Court File and Parties
COURT FILE NO.: CV-19-613979 DATE: 2021-01-07
ONTARIO SUPERIOR COURT OF JUSTICE
RE: ISIDRO ANDRADE, Plaintiff -and- THE ESTATE OF CHAMPAKALI BAKSHI, AVIVA INSURANCE COMPANY OF CANADA and THE CITY OF TORONTO, Defendants
BEFORE: F.L. Myers J.
COUNSEL: Daniel Fenwick, for the plaintiff Ian Nicholls Mutter, for Aviva Insurance Company of Canada G. Wray, for the City of Toronto
HEARD: January 7, 2021
ENDORSEMENT
[1] Motion for an order dismissing this action as against Aviva with costs.
[2] This is a rare pleadings motion in which the plaintiff cannot plead a requisite element of his cause of action. Therefore, the claim cannot possibly succeed and must be dismissed.
[3] The plaintiff pleads that he was driving northbound when a pedestrian ran in front of his car. Sadly, a collision ensued and the pedestrian died. The pedestrian’s estate is suing in another action. In this action, the plaintiff sues the pedestrian, Toronto, and his own insurer Aviva. The plaintiff says he has suffered significant loss and injuries as a result of the trauma that he suffered in the accident. He seeks compensation for his loss and damages from the pedestrian, Toronto, and his insurer.
[4] To be entitled to compensation at law, a plaintiff must prove a set of facts that the law recognizes as amounting to a valid basis for entitlement. This is referred to as a “cause of action”. To sue for the cause of action of negligence, for example, a plaintiff must prove that each defendant against whom he seeks relief:
owed a duty of care to the plaintiff;
breached the duty by failing to act in accordance with the standard of care recognized by law; and
thereby caused him to suffer loss or damages.
[5] To succeed in a claim therefore, a plaintiff must prove that a defendant’s breach of her duty of care caused the plaintiff's loss or damages. This is referred to as “causation”. It is a separate and mandatory piece of the cause of action. Even if a defendant owes the plaintiff a duty of care and breaches the duty, the defendant cannot be held liable in negligence unless her breach caused or contributed to the plaintiff's loss or damages.
[6] In paragraph 8 of his statement of claim, the plaintiff alleges that his loss “was caused entirely by the negligence of [the pedestrian] and the defendant Toronto”. [Emphasis added]
[7] Aviva is sued because it insured the plaintiff for losses negligently caused or contributed to by an unidentified driver. The plaintiff does not mention any unidentified driver in his statement of claim. At a case conference with Schabas J., the judge suggested that the plaintiff needs to amend his claim to plead a cause of action against the unidentified driver for whose negligent acts he seeks recovery from Aviva.
[8] The plaintiff has submitted a draft amended statement of claim that, in paragraph 6, mentions that while the pedestrian was running in front of his car (that was heading north), there was another car on the street heading south. That car left the scene and the driver is unidentified .
[9] In para. 12 of his draft amended statement of claim, the plaintiff lists several boilerplate particulars of breaches of duty of care allegedly committed by the unidentified driver. In paragraph 11 of the draft amended statement of claim, the plaintiff pleads that Aviva is liable to compensate the plaintiff for loss negligently caused or contributed to by the unidentified driver. But the plaintiff never pleads that the negligence of the unidentified driver actually caused or contributed to his damages. He can't. He has pleaded that his losses were caused “entirely” by the pedestrian and the city. He cannot simply withdraw that plea. Nor has he tried to do so. Instead counsel argues that: (a) this is a serious accident with horrible losses all round; (b) the pleading is to be read as a whole and paragraphs 11 and 12 together plead causation; and (c) it is too early to say what actually happened.
[10] I am not hearing the trial at which the plaintiff needs to prove his cause of action. At this stage, his lawsuit can continue as long as he pleads facts which, if proved, can amount to a cause of action. The facts pled will be assumed to be true for this purpose. In addition, the pleading will be read generously so that a potentially valid lawsuit will not be defeated by loose wording.
[11] The existing statement of claim pleads no cause of action in relation to the unidentified driver or Aviva at all. In the draft amended statement of claim, read as a whole, paragraph 8 precludes the plaintiff from succeeding against Aviva. Paragraph 12 does not allege causation. Paragraph 11 recites a contract term that applies if causation is proven. But I am unable to find a plea of causation in fact implied in paragraphs 11 and 12 in face of the express plea in paragraph 8.
[12] Without pleading a requisite element of the cause of action, it is “plain and obvious” that the action cannot succeed. See: Hunt v T & N plc, 1990 CanLII 90 (SCC), 1990 CarswellBC 216 (SCC).
[13] The plaintiff would like to investigate the circumstances of the claim more fully and presents a sympathetic figure in light of the trauma alleged. However, the law does not allow lawsuits for investigative purposes generally. It is not appropriate for a plaintiff to make an allegation without knowing the facts necessary to support the cause of action alleged. See Cottage Advisors of Canada v Prince Edward Vacant Land, 2020 ONSC 6445 and the cases cited at para 22. That is not to say that every possible particular need be known with certainty at the pleading stage. However, a plaintiff must be able to plead facts that make out each of the requisite elements of the cause of action asserted. It is not enough to say that the plaintiff has a sympathetic case and would like to investigate further. Investigations can occur during the running of the limitation period prior to the commencement of a lawsuit. But a claim can only be started once the plaintiff can plead a cause of action.
[14] This is also one of the few cases where leave to amend must be denied. The plaintiff had an opportunity to amend in face of an express indication of its difficulties by Schabas J. As discussed above, its draft amended statement of claim continues to exhibit the same defect as the original claim and this cannot be cured in light of paragraph 8. Counsel did not seek an opportunity to try again. Rather, he argued that they had pleaded causation to the extent they could. Leave to amend will not be granted where, “there is no reason to suppose that the party could improve his or her case by any amendment”: See: Cottage Advisors at para. 17.
[15] The action is dismissed against Aviva Insurance Company of Canada.
[16] Counsel agreed that in this event, the plaintiff should be ordered to pay costs to Aviva of the entire action on a partial indemnity basis fixed at $5,000. It is so ordered
F.L. Myers J.
Date: January 7, 2021