Court File and Parties
COURT FILE NO.: CV-15-527921 DATE: 20240418 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
PORTIA YAA BOATENG Plaintiff – and – JOHN DOE, ANTHONY WILLIAMS, IVAN DIVKOVIC, DEIDRE RICHARDS and SECURITY NATIONAL INSURANCE COMPANY Defendant
Counsel: Natasha Germanski, for the Defendant, Security National Insurance Company
READ: APRIL 17, 2024 Papageorgiou J.
Overview
[1] The within action arises out of a motor vehicle accident that occurred on May 21, 2013, westbound on Steeles Avenue West at its intersection with Kipling Avenue, in the City of Toronto, in the Province of Ontario.
[2] The Plaintiff, Portia Yaa Boateng, was the operator of a 2003 Mazda motor vehicle. The Co-Defendant, Ivan Divkovic, was the registered owner of a 2007 Yamaha motorcycle. On the day of the accident, the Co-Defendant, Anthony Williams, was the operator of the 2007 Yamaha motorcycle.
[3] The Plaintiff proceeded through the intersection at Steeles Avenue West and Kipling Avenue, intending to make a left-hand turn, when the Yamaha motorcycle traveling westbound along Steeles Avenue West struck the Mazda motor vehicle on the front left side. The Co-Defendant, Anthony Williams, fled the scene of the accident on foot.
[4] Security National Insurance Company (“Security National”) was the Plaintiff’s insurer and also a defendant.
[5] Security National settled the Plaintiff’s claim by way of payment of $300,000 and took an assignment of her claim.
[6] Security National through the Plaintiff by virtue of Assignment dated December 28, 2022, seeks Default Judgment against the at-fault owner and operator of the Yamaha motorcycle, Anthony Williams and Ivan Divkovic.
[7] Pursuant to r. 19.02 of the Rules of Civil Procedure, having not defended the proceeding, a defendant is deemed to admit the truth of all allegations of fact made in the Statement of Claim.
[8] However, pursuant to r. 19.06 of the Rules of Civil Procedure 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.
[9] In particular, r. 19.05 of the Rules of Civil Procedure provides that a motion for judgment which involves unliquidated damages shall be supported by evidence given by affidavit.
Deficiencies
[10] There are a number of deficiencies in the materials as follows.
[11] Although Security National says that the amount it paid in settlement of the main action was reasonable and fair as compensation for the injuries, impairments, losses and damages sustained by the Plaintiff, it has not provided any evidence to support this. I remind National Security of r. 19.05.
[12] Security National has not provided any caselaw or factum supporting the reasonableness of the settlement based upon the Plaintiff’s injuries.
[13] I direct that Security National provide such material within 14 days failing which the motion shall be dismissed without prejudice to Security National bringing this motion again.
[14] Any additional materials may be emailed directly to my assistant.
Papageorgiou J.
Released: April 18, 2024
Reasons for Judgment
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
PORTIA YAA BOATENG Plaintiff – and – JOHN DOE, ANTHONY WILLIAMS, IVAN DIVKOVIC, DEIDRE RICHARDS and SECURITY NATIONAL INSURANCE COMPANY Defendant
REASONS FOR JUDGMENT
Papageorgiou J.
Released: April 18, 2024