Court File and Parties

COURT FILE NO.: CV-13-00492065-0000 DATE: May 9, 2023 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: TAMAR COBOURNE, Plaintiff AND: NDIRJKA OZUEH (aka N OZUEH) and JOSEPH LAVALLE and NELLY SOLIVEN and STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendants

BEFORE: Justice Papageorgiou

COUNSEL: S. Vatanchi, for the Defendant State Farm

HEARD: May 8, 2023

Endorsement

[1] On March 31, 2023, I read a motion for default judgment which was brought together with a motion to amend.

[2] I granted the amendment motion amending the Statement of Claim to spell the defendant Ndirjka Ozueh’s first name correctly. Her first name should have been spelled Ndirika, and not Ndirjka.

[3] I adjourned the motion for default judgment directing that the defendant Ms. Ozueh be served with the Order amending the pleadings together with the motion for default judgment in accordance with the case Casa Manila Inc. v Iannuccilli, 2018 ONSC 7083. This was in part because I did not see that the motion had in fact already been served on the defendant in question and in part because this defendant was self-represented, may have seen that the pleading which did not name her correctly and that this may have been one of the reasons why she has not defended.

[4] State Farm then wrote to me and pointed out that the defendant Ms. Ozueh had in fact been served with both the motion for judgment and the motion to amend and requested that I consider the remainder of the motion which had been adjourned.

[5] Through inadvertence I did not see the affidavit of service. I am thus, considering the default judgment motion.

Nature of the Action

[6] This action arises from a car accident which occurred on or about November 5, 2011. The defendant Ms. Ozueh was the driver of a car which crossed an intersection contrary to a red light signal and collided with the Plaintiff’s car. Ms. Ozueh was uninsured at the time.

[7] The defendant State Farm was the insurer for the Plaintiff and crossclaimed against Ms. Ozueh.

Service

[8] I am satisfied that the defendant Ms. Ozueh has been served personally with the motion as set out in the affidavit of service dated November 23, 2022. Therefore, I am considering the motion for judgment.

[9] I also satisfied that the defendant Ms. Ozueh was served with the Statement of Claim on or about April 23, 2014.

[10] Ms. Ozueh has not participated in these proceedings, she did not serve a Statement of Defence, and did not attend at the examinations for discovery.

[11] On September 6, 2018 State Farm provided Ms. Ozueh with a Notice of Election to Proceed with its crossclaim and recover settlement monies paid to the plaintiff.

[12] Ms. Ozueh was noted in default on October 26, 2018.

[13] In addition to serving the motion upon Ms. Ozueh, State Farm sent Ms. Ozueh a letter by registered mail on November 10, 2022 outlining the consequences of a default judgment against her as well as enforcement proceedings which may be taken against her.

Consequences of noting in default

[14] Pursuant to r. 19.02 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, having not defended the proceeding, the defendants are deemed to admit the truth of all allegations of fact made in the Statement of Claim. However, this does not mean that judgment flows automatically. The plaintiff must still prove its damages.

[15] Further, pursuant to r. 19.06 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 a plaintiff is not entitled to judgment on a motion for judgment or at a trial merely because the facts alleged in the statement of claim are deemed to be admitted, unless the facts entitle the plaintiff to judgment.

The test on a motion for default judgment

[16] The test on a motion for default judgement was set out in Elekta Ltd. v. Rodkin, 2012 CarswellOnt 2928 (ONSC) as follows: A. What deemed admissions of fact flow from the facts pleaded in the Statement of Claim? B. Do those deemed admissions of fact entitle the plaintiffs, as a matter of law to judgement on the claim? C. If they do not, has the plaintiff adduced admissible evidence which, when combined with the deemed admissions, entitled it to judgement on the pleaded claim?

The deemed admissions

[17] The Statement of Defence and Cross claim as against Ms. Ozueh sets out that she entered the intersection when it was not safe to do so, that she was travelling at an excessive rate of speed, that she did not have control of her motor vehicle, that she did not apply the brakes in time, that she did not keep a proper lookout, created an emergency situation, did not avoid an accident when she could have.

[18] State Farm sought contribution and indemnity as against Ms. Ozueh based upon their pleading.

Evidence Filed

[19] State Farm has filed evidence in respect of this matter which include police records in respect of the collision which document that Ms. Ozueh was at fault and did not have insurance. It also included clinical notes and records in respect of injuries suffered by the Plaintiff which include soft tissue injuries, ongoing jaw dysfunction, tension headaches, teeth grinding and disturbed sleep. The Plaintiff has had to see an oral specialist because of her “constant and throbbing” jaw pain. Medical records also document that the Plaintiff has suffered from persistent left shoulder pain following the accident and has had to attend for physiotherapy. She has also experienced psychological/mental impairments.

[20] The affidavit filed medical records documenting many other impairments which include the Plaintiff’s inability to attend the remainder of her classes in 2011 and other matters.

[21] State Farm’s legal and claims departments deemed the accident related injuries to be “permanent and serious” in nature consistent with section 267.5(5)(b) of the Insurance Act, R.S.O. 1990, c. I.8.

Settlement with the Plaintiff

[22] On October 9, 2018, the Plaintiff settled with State Farm for an all-inclusive sum of $45,000 in exchange for a release.

[23] By Order dated April 12, 2019, Master Graham dismissed the Plaintiff’s case against State Farm and allowed State Farm’s crossclaim to continue against Ozueh.

[24] Section 265(6) of the Insurance Act, R.S.O. 1990, c. I.8 provides an insurer with subrogation rights.

[25] I am satisfied that State Farm has adduced evidence as to the quantum of damages which the Plaintiff suffered, which it paid to the Plaintiff and for which it has sought judgment against Ms. Ozueh.

[26] I am satisfied that this quantum of damages is an appropriate award which is consistent with comparable cases.

[27] As such I am granting default judgment as asked in the amount of $45,000 together with costs in the amount of $2,520.67 as claimed on a partial indemnity basis.

Justice Papageorgiou Date: May 9, 2023