Hammond v. Peabody, 2017 ONSC 4654
BARRIE COURT FILE NO.: CV-12-1272
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Nicholas Hammond, Plaintiff
AND:
Ian John Peabody, Economical Mutual Insurance Company and Waterloo Insurance Company, Defendants
AND:
TD Home and Auto Insurance Company, added by order pursuant to Section 258(14) of the Insurance Act, R.S.O. 1990 C.1.8, Third Party, Statutory Third Party
BEFORE: THE HON. MADAM JUSTICE S.E. HEALEY
COUNSEL: S. Henry, Counsel for the Plaintiff
J. Henderson, Counsel for the Defendant, Economical Mutual Insurance Company
HEARD: July 31, 2017
ENDORSEMENT ON MOTION
1This is a motion brought by the plaintiff for rulings in respect of a motion for summary judgment brought by Economical Mutual Insurance Company ("Economical"), the latter of which was not before me today.
2In its summary judgment motion, Economical seeks a finding from the court on the factual/legal issue of whether the plaintiff was an "insured person" under the OPCF-44 Family Protection Coverage of the automobile insurance policy issued by Economical to its insured, Alin Kader, the owner of Huronia Van Lines. Specifically, Economical seeks a finding that the plaintiff was not an insured person as defined because he was: i) not an employee of Huronia Van Lines; and/or ii) he was not provided with regular use of the insured's vehicles.
3In the motion before me for determination, the plaintiff seeks the following orders:
An order that Economical's motion for summary judgment be dismissed;
In addition, or in the alternative, an order that the affiants are not entitled to present viva voce evidence before the motion judge;
An order that Economical's underwriting file be produced forthwith; and
An order for cross-examinations on the affidavits filed for the summary judgment, and a timetable for completion of steps.
4The parties have resolved the plaintiff's motion in part, and accordingly the following relief is ordered on consent:
Economical shall produce its underwriting file for the period 3 years pre-accident and 1 year post-accident, and those documents that specifically reference the plaintiff;
The parties shall adhere to the following timetable:
i) service of plaintiff's affidavit material by August 31;
ii) completion of cross-examinations by September 20;
iii) service of defendant's factum by September 30;
iv) service of plaintiff's factum by October 10; and
v) service of defendant's reply, if any by October 15.
- Mr. Alin Kader shall attend for cross examinations in response to any Notice of Examination served on him.
5With respect to the remaining two requests in the plaintiff's motion, the plaintiff primarily argues that this court should conclude, based on the evidence filed both for the summary judgment motion and on this motion, that there are credibility issues that will be unresolvable without a trial. This conflicting evidence goes to the determination of the plaintiff's status as an employee versus independent contractor, and the extent to which he was provided with use of the moving trucks used in Huronia’s business operations. The plaintiff argues that the evidence is so diametrically opposed that such issues will not be able to be determined even with the expanded powers under Rule 20.04. Further, he argues that this court should prohibit the calling of oral evidence on the basis of fairness and proportionality. The plaintiff argues that he should not have to face further evidence called at the summary judgment motion in addition to the affidavits and cross-examination transcripts. He also takes the position that proportionality requires that the additional time required for oral evidence is not merited given that, in his view, it is obvious that the case must proceed to trial.
6Mr. Henry relies on jurisprudence from the Ontario Court of Appeal, which he submits stands for the proposition that significant credibility conflicts in the evidence on a motion for summary judgment requires that the matter proceed to trial: Trotter v. Trotter, 2014 ONCA 841; Baywood Homes Partnership v. Haditaghi, 2014 ONCA 450; and Lesenko v. Guerette, 2017 ONCA 450. I agree with Mr. Henry that these cases require a judge hearing a motion for summary judgment to assess credibility carefully, adequately explain how he or she resolve such issues and to require a trial where, even after the use of the court's expanded powers, the credibility issues require a trial. However, I conclude that it would be an error for this court to dismiss Economical's summary judgment motion on the basis of vastly divergent points of view about the plaintiff's work activities and vehicle use during his involvement with Huronia.
7The reasons for this are many. Primarily, there have been no cross examinations conducted of the affiants, therefore the record is not complete. The parties have now agreed on a timetable to complete same. The evidence that may emerge from such cross- examinations is pure speculation, but without it, it would be premature to reach the foregone conclusion that the motion judge will be unable to evaluate credibility. As such, it would be premature to grant the relief requested by the plaintiff.
8Second, if the motion judge is unable to make determinations of credibility on the record, he or she has the power under Rule 20.04 (2.2) to order that oral evidence be given. This leads to the plaintiff's second request on this motion - that Economical be prohibited from presenting oral evidence. I do not have the authority to usurp the powers given by Rule 20.04 to the motion judge. He or she may find such a step to be appropriate to determine whether there is a genuine issue for trial. Ultimately, the exercise of such power may provide the judge with the evidence by which the competing versions of events may be understood, and the necessary facts determined.
9Mr. Henry argues that there are no reported cases in which Rule 20.04 (2.2) has been employed, other than Kristensen v. Schisler, 2014 ONSC 1976, and argues that Kristensen is distinguishable on its facts. Regardless, the rule is clear that the power exists to direct oral evidence. Further, Hryniak v. Mauldin, [2014] S.C.R. 87 leaves no doubt that the decision to allow oral evidence rests with the motion judge (para. 61), and that permitting such oral evidence can be used "to promote the fair and just resolution of the dispute in light of principles of proportionality, timeliness and affordability" (para. 65).
10Third, the summary judgment motion raises both factual and legal arguments. The definition of "insured person" under the policy will require the application of the law to the facts as may be found by the motion judge. That law is not before me on this motion. If the judge is able to make factual findings, then ultimately the interpretation and application of the law to the facts will determine the motion. I am not able to carry out such an exercise on this motion.
11Fourth, the fact that a jury notice was filed by Economical will not rule the day on this motion. The law does not prohibit a party who files a jury notice from bringing a motion for summary judgment; Wardak v. Froom, 2017 ONSC 1166, at para. 42, and cases cited therein. The judge hearing the summary judgment motion must, according to those authorities, simply consider the jury notice when deciding whether to use the expanded fact finding powers. Again, that is a question for the motion judge’s consideration, not mine.
12Last, in terms of proportionality, there are no clear efficiencies in pre-empting the summary judgment motion or limiting its scope by prohibiting oral evidence, even if I had the jurisdiction to do the latter. The plaintiff claims damages for a brain injury and its sequelae, he has been declared catastrophically impaired, and Mr. Henry submitted that his damages will be calculated in the millions of dollars because the plaintiff will never work again. This will therefore be a lengthy personal injury trial. While Mr. Henry argues that the summary judgment motion is an unnecessary step that will prolong an already lengthy proceeding and cause unnecessary costs, I cannot agree. Economical's motion, if successful, will eliminate the entire trial. Further, even if the summary judgment motion is lengthened due to the motion judge permitting the calling of oral evidence, that too will be less costly than a trial. Ultimately, the motion judge will make that call after evaluating the paper record, and weighing whether the interests of justice require and merit the hearing of oral testimony.
13For the foregoing reasons the relief requested in paragraphs 1 and 2 of the plaintiff's Notice of Motion dated July 10, 2017 is dismissed.
14As this was a discrete interlocutory motion, it is appropriate for the court to fix costs in favor of Economical at this time. If the parties are unable to reach an agreement on costs, they may contact the trial coordinator to arrange a date for oral submissions.
HEALEY J.
Date: July 31, 2017