COURT FILE NO.: CV-17-4942
DATE: 2019 10 18
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Cindy Ramkissoon, Plaintiff
AND:
Cameron Gray and RBC General Insurance Company, Defendants
BEFORE: Fragomeni J.
COUNSEL: Warren Bigby, Counsel, for the Plaintiff
Mark de Jong Counsel, for the Defendant
Alysha Snow – In person
HEARD: September 20, 2019
ENDORSEMENT
NATURE OF THE MOTION
[1] The Plaintiff, Cindy Ramkissoon, seeks the following relief:
An Order Amending the herein Statement of Claim to add as a Defendant, Alysha Snow (hereinafter: “Defendant Snow”)
An Order Amending various paragraphs of the Statement of Claim to reflect the addition of Defendant Snow, in accordance with the Amended Statement of Claim attached hereto and marked as Schedule “A”.
An Order for substitute service of the Amended Statement of Claim on the Defendant, Cameron Gray (hereinafter “Defendant Gray”) by regular mail to his last known address.
Such further and other relief as counsel may advise and this Honourable court may permit.
[2] The Defendant, Cameron Gray, seeks an order staying or dismissing the Plaintiffs action on the grounds that the Plaintiff failed to serve its Statement of Claim within six months from the date the claim was issued.
Chronology of Events
The motor vehicle accident occurred on or about August 11, 2016
The Plaintiff’s motor vehicle was struck by a red 2007 Saturn being operated by the proposed Defendant, Alysha Snow. The Plaintiff pleads that at all material times the 2007 Saturn was owned by the Defendant, Cameron Gray.
The affidavit of Jasveen Patheja, a lawyer with TSD Law, counsel for the Plaintiff sworn August 14, 2019 sets out the efforts made and investigation conducted on behalf of the Plaintiff to locate and serve Cameron Gray at paragraphs 3 to 10.
[3] At paragraphs 11, 12 and 13 Jasveen Patheja deposes the following:
On or about August 13, 2019, TSD Law contacted the representative for the Defendant RBC advising that we have been unsuccessful in attaining further information on the motor vehicle accident. TSD Law asked whether the representative for the Defendant RBC had a copy of the police report or any further contact information on the Defendant Gray.
On or about August 13, 2019, the representative for the Defendant RBC provided a copy of the Motor Vehicle Accident Report and advised the Defendant Gray did not have insurance.
The Motor Vehicle Accident Report records the following:
a. The owner of the red 2007 Saturn motor vehicle as the Defendant Gray. The Defendant Gray is listed as not having insurance for the aforementioned motor vehicle.
b. The operator of the red 2007 Saturn motor vehicle as the proposed Defendant Snow.
c. The proposed Defendant Snow was charged with under Cumpolsary (sic) Automobile Insurance Act for operating a motor vehicle without insurance.
Position of Cameron Gray
[4] The Defendant, Cameron Gray, submits that the order requested by the Plaintiff should not be granted on the basis that Gray is prejudiced. In July 2018 Gray disposed of critically relevant documents evidencing the sale of his vehicle to Snow. The prescribed six month period to serve Gray expired on May 16, 2018, before Gray disposed of the sale documents.
[5] Gray’s defence will be that he was no longer the owner of the vehicle.
[6] Gray also submits that the Plaintiff did not make reasonable efforts to locate Gray within a reasonable time line.
Analysis and Conclusion
[7] The Plaintiff points out three legislative breaches committed by Gray that directly resulted in the failed searches conducted on behalf of the Plaintiff:
First, Highway Traffic Act R.S.O. 1990, c. H. 8
Change of name or address
(2) Where an owner of a motor vehicle or a plate holder changes the name or address of the owner as set out in the owner’s application for a permit or validation of a permit or in a previous notice filed under this section, the owner shall within six days file with the Ministry notice of the new name or address.
Second, Highway Traffic Act, R.S.O. 1990, c. H.8
Used vehicle information package
11.1 (1) Every person who sells, offers for sale or transfers a used motor vehicle shall provide a valid used vehicle information package in respect of the vehicle for inspection by proposed purchasers or transferees and shall deliver the package to the purchaser or transferee at the time of sale or transfer of the vehicle. 1993, c. 13, s. 1.
Issuance of package
(2) The Ministry shall issue a used vehicle information package in respect of any used motor vehicle to any person who applies therefor and pays the prescribed fee. 1993, c. 13, s. 1.
Permit for vehicle
(3) The purchaser or transferee of the used motor vehicle shall deliver the used vehicle information package mentioned in subsection (1) to the Ministry before obtaining from the Ministry a new permit for the vehicle. 1993, c. 13, s.1.
Third, the seller of a used vehicle is required by law to remove his or her licence plates from the vehicle. Further the vehicle remains registered in the seller’s name until the vehicle transfer has been completed at Service Ontario.
[8] There is no dispute that Gray did not comply with any of these legal requirements when he sold his vehicle to Snow. Had he done so his address could have been obtained from the searches conducted by the Plaintiff.
[9] The Plaintiff submits that notwithstanding the lapse of the second anniversary of the accident, the Plaintiff only discovered the name and address of Snow on August 13, 2019 through a copy of the Motor Vehicle Accident Report received by the Defendant RBC.
[10] The Plaintiff acknowledges that the Defendants, Gray and Snow, ought to be permitted to plead the Limitations Act such that the issue of discoverability can be dealt with at trial.
[11] I am satisfied in all of these circumstances that the relief requested by the Plaintiff is reasonable. The order shall issue granting the relief set out at paragraphs 1 to 3 in her Notice of Motion dated August 14, 2019.
[12] A further order shall issue permitting the Defendants Gray and Snow to plead the Limitations Act in response to the Amended Statement of Claim.
[13] The parties shall file written submissions on costs within 20 days.
Fragomeni J.
Date: October 18, 2019
COURT FILE NO.: CV-17-4942
DATE: 2019 10 18
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
CINDY RAMKISSOON
Plaintiff
- and -
CAMERON GRAY AND RBC GENERAL INSURANCE COMPANY
Defendants
ENDORSEMENT
Fragomeni J.
Released: October 18, 2019