COURT FILE NO.: CV-15-63228
DATE: 2019/01/21
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
MARIE-THERESE DAKANE
Plaintiff
– and –
JEVCO INSURANCE COMPANY
Defendant
Kibondo M. Kilongozi, for Plaintiff
Alexander J.D. Curry, for the Defendant
HEARD: January 8, 2019
REASONS FOR DECISION
R. smith J.
[1] The plaintiff Marie-Therese Dakane (“Dakane”) has brought a motion for summary judgment seeking a finding that she had a valid motor vehicle insurance policy in effect at the time of the accident on June 16, 2012, because she alleges she paid the insurance broker the amount owing in cash before the policy was cancelled.
[2] The defendant Jevco Insurance Company (“Jevco”) has brought a cross-motion for an order or declaration that the insurance policy issued to Dakane was properly cancelled for non-payment and was not in effect on the date of the accident on June 16, 2012. As a result they seek the dismissal of the plaintiff’s action with costs.
[3] Jevco also argues that the plaintiff’s claim for Accident Benefits is out of time as the application for Statutory Accident Benefits was only made in 2017, approximately 5 years after the date of the accident.
[4] The plaintiff argues that she failed to file an application for Statutory Accident Benefits, because Edward Illunga, the insurance broker, advised her that she had to wait for a response from Jevco. As a result she submits that she did not become aware or discover that commencing an action was an appropriate means to obtain a remedy until sometime in 2015.
[5] The plaintiff, who brought the motion for summary judgment, submitted that a trial was required to determine the credibility of both the plaintiff and her husband, Jean Luc Balik Babunga; who have both sworn affidavits stating that they paid the broker Edward Illunga in cash, the amount he advised was required to prevent the cancellation of the policy before May 29, 2012.
Issue
Is it appropriate to decide on a summary motion whether the plaintiff paid the insurance broker in cash to bring the policy into good standing?
[6] Jevco submits that I should find that the plaintiff and her husband’s evidence was not credible when they state that they paid the broker in cash, when he attended at her home on May 23, 2012 to bring the policy into good standing. Alternatively Jevco argues that I should order an expedited trial to determine this issue and also the issue of whether the plaintiffs are barred from making a claim as a result of the passing of the limitation period to make a claim for Statutory Accident Benefits.
[7] In Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87, the Supreme Court held that summary judgment motions must be granted whenever there is no genuine issue requiring a trial. There will be no genuine issue requiring a trial when the judge is able to reach a fair and just determination on the merits of the motion. This will be the case when the process (1) allows the judge to make the necessary findings of fact, (2) allows the judge to apply the law to the facts, and (3) is a proportionate, more expeditious and less expensive means to achieve a just result.
[8] At para. 16 of Hyrniak, the Supreme Court stated:
The Court of Appeal set out a threshold test for when a motion judge could employ the new evidentiary powers available under Rule 20.04(2.1) to grant summary judgment under Rule 20.04(2)(a). Under this test, the “interest of justice” requires that the new powers be exercised only at trial, unless a motion judge can achieve the “full appreciation” of the evidence and issues required to make dispositive findings on a motion for summary judgment. The motion judge should assess whether the benefits of the trial process, including the opportunity to hear and observe witnesses, to have the evidence presented by way of a trial narrative, and to experience the fact-finding process first-hand, are necessary to fully appreciate the evidence in the case.
[9] While the moving party bears the onus of establishing that there is no genuine issue for trial, the responding party may not rely on mere allegations or denials, but must set out, in affidavit material or other evidence, specific facts showing there is a genuine issue requiring a trial. In this case, to avoid summary judgment the Plaintiffs bear the onus of satisfying the Court that there are material facts that require a trial to be decided. Courts have held that the party resisting the motion must “lead trump or risk losing”.
[10] I find that a trial is necessary to assess the credibility of the plaintiff and Mr. Babunga to determine if they paid the amount required to bring the policy into good standing before May 29, 2012 to prevent its cancellation.
[11] This is a genuine issue requiring a trial in order to make a fair and just determination of this issue, as well as the issue of whether the limitation period to make such a claim for statutory accident benefits has passed.
Disposition
[12] Both the motion and cross-motion for summary judgment are therefore dismissed for the reasons given above. The two issues identified above shall be determined by an expedited trial.
Costs
[13] If the parties cannot agree on costs then written submissions not to exceed 7 pages may be made by both parties within 15 days.
R. Smith J.
Released: January 21, 2019
COURT FILE NO.: CV-15-63228
DATE: 2019/01/21
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
MARIE-THERESE DAKANE
Plaintiff
– and –
JEVCO INSURANCE COMPANY
Defendant
REASONS FOR JUDGMENT
R. Smith J.
Released: January 21, 2019