakes on a vehicle with 51,600 kilometers of driving across Canada several times and in energy construction fields and roads is not recoverable damages. The cost of repair of the front end steering linkage, the cost of an inspection sticker, an oil change and replacing a light bulb as appear on the only invoice filed, are not recoverable damages as against any defendant.

100There is no evidence that the missing brush bar and box rail were replaced or that the damaged cab corner was repaired prior to Mr. Lacroix delivering possession of the vehicle to the finance company. These are not damages recoverable against any of the defendants.

101Having falsely reported the Truck stolen defeats Mr. Lacroix’s claim against Intact that it was negligent and is somehow liable in damages as it knew or should have known that would lead him to Mr. Maynard, Mr. Hawn and Ms. Allard confronting Mr. Lacroix and the plaintiff being shot.

102Intact’s motion for summary judgment against Mr. Lacroix is granted. Mr. Lacroix’s corresponding summary judgment motion against Intact is dismissed. The plaintiff’s full claim against Intact is dismissed.

103The claim of Mr. Lacroix against Mr. Maynard in relation to the Truck and its theft and the latter’s possession of it as stolen property is dismissed. Mr. Lacroix’s motion as to the vehicle, its theft and Mr. Maynard’s possession thereof, the towing costs and his legal costs as to the theft, dealing with Intact and the police investigation of the plaintiff for attempting to defraud Intact and costs as to that part of his claim in this proceeding are dismissed.

Lacroix’s Other Damage Claims

104The purpose of Mr. Hawn and Ms. Allard’s meeting with Mr. Lacroix on September 10, 2009, according to the discovery of Mr. Maynard, was to rough up the plaintiff and cause him to stop further attempts to extract money from Mr. Maynard.

105Mr. Maynard knew that Mr. Hawn had and intended to show the rifle in the upcoming meeting between the plaintiff, Mr. Hawn and Ms. Allard.

106The plaintiff has not satisfied the court that the purpose of that meeting was to shoot and injure the plaintiff. The injury suffered by Mr. Lacroix occurred during his knocking the rifle from Mr. Hawn.

107The medical notes indicate that Mr. Lacroix suffered lacerations to his leg and that he refused medical treatment to remove the embedded pellets in his leg.

108Mr. Lacroix’s annual income tax returns demonstrate no loss of income in relation to the events as alleged in the statement of claim particularly given what occurred to the Alberta energy sector.

109Mr. Lacroix admits to being regularly employed beyond his periods of incarceration and house arrest. Mr. Lacroix had no plans to return to work in the energy fields of Alberta in 2009. The Truck was returned to him on May 22, 2009 and Mr. Lacroix remained in Ontario from the fall of 2009 up to and including his discovery examination in 2012.

110Mr. Lacroix described the pellet leg wounds as flesh wounds. The plaintiff has provided no jurisprudence to support any calculation of damages as to the physical injuries he suffered on September 10, 2009 as a result of the discharge of the shot gun.

111Mr. Hawn threatened Mr. Lacroix with violence. No evidence has been led beyond that threat, that violence would have occurred if Mr. Lacroix had not knocked the gun out of Mr. Hawn’s hands as part of Mr. Lacroix assaulting Mr. Hawn.

112As to the psychological injuries claimed by the plaintiff, Mr. Lacroix had and has no fear of Mr. Maynard whom he assaulted on several occasions during which Mr. Maynard on the evidence did not defend himself.

113Mr. Lacroix has presented no evidentiary grounds for his alleged fear or trauma regarding Ms. Allard, who he stated sat on the porch and removed herself during the September 10, 2009 shooting and fight between these two men.

114Mr. Lacroix at the request of defence counsel attended four meetings with a psychiatrist on August 4, 26, October 7, and 17, 2011.. The psychiatrist’s notes and assessment were attached to the affidavit of Mr. Lacroix.

115As an aside, these clinical notes indicate that Mr. Lacroix told the doctor that:

a. when he drove the Truck from Alberta back to Ottawa in late 2008, his intention was not to return to the energy fields of Alberta, thereby eliminating the need for the Truck for that purpose;

b. Mr. Lacroix was a dealer in drugs. Mr. Maynard was a drug dealer working for Mr. Lacroix

c. Mr. Lacroix had leant Mr. Maynard money over the year. Mr. Maynard owed the plaintiff by 2008 at least $10,000 which Mr. Lacroix was seeking to have repaid to him.

d. Mr. Lacroix left his $90,000 Truck in his driveway on the date it was stolen

116Mr. Lacroix could not recall if any medication was prescribed by this doctor and if so, whether he obtained or took medication related to the fear or anxiety he reported to the doctor in 2011.

117The evidence filed in support of Mr. Lacroix’s claim for psychological damage is problematic. No rule 53.03 expert report or affidavit of the physician was filed on this motion as required.

118Mr. Lacroix in argument states that the clinical notes of that psychiatrist during those four interviews do not contain medical opinion diagnosis issues of cause and effect, treatment or the like. This Court disagrees.

119The clinical notes of this psychiatrist state that the diagnosis in those clinical notes include the following diagnoses:

a. PTSD;

b. Adult ADHD;

c. Substance abuse;

d. Impulse control disorder;

e. Anti-social traits; and

f. Moderate stress.

g. SDF-30-40

120The Court in Mehdi-Pour v. Minto Developments Inc., 2010 ONSC 5414, Aff’d 2011 ONSC 3571 (Div.Ct,); leave to appeal refused, Oct 20, 2011, Docket M40188 (C.A.) as to the requirement of medical opinion evidence required on a summary judgment motion held:

39 The most significant problem with the plaintiffs' expert reports however is that they are not admissible on the motion as expert evidence. Expert evidence can be considered on a motion but it is subject to all of the usual requirements. For example the expert must be qualified to give the opinion, the opinion must be necessary to the determination of the point at hand and the expert must be sufficiently neutral that the evidence is trustworthy. The court has repeatedly held that appending an expert report to the affidavit of a non-expert is not the proper manner to put expert opinion into evidence.

40 A report attached to the affidavit of a lay witness is nothing more than evidence that on the date set out in the letter the author of the letter was prepared to write it. It is perhaps evidence of why the lay witness believes something to be true but it is not expert evidence. Even if it is technically admissible under Rule 39.01(4) it can only be evidence of the belief of the deponent. Such evidence cannot possibly be of the same strength as an affidavit from the expert on which the expert could be cross examined.

121Given the opinion diagnoses evidence therein, an affidavit and expert’s report as to this evidence was required.

122Mr. Lacroix on this motion has failed to prove his claim of psychological injury and resulting damages therefrom. He failed to present any jurisprudence in support of those damages or his physical injuries. His motion for summary judgment as to those damages is therefore dismissed as against all defendants for the above reasons.

123Mr. Lacroix’s claims for damages as to physical and psychological injuries may proceed to trial as against Mr. Maynard and as against Mr. Hawn and Ms. Allard on an uncontested basis.

124Incorporating the above conclusions, Mr. Lacroix’s summary judgment motion is dismissed. Incorporating those conclusions, Mr. Maynard’s motion is partially successful and partially dismissed.

Costs

125A party seeking costs has 30 days to submit short written submissions. Responses thereto are due 20 days thereafter. Any reply to such response is due within 10 days thereafter.