Court File and Parties

Court File No.: CV-14-518370 Date: 2018 1114 Ontario Superior Court of Justice

Between: Alex Lorne Vahey, Plaintiff – and – Eric Colson and P.C.A. Adjusters, Defendants

Counsel: Alex Vahey, in person Miranda Serravalle, for the Defendants

Heard: November 5, 2018

Reasons for decision Nishikawa J.

Overview

[1] The Plaintiff, Alex Vahey, commenced this action against the Defendants, Eric Colson and P.C.A. Adjusters Limited (together, the “Defendants”) for breach of contract. Mr. Vahey seeks damages for the Defendants’ role in adjusting his insurance claim after an oil leak at his home at 1201 Marble Lake Road in the township of Gananoque (the “Premises”).

[2] The Plaintiff has also commenced a separate action against his insurer, Grenville Mutual Insurance Company (“Grenville”) and the remediation contractor, Concord Engineering (“Concord”).

[3] The motion was originally scheduled to proceed on June 20, 2018. On that date, I adjourned the motion to allow Mr. Vahey to retain counsel and to serve responding materials. Despite the adjournment, Mr. Vahey did not retain counsel or serve any responding materials for the motion. At the hearing, he described his efforts to find counsel and advised that he would be meeting with a lawyer later that day. I determined that it was nonetheless appropriate to proceed with the hearing of the motion because the Plaintiff has been seeking counsel since he dismissed his previous lawyer over one and a half years ago, and since the adjournment was peremptory to the Plaintiff. Mr. Vahey advised that he did not oppose the Defendants’ motion, but that he had objections to certain of their arguments.

[4] For the reasons that follow, I grant the Defendants’ motion for summary judgment dismissing Mr. Vahey’s claim. There is no genuine issue requiring a trial as to the Defendants’ liability for breach of contract.

Factual Background

[5] On June 25, 2012, the Plaintiff became aware of fuel dripping from the motor cover of the furnace of his home heating system at the Premises. He reported the oil leak to his property insurer, Grenville. The Plaintiff’s home insurance policy provided coverage for property damage up to $228,000.

[6] Grenville retained the Defendants to adjust the remediation of the oil spill. The Defendants retained Concord to direct the remediation.

[7] On June 29, 2012, the Technical Standards Safety Authority (the “TSSA”) issued an order requiring the Plaintiff clean up the spill and provide the TSSA with a report outlining the extent of the contamination and the steps taken to remediate it.

[8] The Defendants investigated the loss and conveyed recommendations on how to proceed from Concord to Grenville. It became apparent to the Defendants and Concord that it would be difficult to remediate the oil spill within the policy limit. On July 3, 2012, the Defendants wrote to the Plaintiff confirming the policy limit. The Defendants asked Concord to provide remediation options that would be in keeping with the policy limits.

[9] On July 25, 2012, Mr. Vahey vacated the premises and moved into a motel. The insurance policy covered the cost of his accommodation, with the exception of a $500 deductible.

[10] In addition, the Defendants, Concord and Mr. Vahey had various discussions as to how to remediate the oil spill in a cost-effective manner. For example, on September 13, 2012, Mr. Colson and a representative of Concord met with Mr. Vahey. They agreed that Mr. Vahey would perform some of the work so that the policy funds could be spent on the remediation. This work included removing a chimney and replacing the fuel oil system. It is undisputed that Mr. Vahey did not do this work.

[11] In November 2012, the Ministry of the Environment (the “Ministry”) provided recommendations based on its review of Concord’s first remediation report.

[12] On or about January 17, 2014, the Ministry wrote to Mr. Vahey to advise that no further remediation or monitoring activities were necessary. The Ministry reviewed the results provided by the Defendants and agreed that the remediation met the applicable standards.

[13] On June 9, 2014, the Plaintiff was offered the remaining balance on the insurance policy but refused the funds and refused to sign the applicable proof of loss.

Issues

[14] The issues in this motion for summary judgment are whether there is a genuine issue requiring a trial in respect of Mr. Vahey’s claim for breach of contract. The Defendants also submit that the Plaintiff’s claim is statute-barred under the Limitations Act, 2001, S.O. 2002, c. 24, Sched. B.

Analysis

The Parties’ Positions

[15] The Plaintiff submits that he suffered a personal injury due to the Defendants’ breach. Specifically, he attended his house after the spill and suffered three “violent” sneezes as a result of the fumes. This led to vision loss and required that he undergo surgery multiple times. Mr. Vahey also complains about the manner in which the Defendants treated him.

[16] The Defendants submit that the Plaintiff’s claim for breach of contract must fail because they never entered into a contract with Mr. Vahey. The Defendants further submit that even if the Statement of Claim is read generously to include a claim for negligence, they owed no duty of care to Mr. Vahey.

Principles Applicable to Summary Judgment

[17] Rule 20.04(2)(a) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, states that a court shall grant summary judgment if the court is satisfied that there is no genuine issue requiring a trial with respect to a claim or defence.

[18] The Supreme Court of Canada has held that “summary judgment rules must be interpreted broadly, favouring proportionality and fair access to the affordable, timely and just adjudication of claims.” Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87, at para. 5. An issue should be resolved on a motion for summary judgment if: (i) the motion affords a process that allows the judge to make the necessary findings of fact, (ii) apply the law to those facts, and (iii) is a proportionate, more expeditious, and less expensive process to achieve a just result than going to trial: Hryniak, at para. 49.

[19] On a motion for summary judgment, the judge must first determine whether there is a genuine issue requiring a trial based only on the evidence before him or her, without using their fact-finding powers. If there appears to be a genuine issue requiring a trial, the judge should then determine if the need for a trial can be avoided by using the powers under rr. 20.04(2.1) and (2.2): Hryniak, at para. 66.

[20] On a motion for summary judgment, the court is entitled to assume that the record contains all the evidence that the parties would present if the matter proceeded to trial: Sweda Farms Ltd. v. Egg Farmers of Ontario, 2014 ONSC 1200, [2014] O.J. No. 851, at paras. 26-27, aff’d 2014 ONCA 878, [2014] O.J. No. 5815, leave to appeal to SCC refused, [2015] S.C.C.A. No. 97. Each party must “put their best foot forward” with respect to the existence or non-existence of material issues to be tried: Hryniak, at paras. 57, 66; Sweda, at para. 26.

Did the Defendant Breach a Contract?

[21] The Statement of Claim, which was drafted by Mr. Vahey’s counsel at the time, alleges that the Defendants breached their contract with the Plaintiff by failing to remediate the property in a cost effective manner, by failing to repair certain damage and by failing to pay for his living expenses. The Statement of Claim further alleges that the Defendants’ breach led the Plaintiff to suffer personal injury and to incur other losses, such as the inability to sell or live on the property.

[22] The Defendants were retained by the insurer, Grenville, to adjust the remediation of the oil spill. The Defendants’ obligations were to Grenville. The Defendants did not conduct the remediation, which was carried out by Concord. There is no genuine issue requiring a trial on the Plaintiff’s breach of contract claim because there is no contract between the Plaintiff and the Defendants that could have been breached.

[23] As noted above, Mr. Vahey stated at the hearing that he did not oppose the Defendants’ motion but that he objected to certain arguments made by the Defendants. For example, Mr. Vahey took issue with the Defendants’ reliance on the Ministry’s letter finding that the property had been remediated to the applicable standard. Mr. Vahey objects, stating that there is no evidence that the Ministry inspected the Premises. Given that the Plaintiff has no breach of contract claim, this argument does not assist Mr. Vahey’s position.

[24] Out of an abundance of caution, the Defendants also argued that there is no genuine issue on a potential negligence claim against them. The Statement of Claim pleads no cause of action in negligence and none has been put forward by Mr. Vahey. As a result, I find it unnecessary to consider whether there is a genuine issue requiring a trial on a potential negligence claim.

Is the Plaintiff’s Claim Statute-Barred?

[25] The Defendants submit that the Plaintiff’s claim is statute-barred under the Limitations Act because it was commenced more than two years after the cause of action arose. Since I have found no genuine issue requiring a trial on the breach of contract claim, it is not necessary to determine whether the Plaintiff’s claim is statute-barred. In any event, the Plaintiff’s claim would also be statute-barred since it was commenced after the two-year limitation period. The action was not commenced until December 17, 2014. This is more than two years after the Plaintiff reported the spill and after the Defendants advised the Plaintiff of the coverage limit. It is also more than two years after the sneezing incident which, according to the Plaintiff, took place on October 21, 2012. The Plaintiff has raised no discoverability issue, and his claim is statute-barred.

Is there Evidence of Damages?

[26] The Defendants further submit that Mr. Vahey has provided no evidence of damages. Since there is no contract between the Plaintiff and the Defendants, it is unnecessary to consider this issue. Mr. Vahey adduced no evidence on the motion. He admitted at his examination for discovery that he was not advancing any claim for health care costs. Moreover, Mr. Vahey received the amount to which he was entitled under the insurance policy and declined to sign a proof of loss, which would have entitled him to the balance of approximately $13,600. The Plaintiff has provided no proof of damages.

Conclusion

[27] Based on the issues in this case and the evidence before me, I find that this summary judgment motion affords a process that allows the court to make the necessary findings of fact and apply the law to those facts. I also find that a summary judgment motion is a proportionate, more expeditious, and less expensive process to achieve a just result than going to trial in this case. The Plaintiff’s claim raises no genuine issue requiring a trial. I therefore grant the Defendants’ motion for summary judgment and dismiss the Plaintiff’s claim.

Costs

[28] The parties made cost submissions at the motion hearing. The Defendants seek partial indemnity costs of $13,947.20 for the motion and $27,289.05 for the proceeding. All amounts include HST and disbursements.

[29] In Crowe v. The Manulife Financial Corporation, 2010 ONSC 3302 at para. 13, D.M. Brown J. (as he then was) noted that fixing costs against a self-represented litigant “is always a challenging task.” His Honour further stated (at para. 15):

Given the lack of homogeneity amongst self-represented litigants, it is necessary for the courts, in each case involving a self-represented party, to pay close attention to the factors enumerated in Rule 57.01(1) of the Rules of Civil Procedure, particularly those dealing with the reasonable expectations of the unsuccessful party, the conduct of the party, and whether any steps were improper, vexatious or unnecessary: Rule 57.01(1) (0.b), (e) and (f). Fixing costs in such circumstances will be an individualized process, focusing on the characteristics and conduct of the particular self-represented litigant, not measured against some abstract notion of the “typical self-represented litigant”.

[30] Pursuant to the Courts of Justice Act, R.S.O. 1990, c. C.43, s. 131(1), the court has broad discretion when determining the issue of costs. The overall objective of fixing costs is to fix an amount that is fair and reasonable for the unsuccessful party to pay in the circumstances, rather than an amount fixed by actual costs incurred by the successful litigant: Boucher v. Public Accountants Council for the Province of Ontario (2004), 71 O.R. (3d) 291 (C.A.).

[31] I have considered the factors set out in r. 57.01(1) of the Rules of Civil Procedure, as well as the proportionality principle in r. 1.04(1.1) of the Rules of Civil Procedure, while keeping in mind that the court should seek to balance the indemnity principle with the fundamental objective of access to justice. The proceeding was commenced four years ago, and the Defendants were required to spend significant time on the matter. The examinations for discovery were conducted together with the examinations for the other proceeding, and took five days in total. Neither party took steps that were vexatious or unnecessary. The issues on this motion were not particularly complex. The motion nonetheless required two attendances in court and was adjourned to allow the Plaintiff to retain counsel. The Defendants made extra efforts to ensure that the Plaintiff understood his obligations and to verify whether he would be serving responding material. They also gave him an opportunity to withdraw his claim.

[32] The Plaintiff argued that costs should not be awarded against him because he is in financial difficulty. He also submitted that his previous counsel did not follow his instructions and did not properly represent him.

[33] Given all of the foregoing, I fix costs of the motion and the proceeding at $20,000.00, inclusive of disbursements and HST, payable by the Plaintiff to the Defendant within 30 days of the date of this order.

Nishikawa J. Released: November 14, 2018