Court File and Parties

COURT FILE NO.: CV-19-00617657

DATE: 20210531

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: ADEL MAHMOD, Plaintiff

AND: WESTERN ASSURANCE COMPANY and SIVARAMAN KARTHIKEYAN, Defendants

BEFORE: Mr. Justice Chalmers

COUNSEL: A. Mahmod, Self-Represented A. Serpa, for the Defendant, Western Assurance Company

HEARD: In writing

ENDORSEMENT

Overview

[1] This action arises out of a motor vehicle accident that occurred on April 9, 2018. The Plaintiff alleges that the accident was caused by the Defendant, Sivaraman Karthikeyan. At the time of the accident, the Plaintiff was insured by Western Assurance Company.

[2] The Statement of Claim was issued on April 5, 2019. At that time, the only Defendant was Western. The Plaintiff brought a motion on February 28, 2020 to amend the Statement of Claim to add Mr. Karthikeyan as a Defendant. The order was granted by Master Sugunasiri on February 28, 2020. The Amended Statement of Claim was issued on March 9, 2020 and served on Mr. Karthikeyan on March 11, 2020. To date, Mr. Karthikeyan did not defend the action. Mr. Karthikeyan was noted in default on October 23, 2020. Western filed its Statement of Defence on June 17, 2019. After the Statement of Claim was amended, Western filed its Amended Statement of Defence and Crossclaim on July 14, 2020.

[3] In the Claim, the Plaintiff states that Western assessed the Plaintiff as 50% at fault for the accident. As a result, the Plaintiff was 50% liable for the repair costs to the Plaintiff’s vehicle. The Plaintiff disputes this assessment as well as the fact that Western downgraded the Plaintiff’s driving record rating. In its Statement of Defence, Western pleads that according to Mr. Karthikeyan, he was driving normally when his vehicle was struck as the Plaintiff attempted to enter into his lane. Western states that upon investigating the accident it became clear that the Plaintiff was at least 50% at fault for the accident.

[4] The Plaintiff brings this motion for an order for judgment against Mr. Karthikeyan. Western opposes the motion on the basis that fault for the accident is an issue in the ongoing claim against Western and that the Court cannot adjudicate the issue of liability based on the record before it. Western also argues that it would be prejudicial for the court to make any factual findings in respect of the accident giving rise to this action.

Analysis

[5] The Plaintiff brings this motion for default judgment against Mr. Karthikeyan. Pursuant to R. 19.02, a defendant who has been noted in default is deemed to admit the truth of allegations of fact made in the Statement of Claim. On a motion for default judgment it is appropriate and necessary for the court to inquire into the Plaintiff’s entitlement to judgment: Canadian-Automatic Data Processing Services Ltd. v. CEEI Safety & Security Inc. 2004 CanLII 44785 (ON CA), [2004] O.J. No. 4879. Allegations of law or mixed fact and law do not bind the court as admissions.

[6] The Plaintiff alleges that Mr. Karthikeyan caused the car accident because he attempted to pass the Plaintiff’s vehicle on the left but veered back into the Plaintiff’s lane because of oncoming traffic. Western, in its Statement of Defence, states that the Plaintiff is at least 50% responsible for the accident when he pulled out from a parking space without ensuring he could do so in safety.

[7] The Collision Reporting Centre Supplementary Information Form sets out the completing versions of how the accident occurred. Mr. Mahmod states that he parked his car at the side of the road for a few minutes. He pulled out of the parking spot and was driving in the lane when a car passed him on the left. The car then moved back into his lane because of oncoming traffic. Mr. Karthikeyan states that he was driving his vehicle at below the speed limit when a car parked at the side of the road attempted to enter the lane without signalling and struck his vehicle.

[8] Mr. Karthikeyan did not defend the claim and is therefore deemed to admit the allegations of fact. The allegation in the Amended Statement of Claim that Mr. Karthikeyan caused the accident is an allegation of mixed fact and law that is not conclusive or binding on the court.

[9] I am of the view that the evidentiary record before me is not sufficient to make a determination of liability.

[10] I am also of the view that it would be prejudicial to make factual findings on the issue of liability, when this remains a live issue as between the Plaintiff and Western Assurance. If default judgment is granted against Mr. Karthikeyan, the action will continue as against Western. At the trial of the action against Western, liability for the accident will be determined. The trial judge will have a more complete record than what is currently before me. Granting partial default judgment against Mr. Karthikeyan runs the risk of inconsistent findings of facts.

[11] I dismiss the Plaintiff’s motion for default judgment. The parties are directed to proceed to trial with respect to the issue of liability for the accident.

[12] I make no order as to the costs of this motion.

DATE: MAY 31, 2021