COURT FILE NO.: CV-15-529190
DATE: 20190110
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
NICOLE BELL
Plaintiff
– and –
SASHA CHATRIE, GUY BLACK, BRISTOL RENTALS LIMITED and AVIVA INSURANCE COMPANY OF CANADA
Defendants
R. Truax, for the Plaintiff
No one appearing for the Defendants
– and –
THE WAWANESA MUTUAL INSURANCE COMPANY OF CANADA added by Order pursuant to section 258(14) of the Insurance Act, R.S.O. 1990, c. I.8
Third Party
R. Truax, for The Wawanesa Mutual Insurance Company of Canada
HEARD: January 9, 2019
M. D. FAIETA j.
REASONS FOR DECISION
INTRODUCTION
[1] The Third Party, The Wawanesa Mutual Insurance Company, brings this motion for judgment, without notice, against the Defendants Sasha Chartrie and Guy Black who have been noted in default in the amount of: (1) $50,000.00 for damages; (2) $38,475.52 in costs.
[2] I have adjourned this motion to January 11, 2019 in order to allow Wawanesa an opportunity to provide further evidence to support its request that Judgment be granted in the amount of $50,000.00.
BACKGROUND
[3] The Plaintiff sustained personal injuries in a motor vehicle accident on March 11, 2014.
[4] The Plaintiff commenced this action against the Defendant Chatrie as well as: (1) the owner of the Defendant’s automobile. Bristol Rentals Limited; (2) the Defendant Guy Black, the person who rented the Defendant’s automobile; and (3) the Defendant Aviva Insurance Company of Canada being the insurer of the Plaintiff’s automobile pursuant to the uninsured and underinsured coverage of its automobile policy with the Plaintiff.
[5] Wawanesa insured the Defendant’s automobile. It denied coverage to the Defendants Chatrie and Black. Wawanesa, on its own motion, was added by Order dated January 6, 2017, as a third party to this action pursuant to s. 258(14) of the Insurance Act, R.S.O. 1990, c. I.8.
[6] This action was settled on May 15, 2018. Wawanesa agreed to pay the sum of $50,000.00 to the Plaintiff “… inclusive of all costs, disbursements, interest and HST” in exchange for a release from “… all damages, losses and/or injuries” arising from this collision. As a condition of the settlement, the Plaintiff was required to assign her claim against the Defendants to Wawanesa.
[7] I note that there is no evidence that $50,000.00 was paid by Wawanesa to the Plaintiff nor was a signed copy of the Assignment provided to the Court.
ANALYSIS
[8] Rules 19.02, 19.05 and 19.06 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 govern a motion for judgment.
CONSEQUENCES OF NOTING DEFAULT
19.02 (1) A defendant who has been noted in default,
(a) is deemed to admit the truth of all allegations of fact made in the statement of claim; …
BY MOTION FOR JUDGMENT
19.05 (1) Where a defendant has been noted in default, the plaintiff may move before a judge for judgment against the defendant on the statement of claim in respect of any claim for which default judgment has not been signed. R.R.O. 1990, Reg. 194, r. 19.05 (1).
(2) A motion for judgment under subrule (1) shall be supported by evidence given by affidavit if the claim is for unliquidated damages. R.R.O. 1990, Reg. 194, r. 19.05 (2); O. Reg. 131/04, s. 11.
(3) On a motion for judgment under subrule (1), the judge may grant judgment, dismiss the action or order that the action proceed to trial and that oral evidence be presented. R.R.O. 1990, Reg. 194, r. 19.05 (3).
(4) Where an action proceeds to trial, a motion for judgment on the statement of claim against a defendant noted in default may be made at the trial. R.R.O. 1990, Reg. 194, r. 19.05 (4).
FACTS MUST ENTITLE PLAINTIFF TO JUDGMENT
19.06 A plaintiff is not entitled to judgment on a motion for judgment or at trial merely because the facts alleged in the statement of claim are deemed to be admitted, unless the facts entitle the plaintiff to judgment. R.R.O. 1990, Reg. 194, r. 19.06.
[9] Where a claim for unliquidated damages proceeds by way of a motion for judgment, facts going to liability are deemed to be true however the facts going to damages must be proven: Umlauf v. Umlauf, 2001 24068 (ON CA), [2001] O.J. No. 1054 (C.A.), para. 8. In such cases, the plaintiff must adduce evidence to prove the measure or value of damages that it has sustained: Family Trust Corp. v. Harrison, [1986] O.J. No. 2555, para. 10.
[10] However, where a third party, such as an insurer, has settled the plaintiff’s claim against a defendant and pursues the defendant pursuant to an assignment of the plaintiff’s action, strict proof of damages may be impractical and expensive. In such cases, the amount of the settlement may be adopted as the measure of damages if the third party establishes that the settlement was reasonable: MacKean v. Royal & Sun Alliance Insurance Co. of Canada, 2015 NSCA 33, para. 35; Caithesan v. Amjad, 2016 ONSC 5720, para. 41.
[11] Whether the amount of settlement was reasonable turns on whether the plaintiff would have recovered damages in the range of the settled amount had the matter proceeded to trial: MacKean, paras. 13, 28, 52.
[12] The fact that a third party had an interest in not overpaying a claim or that the defendant(s) did not defend this action is of little or no assistance in finding that the amount of a settlement was reasonable. Similarly, there is nothing in the Insurance Act, R.S.O. 1990, c. I.8 which provides that that the amount paid by an insurer in settling a claim is a presumptively reasonable measure of the plaintiff’s damages.
[13] The Notice of Motion is accompanied by an affidavit from Joseph Baldanza, counsel for the Plaintiff and Wawanesa. The Plaintiff suffered injuries when her automobile was struck while driving through an intersection by the Defendant’s automobile. At the time of the collision, the Plaintiff, a 35 year old woman, was employed as a part-time bartender. She primarily suffered injury to her neck, shoulders and mid and lower back. The Plaintiff received chiropractic therapy and physiotherapy. She was prescribed medications to manage her pain and anxiety. The Plaintiff returned to work, about three months after the collision, in June 2014 until October 2015, however the Plaintiff has not worked since October 2015.
[14] Mr. Baldanza’s affidavit concludes with the following bald assertion:
In all the circumstances, the Plaintiff and Wawanesa believe that the settlement of the Plaintiff’s claim, inclusive of damages, pre-judgment interest, costs, HST and disbursements for $50,000 was fair and reasonable in the circumstances, and I verily believe same to be true.
[15] Mr. Baldanza’s affidavit does not explain why a settlement in the amount of $50,000.00 “was fair and reasonable in the circumstances”. I expect that the rationale for the amount of this settlement is recorded somewhere in Mr. Baldanza’s or Wawanesa’s files. For this motion to have any chance of success, the rationale for this settlement needs to be shared with this Court.
[16] Further, the affidavit evidence does not address:
• What were the heads of damages claimed? Aside from non-pecuniary loss, interest, costs, disbursements and HST, were any other damages, such as loss of income, medication expenses and treatment expenses, claimed by the plaintiff?
• How much was paid on settlement for each head of damage as well as interest, costs and disbursements?
• What was the range of recovery for each head of damage if this action proceeded to trial?
• How likely is it that the Plaintiff’s claim for non-pecuniary loss would have satisfied the threshold requirement of “permanent serious impairment of an important physical, mental or psychological function” under s. 267.5(5)(b) of the Insurance Act had this action proceeded to trial?
CONCLUSIONS
[17] This motion is adjourned to January 11, 2019 to permit Wawanesa to provide further evidence in support of its motion for judgment.
[18] Wawanesa also asks that this Court order that the Defendants Chatrie and Black pay their actual costs of defending this action as a statutory third party in the amount of $38,475.52. This request is dismissed. First, as Wawanesa acknowledges there is no authority on this motion to order that such costs be paid. Second, an award of actual costs is reserved for the most exceptional circumstances. Wawanesa has provided no evidence to support such an award.
Mr. Justice M. D. Faieta
Released: January 10, 2019
COURT FILE NO.: CV-15-529190
DATE: 20190110
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
NICOLE BELL
Plaintiff
– and –
SASHA CHATRIE, GUY BLACK, BRISTOL RENTALS LIMITED and AVIVA INSURANCE COMPANY OF CANADA
Defendants
– and between –
THE WAWANESA MUTUAL ISNURANCE COMPANY OF CANADA added by Order pursuant to section 258(14) of the Insurance Act, R.S.O. 1990, c. I.8
Third Party
REASONS FOR DECISION
Mr. Justice M. D. Faieta
Released: January 10, 2019