Court File and Parties
COURT FILE NO.: CV-12-460521 DATE: 20181009 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
JOYCE HALL and KARINE MURRAY Plaintiffs – and – ELISHA CAMILLEA SHEARER and MARIA CONCETTA COSTANTINO Defendants – AND – MINISTER OF FINANCE Plaintiff – and – ELISHA CAMILLEA SHEARER and MARIA CONCETTA COSTANTINO Defendants
Counsel: Daniel Fenwick, for the Plaintiff (Minister of Finance) Elisha Camillea Shearer, appearing in person
HEARD: August 24, 2018
HOOD J.
Reasons for Decision
Overview
[1] This is a motion by Elisha Remilekum Eniolorunda, formerly known as Elisha Camillea Shearer (“Shearer”), to set aside a judgment against her in the amount of $110,000, inclusive of pre-judgment interest and costs, dated June 6, 2016.
[2] Ms. Shearer was named as a defendant in an action with the same court file number, which was styled as:
Joyce Hall and Karine Murray vs. Elisha Camillea Shearer and Maria Concetta Constantino
[3] The judgment against her, dated June 6, 2016, was granted in the above styled action.
[4] Ms. Shearer argues that she was never served with the Statement of Claim in this action or with any other documents related to the action and as a result it should be set aside.
[5] The Minister of Finance (“Minister”) apparently made payment out of the Motor Vehicle Accident Claims Fund (“the Fund”) in or around August 31, 2016 to the plaintiffs in this action, Ms. Hall and Ms. Murray. No actual proof of payment was provided, however that does not appear to be an issue before me. Both parties argued the matter before me premised on payment having been made.
[6] For the following reasons the motion is dismissed.
Facts
[7] On February 16, 2012 Ms. Shearer was driving her co-defendant’s car. While making a left hand turn at a light she hit the plaintiff, Joyce Hall. In her affidavit Ms. Shearer admits this.
[8] In her affidavit she says that Joyce Hall was only slightly hit and that Ms. Hall was perfectly fine after the accident.
[9] In the Minister’s responding material, at paragraph 5 of the affidavit of Victoria Henderson, Ms. Henderson states:
“At the time of the Accident, Ms. Shearer, the driver, and Ms. Costantino, the owner, were not insured under any valid policy of insurance. It was determined that there was no coverage afforded to the Plaintiff. As such, pursuant to s.8(2) of the Motor Vehicle Accident Claims Act, R.S.O. 1990 c.M41, Loudon Sterling LLP was retained to represent the Ontario Government and defend the action of behalf of the uninsured Defendant driver.”
[10] As stated in this affidavit, neither Ms. Constantino, the owner of the car being driven by Ms. Shearer, nor Ms. Shearer herself, had any motor vehicle insurance. Ms. Shearer admitted this during her cross-examination of June 15, 2018 at page 28 of the transcript, question 124. At page 32 of the transcript, question 150, she admitted that she had no current access to insurance.
[11] Ms. Shearer says that she was not served with the claim and as a result, was unaware of it and did not defend it. She wants the judgment set aside so that she can now defend it. Arguably, service of the Statement of Claim on Ms. Shearer, pursuant to Rule 16.03(5), was not effective and valid service as Ms. Shearer was not living at 503 – 31 Fair Oaks Place in August of 2012, and the Claim was never given to her by her sister, Shasha David. On her cross-examination her evidence was initially unclear, but at question 70 she stated that in August of 2012 she was not living at this address. At question 68 she stated that she did not receive anything from Ms. David.
[12] However, that is not the real issue in this case. It is not a question of whether or not Ms. Shearer received service, but a question of whether Ms. Shearer had insurance. She admits that she did not. Nor did the car owner.
[13] In cases where claims are brought against uninsured defendants, the Minister is entitled to step into the proceedings. Pursuant to s. 8(2) of the Motor Vehicle Accident Claims Act (“the Act”), upon receiving notice from the plaintiff the Minister has the right to, among other things, file a defence, take such action as they considers appropriate on behalf of the defendant and ultimately consent to judgment in such amount as they may consider proper in the circumstances. Any acts of the Minister in this context are deemed to be the acts of the defendant pursuant to s. 3(1) of the Act.
[14] That is what happened here. Ms. Shearer did not defend the claim against her, so a notice was given to the Minister. A defence was filed for Ms. Shearer as she had no insurance. In the defence, the Minister pled on behalf of Ms. Shearer, among other things, that the plaintiff did not suffer the damages or injuries alleged but that if she did, they were caused or contributed to by her own negligence. This is what Ms. Shearer argued before me, and what she set out in her affidavit. Her defence, had she been aware of the claim, would have been the same, namely, that Ms. Hall was absolutely fine after the accident, and that while there was an accident, there were no damages. Discoveries were scheduled. Eventually a settlement was reached on March 8, 2016 pursuant to Minutes of Settlement whereby Ms. Hall was to be paid $90,000 in damages, her daughter, Ms. Murray, was to be paid $2,000 in Family Law Act damages, and Ms. Hall was to be paid $18,000 in costs, for a total of $110,000. The Minister was fully within their rights to consent to a judgment in such amount.
[15] A judgment to that effect was signed on June 6, 2016. The Minister came to the conclusion, as they were entitled to do, that the settlement was proper in all the circumstances.
[16] Under s. 10(1) of the Act, the Registrar of Motor Vehicles was obligated to suspend Ms. Shearer’s driver’s license following payment of the judgment amount from the Fund. Under s. 10(2) of the Act the Registrar would not be able to suspend her license if she had had motor vehicle insurance at the time of the accident in 2012. But, as she admitted, she did not have any insurance at the time.
[17] Having complied with the Act there is no basis upon which to set the judgment aside. While Ms. Shearer has no entitlement to set the judgment aside, she is not without recourse. Section 11.1 of the Act provides an avenue for her to negotiate payment of a lesser amount than the full judgment against her. Further, under s. 3(1) of the General Regulation to the Act, R.R.O. 1990, Reg. 800: General, she may apply for restoration of her license, if she wishes to, upon beginning payments in instalments of the owed amount. The Director of the Fund may permit Ms. Shearer to make payments in instalment amounts that would not cause her undue financial hardship under s. 4(3) of the General Regulation.
[18] Counsel for the respondent advised the court that if successful the Minister would not be seeking costs. Accordingly, the motion is dismissed on a without costs basis.
HOOD J.