COURT FILE NO.: CV-761/17
DATE: 20220912
SUPERIOR COURT OF JUSTICE – ONTARIO
RE: Ryder Anthony Melanson, by his litigation guardian, Natalie Catherine Moroney, and Natalie Catherine Moroney, Plaintiffs
AND
Joseph Kuchocki, Mihaly Nemeth, Ryder Truck Rental Canada Ltd., Ranjit Singh Saini, Performance Logistics Inc., Dariusz Dabek and S.L.H. Transport Inc., Defendants
BEFORE: Justice Spencer Nicholson
COUNSEL: C. Collins for the Plaintiffs, Responding Parties
B. Mitchell for the Defendants, Dariusz Dabek and S.L.H. Transport Inc., Moving Parties
C. Theune for the Defendants, Mihaly Nemeth and Ryder Truck Rental Canada Ltd. (Observing but taking no position on the motion)
S. Schenke for the Defendant, Joseph Kuchocki (not appearing and taking no position on the motion)
M. Coughlin for the Defendants, Ranjit Singh Saini and Performance Logistics Inc. (not appearing and taking no position on the motion)
HEARD: September 7, 2022
REASONS ON MOTION
NICHOLSON J.:
[1] On February 27, 2014, there was a multi-vehicle collision in the westbound lanes of Highway 401 in the Municipality of Dutton-Dunwich as a result of sudden whiteout conditions. The infant plaintiff, Ryder, was a passenger in a vehicle owned and operated by his father, Joseph Kuchocki. Ryder was four years old at the time. He is alleged to have significant ongoing problems attributable to the accident.
[2] Mr. Kuchocki is a defendant in this action. The other defendants are the drivers and owners/employers of three transport trucks that have been implicated in the accident.
[3] Fault for the accident is contested. Indeed, the Nemeth/Ryder Truck defendants unsuccessfully brought a summary judgment motion to have the action dismissed as against them. Grace J.’s decision on that motion is dated July 30, 2021.
[4] The motion before me is unusual. The defendant, Dabek, the operator of the S.L.H. Transport truck passed away on September 7, 2018. A Certificate of Appointment of Estate Trustee with a Will was granted on June 14, 2019. The material discloses that the Estate’s main asset was Mr. Dabek’s house, which was sold in August of 2019. The proceeds from the sale, in the amount of $553,500 have been held in an account for the Estate since that time. Beneficiaries of the Estate are being deprived of receiving their inheritance because the Estate Trustee is not prepared to release funds prior to the resolution of the lawsuit. I am satisfied for the purpose of this motion that the beneficiaries have considerable need for the funds. Furthermore, the Estate assets are diminishing in value due to the costs of annual filings.
[5] The motion is framed under Rule 20, the rule governing summary judgment motions. The moving parties seek:
(a) An Order granting partial Summary Judgment dismissing all claims and crossclaims against the Defendants, Dariusz Dabek and S.L.H. Transport Inc., in excess of the $1 million liability limit of the insurance policy of those defendants;
(b) In the alternative, an Order that any amount recoverable by the Plaintiffs, or by any co-Defendant, as against the Defendants Dariusz Dabek and S.L.H. Transport Inc., be limited to $1 million and that the Executor of the Estate of Dariusz Dabek be permitted to complete the administration of the Estate of Dariusz Dabek, deceased.
[6] In his Statement of Claim, the infant plaintiff and his mother claim damages in the amount of $2,550,000, plus interests and costs. During argument, it was suggested by plaintiffs’ counsel that the claim may be amended to increase the amount sought in the prayer for relief.
[7] The four defendant vehicles involved in this accident each have insurance polices with $1 million third party liability limits. Of course, a finding of 1% liability against any defendant, would result in the entire $1 million policy being available to the plaintiffs to satisfy any judgment.
[8] I was advised during arguments that S.L.H. Transport is currently in bankruptcy proceedings. Thus, assuming that S.L.H. Transport is vicariously liable as either Mr. Dabek’s employer or as owner of the transport truck, it is not clear whether it has any assets to satisfy a judgment over and above its $1 million policy limits.
[9] The moving parties made attempts to reach an agreement with the other parties that would permit the administration of the Estate to be completed. Plaintiffs’ counsel was specifically asked if they would limit the plaintiffs’ claims as against Mr. Dabek’s Estate to his $1 million policy limits. Plaintiffs’ counsel pointed out that given that Ryder is a minor, court approval would be required to reach that agreement. In any event, they were not prepared to cap the plaintiffs’ damages to Mr. Dabek’s $1 million policy limits.
[10] The Kuchocki defendant has indicated a willingness to admit at least 1% liability for the accident if the plaintiffs agreed to limit their claims against Mr. Kuchocki to his $1 million policy limits. The Kuchocki defendant has also agreed to cap their crossclaim to the policy limits and agrees that the Estate can administer the assets.
[11] The plaintiffs did deliver a Request to Admit which asked each of the defendants to admit that they were at least 1% liable for the collision. Obviously, if all four of the defendants made such an admission, there would be policy limits of $4 million available to satisfy any judgment the plaintiffs ultimately obtain. However, the plaintiffs would not limit their claims to any one defendant’s policy limits.
[12] It is clear from reviewing the material before the court that the Dabek/S.L.H. Transport defendants and the Nemeth/Ryder Truck defendants are not prepared to make any admission of liability. I do not say this critically as liability in this case is complicated and those defendants may not have any responsibility for the accident. The position of Ranjit Singh Saini and Performance Logistics Inc. is not clear from the record.
[13] The Estate Trustee has indicated that she is not prepared to distribute the estate until she is 100% sure that “the estate cleared”. She will “not take a chance”.
[14] It is also clear on the evidence that the Dabek/S.L.H. Transport defendants are growing frustrated by the pace of resolving this claim or at least advancing the claim.
[15] During argument, counsel for the moving parties conceded that it would be difficult to determine that there is no genuine issue requiring a trial that would lead to the granting of the relief sought. This was a fair concession in my view. While I have not considered whether any other rule may provide a pathway towards the relief being sought, the applicable test under Rule 20 strikes me as being very difficult to meet in these circumstances. Counsel for the moving parties adduced no case on point.
[16] Superficially, I note that requests for partial summary judgment are rarely granted (see: Butera v. Chown Cairns LLP, 2017 ONCA 783, at para. 34).
[17] Rather, counsel for the moving party focused on the practicalities of the situation, and the hardship being sustained by the beneficiaries of the Estate. First of all, it is argued, the transport truck operated by Mr. Dabek appears to have been the last vehicle on the scene and it is not clear that it came into contact at all with the vehicle in which the plaintiff was a passenger. Thus, there may not be any liability whatsoever against Mr. Dabek. If there is, it is argued that it is quite likely that other defendants also bear at least 1% liability for this accident. Furthermore, there has not yet been a CAT assessment conducted under the Statutory Accident Benefits Schedule. A finding of catastrophic impairment would protect the plaintiff’s future care costs and reduce the defendants’ exposure to his damages.
[18] From a practical perspective, the moving parties argue that it is therefore unlikely that Mr. Dabek’s exposure will exceed the available policy limits. Thus, they seek to minimize the risk that the minor plaintiff will actually be undercompensated.
[19] Plaintiffs’ counsel argues that the only party to this litigation that clearly does not bear any liability is the minor plaintiff, Ryder, a passenger in his father’s vehicle. However, at this stage, they cannot determine to whom a jury might apportion liability, which is consistent with the decision of Grace J. The plaintiffs point out that court approval is necessary for this agreement in any event and that the court should not approve any judgment that is not in the best interests of the child.
[20] I do not intend to engage in a Rule 20 analysis. In my view, it is clear that there are genuine issues requiring a trial concerning liability and damages that cannot possibly be determined on this record, including through utilizing the enhanced fact-finding powers. Instead, I approach my analysis in a different way.
[21] Ryder is now thirteen years of age. He has been diagnosed with ADHD, specific learning disorders in written expression, math and reading, as well as an “unspecified neurocognitive disorder”. His deficits involve attention, planning and organization as well as behavioural issues in the classroom. His academic performance has been poor. He also has low self-esteem, high levels of anxiety and poor gross and fine motor control. If there is a causal connection between these issues and the motor vehicle accident, his damages could be very significant.
[22] I agree with plaintiffs’ counsel that while delay is unfortunate in cases involving minors, often times damages do not crystallize for many years as the child progresses through school. It is very difficult to assess economic losses until there is a clear indication of the child’s abilities and limitations. In this particular case, Ryder’s parents have apparently attained a measure of professional success that if extrapolated to Ryder, could result in a very significant economic loss over the course of his lifetime.
[23] I want to be crystal clear. I am not making any determination of causal connection or making any comment that should be considered as influencing the ultimate resolution of Ryder’s damages. I am simply pointing out that they could be very significant.
[24] If this matter was before me to judicially approve any agreement to cap Ryder’s damages to the policy limits available to the Dabek/S.L.H. defendants under Rule 7.08, I would refuse. To do so at this juncture runs the risk of undercompensating a minor, whose best interests the court is obligated to protect.
[25] This case involves a complicated liability assessment. The jury will undoubtedly implicate at least one defendant, but not necessarily all. The jury may not implicate enough defendants that the insurance monies available are sufficient to satisfy Ryder’s claim. I would not risk limiting this minor plaintiff’s recovery in the event, however unlikely, that a jury does not implicate enough defendants to provide adequate insurance monies to satisfy a judgment.
[26] The court does not typically impose execution before judgment. The Estate Trustee is choosing not to distribute the estate assets in advance of the resolution of this claim, presumably out of concern for personal liability for doing so. It is not for me, at this juncture, to say whether she is obligated, or wise, to do so. However, the Estate Trustee is effectively asking this court to confine the minor plaintiff’s potential recovery, risking undercompensating him, so that the Estate Trustee does not face personal liability. I am not prepared to do so.
[27] I do have sympathy for the beneficiaries of the Estate. Civil litigation takes too long, and this case will likely take longer than most.
[28] However, I cannot and will not determine on the record before me that any defendant is or is not at least 1% liable. This is consistent with Grace J.’s decision with which I happen to agree.
[29] Further, I cannot and will not assess the plaintiffs’ damages and then assume that there will be sufficient funds available to satisfy judgment, in part because I cannot know how many policies of insurance will be in play. It is likely premature for the court to assess the claim. In any event, the evidence on the motion does not adequately permit the court to assess the claim with any confidence.
[30] The plaintiffs’ approach of trying to secure admissions of at least 1% liability sufficient to ensure the availability of adequate funds makes good sense tactically. From the opposite point of view, I cannot blame any of the defendants for not being prepared to make such an admission in the context of this case. That is a standoff that cannot be resolved by way of summary judgment motion. If the parties cannot ultimately agree, a trial on a full record may be the only answer.
[31] The motion is dismissed. If the parties cannot agree on costs, the plaintiff may make written submissions no longer than three pages in length. These may be served and submitted through the trial coordinator by September 30, 2022. Responding submissions of the same length are due by October 7, 2022.
“Justice S. Nicholson”
Justice Spencer Nicholson
Date: September 12, 2022