Court File and Parties

COURT FILE NO.: 59811 DATE: 20170309 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Margret Kabutangana, and Sharon Natukanda and Wilson Kabutangana, by their litigation guardian, Margret Kabutangana, Plaintiffs AND: Coachman Insurance Company, Defendant

BEFORE: Justice A. K. Mitchell

COUNSEL: K. Arvai, for the plaintiff O. Guillaume, for the defendant

HEARD: March 3, 2017

Endorsement

Overview of the Motions

[1] The defendant brought a motion to amend its statement of defence returnable January 10, 2017. On that date, a special appointment was scheduled and a certificate of readiness was filed by counsel certifying the parties would be ready to proceed on the scheduled return date and providing a timeline for all remaining steps including the filing of responding and reply materials and conducting cross-examinations.

[2] The plaintiff filed responding materials in opposition to, only, the proposed amendments contained in paras. 3 and 4 of the Fresh as Amended Statement of Defence taking the position the effect of these amendments is to withdraw admissions made by the defendant in para. 3 of p. 2 [^1] of the Statement of Defence. The plaintiff does not oppose the balance of the Fresh as Amended Statement of Defence.

[3] Out of an abundance of caution, the defendant filed an amended Notice of Motion seeking, in the alternative, leave of the court to withdraw any admissions contained in para. 3 of p. 2 of the Statement of Defence.

[4] Cross-examinations took place on January 31 and February 1, 2017 and included the cross-examination of the defendant’s former counsel, Leslie Wright, a representative of Coachman Insurance, Shafik Daudji, and counsel for the plaintiff, and the affiant of the affidavits in support of the plaintiff’s position on the motion, Chris Nicolis.

[5] Following cross-examinations, additional affidavit evidence was filed by the plaintiff to respond to issues raised during cross-examinations and to supplement the documentary record.

[6] Filing of this additional affidavit evidence after cross-examination was not permitted by the agreed timeline nor the rules and the defendant opposed its introduction. The plaintiff brought a motion pursuant to r. 39.02(2) seeking leave to file this additional evidence. This preliminary motion was dealt with in advance of the main motion.

Background

[7] This action involves a claim for damages arising from a motor vehicle accident which occurred on October 7, 2006. The plaintiff, Margret Kabutangana, alleges she was forced off the road by an unidentified motor vehicle who was attempting to pass vehicles in the opposing lane of traffic. This unidentified automobile was is alleged to have been travelling in the plaintiff’s lane of traffic. To avoid a head-on collision she directed her vehicle to the shoulder of the road where she lost control and her motor vehicle ended up in the ditch. As a result, the plaintiff alleges she has suffered serious and permanent injuries.

[8] The statement of claim was issued on October 17, 2008 [^2] and the statement of defence was served on April 15, 2009. The minor plaintiffs have since abandoned their claims.

[9] The plaintiff claims under her own policy of insurance. In particular, she seeks coverage for her claims under the unidentified motorist provision of her policy.

[10] The plaintiff was examined for discovery on December 9, 2009. The defendant provided written answers to discovery questions on December 30, 2011 and the action was set down for trial on January 30, 2012.

[11] The action has been pre-tried twice – on October 22, 2015 and on December 2, 2016. The defendant changed lawyers on January 15, 2016. Ms. Wright has since retired.

[12] This action has been scheduled for trial on two prior occasions (October 15, 2013 and January 18, 2016). Most recently, the trial was adjourned to the May 23, 2017 sittings.

Rule 39.02(2) – Leave to introduce additional evidence following cross-examinations

[13] Rule 39.02(2) prohibits a party to deliver an affidavit for use on the hearing of the motion following cross examinations on affidavits delivered by an adverse party without leave of the court. Rule 39.02(2) further provides that leave shall be granted on such terms as are just where the court is satisfied that the party ought to be permitted to respond to any matter raised on the cross-examination with further affidavit evidence.

[14] A flexible, contextual approach is to be taken in assessing the criteria relevant to rule 39.02(2), having regard to the overriding principle outlined in r. 1.04 of the Rules of Civil Procedure that the rules are to be interpreted liberally to ensure a just, timely resolution of the dispute. An overly rigid interpretation can lead to unfairness by punishing a litigant for an oversight of counsel. [^3]

[15] The additional evidence filed following cross-examinations did not “ambush” the defendant or cause the defendant any prejudice. The additional material served to merely supplement the existing documentary record. For example, complete copies of pre-trial memoranda filed by the parties in 2015 and 2016 were filed together with a copy of the endorsement of Justice Hebner dated September 25, 2015. But for the psychological expert reports which are irrelevant to a determination of the issues on the motion, the balance of the documents were either known to the defendant and in its possession or formed part of the court file. Cross-examination on this additional affidavit evidence is not required.

[16] Leave was granted pursuant to r. 39.02(2) to file the additional affidavit evidence.

Motion for Leave to Amend the Statement of Defence/Motion for Leave to Withdraw Admissions

The Test

[17] Rule 26 is mandatory unless prejudice will arise that cannot be compensated for by costs or an adjournment. However, if the proposed amendments have the effect of withdrawing an admission, r. 51.05 takes precedence and the moving party must first obtain leave to withdraw the admission (by satisfying the three-part test established in [Antipas v. Coroneos][^4]) before leave will be granted to amend the moving party’s pleading.

Threshold Issue

[18] A threshold issue has arisen. That issue is: Has the defendant made any admission in para. 3 of p. 2 of its statement of defence from which it now seeks to resile which triggers the application of r. 51.05?

Parties’ Positions

[19] Paragraph 3 of p. 2 of the Statement of Defence states as follows:

The defendant denies that the motor vehicle collision referred to in the statement of claim was caused solely by reason of the negligence of an unidentified driver. (emphasis added)

[20] The plaintiff argues that, implicit in the use of the word “solely”, are the following two admissions:

(i) An unidentified motor vehicle was involved in the accident; and (ii) The unidentified motorist caused and contributed to the damages suffered by the plaintiff in the accident. That is, the unidentified motorist is admitted to have been contributory negligent.

[21] In response, the defendant denies it made the foregoing admissions, or either of them, and argues that any admission in a pleading cannot be inferred rather it must be unequivocal and deliberately made.

[22] The defendant submits that para. 3 of p. 2 contains a specific denial of the allegations contained in para. 6 of the statement of claim. The word “solely” mirrors the wording used by the plaintiff in para. 6.

Analysis of the Threshold Issue

[23] The oft-quoted definition of an admission is “an unambiguous deliberate concession to the opposing party.” [^5] As was noted in [Soxonchuk v. Polych][^6]: “[i]n order to constitute an admission in a pleading under our Rules, the admission must be both unambiguous and deliberately made by the party pleading it as a concession to its opponent.”

[24] It cannot be said that the “admissions” which the plaintiff asks that I infer from the language used in para. 3 of p. 2, are unambiguous and deliberate. To the contrary, para. 3 is a specific denial of the allegation found in para. 6 of the statement of claim. Nothing can be inferred from this specific denial. Certainly not admissions of the kind suggested by the plaintiff.

[25] Moreover, para. 1 of the statement of defence states:

Except as may be specifically admitted herein , the defendant denies the allegations contained in the statement of claim. (emphasis added).

[26] Paragraph 3 of p. 2 cannot be taken in isolation rather must be considered in the context of the pleading as a whole. Admissions of all facts that are not specifically denied cannot be construed from a specific denial. To give effect to the plaintiff’s argument would render para. 1 meaningless.

[27] By contrast, the defendant makes an unambiguous and deliberate admission in para. 2 of the statement of defence wherein it admits to insuring the plaintiff pursuant to a standard policy of automobile insurance, which policy included uninsured motorist coverage. It is trite to say that statement meets the test for an admission - it uses the word “admit”.

[28] The “admissions” if they were made were not deliberate. The defendant’s former counsel, Ms. Wright, testified that she did not have instructions to concede the involvement of an unidentified motorist [^7] and she did not intend to make such an admission in the statement of defence if in fact one was made. Her stated intention is corroborated by the pre-trial memorandum she prepared in 2015 which raises the issue of the statutory burden on the plaintiff to establish the involvement of an unidentified driver through corroborating evidence in order to succeed in her damage claim in excess of $200,000. The defendant’s position as set forth in its 2015 pre-trial memorandum directly contradicts an admission regarding the involvement of an unidentified driver. The plaintiff should have objected at the October 2015 pre-trial and raised the issue at that time. It is an irrelevant distinction whether the issue of the involvement of an unidentified driver was raised by the defendant in the context of the issue of the quantum of damages rather than the issue of liability. The need for corroborating evidence remains the same.

[29] Further evidence to support a finding that the concessions, if any, were not deliberate rather were unintended can be found in the defendant’s answers to written discovery questions. In response to a request for the evidence upon which the defendant relies in support of para. 3 of p. 2, the defendant provided the following answer:

Paragraph 3 on page 2 of our statement of defence is a denial of the involvement of an unidentified vehicle. Coachman may rely on the police investigation, the evidence given by the plaintiff on her examination for discovery and the property damage documentation. (emphasis added)

[30] The defendant’s written answers to discovery questions were provided to and known to the plaintiff on or about December 30, 2011 – more than 5 years ago and before the action was set down for trial.

[31] I find that no admissions are contained in para. 3 of p. 2 and, therefore, r. 51.05 (and the case law relating thereto) has no application.

Leave to Amend – Prejudice to the Plaintiff

[32] In this litigation, the plaintiff has proceeded on the assumption that the language used in the specific denial contained in para. 3 of p. 2 of the Statement of Defence constituted an admission(s). The lack of the word “admit” and use of the word “deny” should have alerted the plaintiff to the need for clarification of the defendant’s position. The obligation rested with the plaintiff to seek such clarification.

[33] In preparation for trial, a formal Request to Admit could have been served by the plaintiff yet at no time has a request to admit been served containing these or any admissions. Instead, the plaintiff proceeded blindly and blissfully along despite: (i) the clarification by the defendant of its position set forth in its written discovery answers provided to plaintiff’s counsel in December 2011; (ii) the blanket denial contained in para. 1 of the statement of defence; and (iii) her statutory obligation to obtain corroborating evidence to prove her damage claim in excess of $200,000.

[34] If the amendments are granted, the plaintiff remains in the same position she has been throughout the litigation. Provided she caps her damages at $200,000, she can rely on her own evidence regarding the involvement of an unidentified motorist. [^8] She does not require an accident reconstruction expert. The plaintiff argues that if the jury does not believe her evidence she will lose the case without corroborating evidence. That is true and always has been true. The plaintiff’s credibility is important to establish all facts necessary to prove her case. She runs the risk of the jury not believing her, regardless of the amendments.

[35] Throughout the litigation, the plaintiff has claimed damages in excess of $200,000. If she chooses not to cap her damages (which she has not done to date), she has a statutory obligation to obtain corroborating evidence of the involvement of an unidentified automobile. The plaintiff should have proceeded long before now to obtain such corroborating evidence. She failed to do so and has done so at her own peril.

[36] In fact, the defendant’s amendment motion is of benefit to the plaintiff. But for this amendment motion, the issue of whether or not para. 3 of p. 2 contained admissions would have been litigated at the commencement of trial. Neither Ms. Wright nor the defendant’s present counsel had conceded the issue. Had the ruling not gone in favour of the plaintiff, she would have had to rework her entire trial strategy on the eve of trial. A further adjournment would not likely have been granted in the circumstances. She now has the ruling in hand and can prepare for trial accordingly.

[37] I find that the plaintiff will suffer no prejudice should leave be granted to amend the statement of defence.

Disposition

[38] Motion granted. Order to issue granting leave to the defendant to amend its statement of defence in the form of the Fresh as Amended Statement of Defence found at Tab 3 of the Motion Record dated December 22, 2016.

[39] If the parties cannot agree, written costs submissions may be submitted in accordance with the following timetable:

(a) the defendant shall file its costs submissions, not to exceed 3 pages in length (exclusive of any Costs Outline, time dockets and case law), within 7 days; (b) the plaintiff shall file her responding costs submissions, not to exceed 3 pages in length (exclusive of any Costs Outline, time dockets and case law), within 7 days thereafter; and (c) any reply submissions not to exceed 2 pages in length within 5 days thereafter.

“Justice A. K. Mitchell” Justice A. K. Mitchell Date: March 9, 2017

Footnotes

[^1]: There is also a paragraph 3 at page 3 of the Statement of Defence. [^2]: A Notice of Action was issued on October 3, 2008. [^3]: First Capital Realty Inc. v. Centrecorp Management Services Ltd., 2009 ONSC 5900 (Div. Ct.) at para. 14. [^4]: Antipas v. Coroneos, [1988] O.J. No. 137 (H.C.J.). [^5]: Hughes v. Toronto-Dominion Bank at para. 10. See also: Griffiths v. Canaccord Capital Corp. at para. 19. [^6]: Soxonchuk v. Polych, 2011 ONSC 449 at para. 10. [^7]: Her evidence in this regard was corroborated by Mr. Daudji. [^8]: Plaintiff’s counsel advised during argument that the plaintiff does not intend to pursue a damage claim in excess of $200,000, yet her formal position has been unequivocal – she is not conceding the damages issue. In a response to the defendant’s request to admit that the maximum amount available to respond to any proven claims in this action under the policy of automobile insurance issued by the defendant to the plaintiff is $200,000 plus costs, the plaintiff refused to admit the truth of that fact and responded: The request is improper and not relevant to the issues in dispute.