Cooper v. Johnston

CITATION: 2021 ONSC 3938

COURT FILE NO.: 11050/16

DATE: 2021-05-31

SUPERIOR COURT OF JUSTICE – ONTARIO

RE: Jacqueline Belinda Cooper, plaintiff, responding

AND: Fraser Johnston as Litigation Administrator of the estate of Dorothy Johnston and Heartland Farm Mutual Insurance Company, defendants, moving

BEFORE: Mr Justice Ramsay

COUNSEL: Frank Kolenko and Sanket G. Ullal for estate of Dorothy Johnston; N. Searles and Allison Pressé for Heartland

HEARD: May 31, 2021 at Welland

ENDORSEMENT

[1] The defendant estate of Dorothy Johnston (“the estate”) moves for summary judgment. The plaintiff takes no position. The motion is opposed by the defendant Heartland Farm Mutual Insurance Company, who is the plaintiff’s insurer.

[2] On June 10, 2014 the plaintiff was injured in a collision in which a car rear-ended her car while she was stopped in the left turn lane, causing minor damage to her car and, allegedly, significant harm to herself. The car that struck her drove away. The plaintiff described the car as a gold-coloured four-door sedan driven by an old man. A witness, Samantha Weir, described the offending car as small and possibly green, but she wrote down the licence number on a piece of paper and gave it to the plaintiff. The plaintiff told the police the number and did not keep the piece of paper. The police wrote the licence number on the accident report and the occurrence report. The defendant is the registered owner of the car to which the licence number belonged. The police went to her house, a short distance from the accident, and found the car parked there. It had scratches on the front bumper. It is a gold-coloured four-door Chevrolet Malibu.

[3] The plaintiff sued the defendant Dorothy Johnston, who has since died, on the basis that she was the driver or registered owner of the motor vehicle that struck her.

[4] The Highway Traffic Act, R.S.O. 1990, c. H.8, provides:

192 (2) The owner of a motor vehicle or street car is liable for loss or damage sustained by any person by reason of negligence in the operation of the motor vehicle or street car on a highway, unless the motor vehicle or street car was without the owner’s consent in the possession of some person other than the owner or the owner’s chauffeur.

Pleadings

[5] The plaintiff also sued Heartland, her own insurer, on her policy for loss caused by unidentified drivers. The estate argues that Heartland has no standing to argue that Dorothy Johnston consented to someone having possession of her car because it did not so plead.

[6] I do not agree. In paragraph 4 of its statement of defence, Heartland expressly denied that the accident was caused by an uninsured, underinsured or unidentified driver.

Hearsay

[7] The estate also complains that to a large extent Heartland’s response is based on hearsay or double hearsay evidence. Heartland filed the affidavit of a private investigator who interviewed Samantha Weir and two neighbours who saw Dorothy’s son Donald (an old man, since deceased) drive the Malibu regularly during the year before the accident. The neighbours say that Donald continued to live in Mrs Johnston’s house after she moved to her daughter Andreanna’s house on April 1, 2014.

[8] These three witnesses refused to give affidavits for this motion, but they will be compellable at trial. They have no interest in the proceedings and they knew that they were being interviewed for court. Affidavits on information and belief are admissible on summary judgment: Rule 20.02. In the circumstances I do not draw an adverse inference from Heartland’s failure to produce affidavits from the sources of the information. Nor do I hold it against them that they did not produce an affidavit from the investigating police officer. At this point he will not likely remember anything that is not in his notes or his reports.

Merits

[9] Dorothy Johnston could not have been driving her car on June 10, 2014. She never drove her car after April 1. On that date, her dementia had progressed to the point that she went wandering and had to be found and brought home by the police. From that time on, she went to live with her daughter Adreanna. The car was left at Mrs Johnston’s residence and the only key the surviving family members knew about was given to another daughter, Mary. Mrs Johnston underwent a capacity assessment. On May 25, 2014 the assessor issued a report certifying that Mrs Cooper was incapable of making decisions. No one had become her guardian by June 10, 2014.

[10] On the other hand, there is evidence that Donald was living at his mother’s house in the year before the accident, coming and going as he pleased, and that she had let him drive her car in the past, when she might well have been capable of doing so. He could have had a key. The other children of Dorothy Johnston were keeping a close watch on their mother from April 1, 2014, but not on her car. Donald could have been driving it in June 2014. By June 10, 2014 no one had become guardian of Mrs Johnston’s property. No one had revoked her consent to Donald’s possession.

[11] There is prima facie proof that Mrs Johnston’s car was involved in the accident. Has the estate proven that its driver did not have possession with Mrs Johnston’s consent? Without assessing the credibility of the neighbours and the eyewitness I do not think that I can answer the question fairly and justly. A trial is required. Summary judgment is denied.

[12] The parties may make written submissions to costs not exceeding three pages in length, to which a bill of costs and any offers to settle may be appended, Heartland within seven days and the estate within 7 days thereafter.

J.A. Ramsay J.

Date: 2021-05-31