COURT FILE NO.: CV-19-81795
DATE: 2020/11/09
SUPERIOR COURT OF JUSTICE – ONTARIO
RE: BENJAMIN JACOB ALEXANDER KOMOROWSKI, JENNIFER KOMOROWSKI SCHEUNEMAN, DEREK SCHEUNEMAN, AUSTIN KOMOROWSKI, SOPHIE SCHEUNEMAN and JACKSON SCHEUNEMAN, minor by his Litigation Guardian, JENNIFER KOMOROWSKI SCHEUNEMAN, Plaintiffs
-and-
BRANDON HANNIMAN, deceased, by his Litigation Administrators, Thomas Hanniman and/or Sherrylynn Hanniman, SHOOTERS BAR & GRILL OF CALABOGIE LTD., ANN SENACK, JOSEPH LAW, EDWARD ALFRED LAW, THE ESTATE OF GEORGE LAW, SHEILA LAW and GRENVILLE MUTUAL INSURANCE COMPANY, Defendants
BEFORE: Madam Justice Sylvia Corthorn
COUNSEL: Joseph W.L. Griffiths, for the proposed Statutory Third Party, TD General Insurance Company
HEARD: In writing
ENDORSEMENT
Introduction
[1] The moving party, TD General Insurance Company (“TD”) brings this motion for an order adding it as a statutory third party under s. 258(14) of the Insurance Act, R.S.O. 1990, c. I.8 (“the Act”). TD seeks to have the rights prescribed by s. 258(15), of the Act, including with respect to the exchange of pleadings and the delivery of a jury notice.
[2] As of the date of the subject motor vehicle accident, TD was the motor vehicle insurer of the defendant, the late Brandon Hanniman (“the Deceased”). TD denies coverage to the Deceased on the grounds that he was, at the material time, in breach of statutory conditions under the subject policy of motor vehicle insurance.
[3] For the reasons that follow, the motion is adjourned to permit TD to serve and file a fresh as amended notice of motion and supporting affidavit. The motion shall proceed to a hearing.
Procedural and Substantive Issues
[4] There are a number of procedural and substantive deficiencies in the manner in which TD attempted to secure the relief requested on this motion.
[5] First, the notice of motion identifies that the motion is made “in writing”. There is, however, no indication as to the basis upon which the motion may proceed in writing. There is no reference in the grounds set out in the notice of motion to r. 37.12.1(1) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. That subrule provides that a motion may be made in writing where it is “on consent, unopposed or without notice under subrule 37.07(2)”.
[6] Second, no affidavits of service were filed with the motion record. The relief sought does not include an order dispensing with the requirement for service. There are, in any event, no grounds set out in the notice of motion in support of such relief.
[7] Third, counsel on the motion is the same as counsel who swore the supporting affidavit. Counsel cannot act on a motion in which they are also a witness. If TD intends to rely on evidence from Mr. Griffiths, then another lawyer must be counsel on the motion when it proceeds to a hearing.
[8] Fourth, there is no evidence that the motion is intended to proceed as an unopposed motion or on consent. The substantive relief requested is more than the addition of a statutory third party and an amendment to the title of proceeding. The substantive relief sought also relates to the completion of the exchange of pleadings and the delivery, by TD, of a jury notice. Specifically, paragraph 3 of the relief sought is an order,
to extend for 30 days from the date of entry of this Order the time for delivery of a statement of defence and crossclaim, and jury notice by the statutory third party, TD General Insurance Company, and to permit the plaintiffs 15 days after delivery of said statement of defence and crossclaim to file a reply.
[9] Section 258(15) of the Act prescribes the rights and obligations of a statutory third party:
Upon being made a third party, the insurer may,
(a) contest the liability of the insured to any party claiming against the insured;
(b) contest the amount of any claim made against the insured;
(c) deliver any pleadings in respect of the claim of any party claiming against the insured;
(d) have production and discovery from any party adverse in interest; and
(e) examine and cross-examine witnesses at the trial,
to the same extent as if it were a defendant in the action.
[10] In support of its motion, TD relies on an affidavit sworn by Joseph Griffiths (“the Griffiths Affidavit”). That affidavit consists of four paragraphs, including the introductory paragraph identifying the affiant. The second paragraph identifies that the action arises from a motor vehicle accident that occurred in October 2017.
[11] In the third paragraph, Mr. Griffiths refers to the statement of claim and identifies that a copy of that pleading is attached as Exhibit “A”. The statement of claim is part of the record; as such, it is properly part of the motion record as a separately tabbed document. It is inappropriate to include the statement of claim as an exhibit to an affidavit filed in the same proceeding.
[12] The statement of claim is the only pleading included as part of the record (albeit, and as noted above, inappropriately). The statement of claim was issued electronically on October 25, 2019. The deadline by which the statement of claim was to have been served on the defendants expired on April 25, 2019: r. 14.08(1).
[13] There is no evidence as to any of the following matters:
• When the statement of claim was served on each of the defendants;
• Whether any of the defendants has delivered a pleading;
• Whether any of the defendants delivered a jury notice;
• Whether any of the defendants has been noted in default; or
• The status of the litigation including as relates to the completion of the exchange of pleadings and the discovery process.
[14] To what extent, if any, is there the potential for the plaintiffs or any of the defendants to be prejudiced by the delivery of a jury notice at this stage of the proceeding? That issue may need to be addressed on the motion.
[15] Paragraph 4 of the Griffiths Affidavit includes evidence based on information and belief. Mr. Griffiths relies on information provided to him by a claims representative with TD. In paragraph 1 of his affidavit, Mr. Griffiths states that where he has relied on information provided to him by others, he has so stated and he believes the information provided to be true. To that extent, the Griffiths Affidavit complies with r. 39.01(4) with respect to evidence, based on information and belief, in support of a motion.
[16] Fifth, and turning to the substantive contents of paragraph 4, Mr. Griffiths says that “TD denies that it is under any duty to defend or indemnify Brandon Hanniman for the damages claimed by the Plaintiffs in this action, because Brandon Hanniman breached the statutory conditions of his automobile policy with TD”. There is no evidence as to which of the statutory conditions TD alleges was breached by the Deceased.
[17] It is important that TD identify to the parties and to the court the specific statutory condition or conditions that it alleges were breached by the Deceased. Without that information (a) the Litigation Administrators are not in a position to consider whether they intend to bring a cross-motion for an order requiring TD to provide the Deceased with a defence to the action, (b) the parties to the action are not in a position to consider, on an informed basis, their respective positions on the motion, and (c) the court is not in a position to consider the merits of TD’s motion.
Disposition
[18] For the reasons set out above, I order as follows:
The motion in writing for an order adding TD General Insurance Company (“TD”) as a statutory third party is adjourned and shall proceed to an oral hearing;
TD shall serve the following documents on all parties:
a) A copy of this endorsement;
b) The motion record filed in support of the motion in writing; and
c) A fresh as amended notice of motion and supporting affidavit, in a motion record;
The supporting affidavit referred to in paragraph 2(c) shall address the status of the exchange of pleadings and the overall status of the proceeding;
The motion record referred to in paragraph 2(c) shall include, as a separately tabbed document and part of the record in this matter, copies of (a) all pleadings served to date, (b) the jury notice or notices, if any, served to date, and (c) this endorsement.
The parties shall exchange documents on the motion in accordance with the Rules of Civil Procedure; and
All records filed shall be bookmarked and searchable and the facta, if any, filed shall be hyperlinked.
[19] It is incumbent upon counsel for the moving party to determine whether the motion must be brought before a judge or is within the jurisdiction of a master. If the latter, then the motion may be made to “the court”. The notice of motion included in the record for the motion in writing does not identify whether the motion is to be heard by a judge or the court. The notice of motion simply states that it is made in writing.
[20] If counsel for the moving party determines that the motion is one which must proceed before a judge, it may be returnable before any judge of this Court sitting in Ottawa; I am not seized of the motion.
Madam Justice Sylvia Corthorn
Released: November 9, 2020
COURT FILE NO.: CV-19-81795
DATE: 2020/11/09
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: BENJAMIN JACOB ALEXANDER KOMOROWSKI, JENNIFER KOMOROWSKI SCHEUNEMAN, DEREK SCHEUNEMAN, AUSTIN KOMOROWSKI, SOPHIE SCHEUNEMAN and JACKSON SCHEUNEMAN, minor by his Litigation Guardian, JENNIFER KOMOROWSKI SCHEUNEMAN, Plaintiffs
-and-
BRANDON HANNIMAN, deceased, by his Litigation Administrators, Thomas Hanniman and/or Sherrylynn Hanniman, SHOOTERS BAR & GRILL OF CALABOGIE LTD., ANN SENACK, JOSEPH LAW, EDWARD ALFRED LAW, THE ESTATE OF GEORGE LAW, SHEILA LAW and GRENVILLE MUTUAL INSURANCE COMPANY, Defendants
BEFORE: Madam Justice Sylvia Corthorn
COUNSEL: Joseph W.L. Griffiths, for the proposed Statutory Third Party
HEARD: In writing
ENDORSEMENT
Madam Justice Sylvia Corthorn
Released: November 9, 2020