Court File and Parties
COURT FILE NO.: CV-19-80120 DATE: 2024/04/30 SUPERIOR COURT OF JUSTICE – ONTARIO
RE: SAMSON MACHARIA NGANGA and HAZINA WANGARI MACHARIA, BY HER LITIGATION GUARDIAN, DEBORAH KIMANI (Plaintiffs) AND SABAH ABDUL HUSSAIN (Defendant)
BEFORE: Madam Justice S. Corthorn
COUNSEL: Priya Shah, Counsel for the plaintiffs Jas Gill, Articling Student for the defendant No one appearing for the proposed party, Definity Insurance Company
HEARD: April 25, 2024 (By videoconference)
Endorsement
Introduction
[1] The plaintiffs’ claims arise from a May 2017 motor vehicle collision. The plaintiffs each allege that they sustained injuries and losses as a result of the collision between a vehicle which the adult plaintiff was driving and a vehicle owned and driven by the defendant.
[2] The policy of motor vehicle insurance pursuant to which the defendant’s vehicle was insured at the date of the collision has third party liability limits of $1,000,000. The total of the damages claimed by the plaintiffs in the statement of claim is $700,000. The plaintiffs also claim pre-judgment interest.
[3] The plaintiffs assert that, at the date of the collision, the vehicle, which the adult plaintiff was driving and in which the minor plaintiff was a passenger, was insured pursuant to a policy of motor vehicle insurance with third party liability limits of $2,000,000 and an OPCF 44R Family Protection Endorsement. That policy was issued by the Economical Mutual Insurance Company (“Economical”) to the adult plaintiff. Economical is now known as “Definity Insurance Company”.
[4] The plaintiffs bring this motion for leave to amend their statement of claim to (a) add Economical as a defendant, based on an OPCF 44R endorsement said to form part of the subject policy; (b) increase the quantum of damages claimed by the adult plaintiff from $500,000 to $2,000,000; and (c) include the requisite allegations related to a claim pursuant to an OPCF 44R endorsement.
[5] In addition, the plaintiffs ask for approval of a revised timetable – setting September 30, 2024 as the deadline by which the action must be set down for trial.
The Proposed Defendant
[6] The plaintiffs filed two affidavits of service – one regarding service of the motion record and the other regarding service of a factum and book of authorities. Both affidavits of service identify that the method of service relied on for service of the documents on Economical was to send a copy of the documents by email to an individual identified by name and as “the OPCF 44R adjuster”.
[7] The method of service upon which the plaintiffs rely regarding service of the documents on the proposed party does not satisfy the requirements of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, regarding service of documents on a corporation: see r. 16.03(6).
[8] Even if service by email was an acceptable method of service, the affidavits of service filed do not provide the court with the information required as evidence of service by email in compliance with r. 16.06(1). Where service by email is the method of service utilized, the affidavit of service must include the information set out in r. 16.06.1(1)(a)-(c). That information can either be included in the body of the affidavit of service or by including, as an exhibit, the cover email under which the documents were served.
[9] Counsel for the plaintiffs informed the court that an in-house lawyer with Economical communicated with her office on April 18, 2024. A copy of the motion materials was provided, by email, to that individual on the same date. There is no evidence that the in-house lawyer accepted service of the documents on behalf of Economical.
[10] Counsel for the plaintiffs informed the court that the in-house lawyer informed her that Economical takes no position on the motion. In the absence of evidence of service of the requisite documents on Economical, it was not possible to hear the motion.
[11] I turn to the defendant’s response to the motion.
The Defendant
[12] The defendant opposes the motion.
[13] In her responding materials, the defendant raises several arguments. First, the defendant raises the potential expiration of the limitation period applicable to the plaintiffs’ claims. The defendant does so without citing the limitation period she asserts may have expired. The defendant relies on the potential expiration of a limitation period as giving rise to a presumption of prejudice to the defendant.
[14] Second, the defendant asserts that the plaintiffs failed to provide an adequate explanation for their delay in bringing the motion for leave to amend the statement of claim. The defendant highlights that the motion is brought approximately seven years after the date of the collision; almost five years since the statement of claim was issued; more than three years since each of the plaintiffs was examined for discovery; and more than five months following a failed mediation.
[15] The defendant’s position is that she would, if she had been aware of the potential for the plaintiffs’ claim to exceed the $1,000,000 in third party liability limits available to her, have defended the action differently. The defendant makes this point in support of the prejudice which she alleges she will suffer if leave to amend is granted.
[16] Third, the defendant’s position is that if the plaintiffs are granted leave to amend the statement of claim, the defendant is entitled to an order requiring the plaintiffs to pay the costs incurred by her, for legal representation related to her personal exposure, in the event the damages and interest ultimately recovered by the plaintiffs fall below $1,000,000. In support of this alternative relief, the defendant relies on the decision of Short, A.J. in Tate v. Bishop et al., 2015 ONSC 742.
[17] Regardless of the position Economical ultimately takes, once served with the requisite motion materials, the motion is a contested motion because the defendant opposes the relief sought. The notice of motion identifies that the motion is to be before a judge. It was clear, therefore, that the motion would be heard by a judge of this court – not by an associate judge.
[18] Despite it being known to counsel for the defendant that the matter would proceed as a contested motion before a judge, counsel assigned an articling student to attend on behalf of the defendant. Once given the opportunity to check whether she had the ability to argue a contested motion before a judge, the articling student acknowledged that she has the ability to argue a contested motion before an associate judge only.
[19] I do not fault the articling student for attending on a matter on which she is not permitted to make submissions. The responsibility for placing the articling student in the position in which she found herself is that of counsel. When the motion is continued before this court, the defendant must be represented by an individual who has the ability to appear on the matter.
The Evidence in Support of the Relief Requested
[20] Each of the three affidavits in support of the plaintiffs’ motion is from their lawyer of record (a lawyer other than the lawyer who appeared on the return of the motion). In her first affidavit, the lawyer refers to the policy of motor vehicle insurance issued by Economical to the adult plaintiff and to Deborah Kimani (the litigation guardian for the minor plaintiff). The lawyer’s evidence is that a copy of the subject policy is exhibit “B” to that affidavit.
[21] The document attached as exhibit “B” to the lawyer’s first affidavit is titled “Certificate of Automobile Insurance” and is four pages in length. That document summarizes the coverage provided under the policy and identifies a $23 premium paid for “Uninsured Automobile”. At page 2 of the document, “Uninsured Automobile” is defined as “Provides coverage if you or other insured persons are injured or killed by an uninsured motorist or by a hit-and-run driver. It covers damage to your automobile and its contents caused by an identified uninsured motorist.” The definition makes no mention of OPCF 44R coverage.
[22] The document attached as exhibit “B” to the lawyer’s first affidavit is not a copy of the subject policy; nor does it include any reference to an OPCF 44R endorsement forming part of the policy.
[23] In summary, the evidence before the court at this time does not support a conclusion that the plaintiffs have coverage available to them from Economical pursuant to an OPCF 44R endorsement. Better evidence in that regard is required on the continuation of the motion.
The Request for a Revised Timetable
[24] The lawyer’s evidence is that the date on which this action is subject to an administrative dismissal is May 8, 2024. It will not be possible for the plaintiffs to secure a return date for the continuation of the motion, which precedes May 8, 2024.
[25] In neither the responding affidavit nor the responding factum, does the defendant take a position regarding the plaintiffs’ request for an order extending the deadline by which the action is to be set down for trial from May 8, 2024 to September 30, 2024.
[26] It is reasonable, in the circumstances, to grant that element of the relief requested by the plaintiffs. Because of the adjournment of the balance of the plaintiffs’ motion, the parties may ultimately require a further extension of the deadline by which the action is to be set down for trial. It will be up to the parties to address that issue, in time, if required.
Interim Disposition
[27] For the reasons set out above, the court makes the following order:
- The deadline by which the action is to be set down for trial shall be extended from May 8, 2024 to September 30, 2024.
- The balance of the plaintiffs’ motion is adjourned, to be brought back in accordance with the procedure set out in the most recent Notice to the Profession.
- The plaintiffs shall deliver a supplementary motion record which includes evidence addressing the existence of an OPCF 44R endorsement in the policy of motor vehicle insurance issued by the proposed defendant to the adult plaintiff and in effect as of the date of the subject motor vehicle collision.
- The supplementary motion record referred to in paragraph 3, above, shall include a copy of this endorsement (as a discreet document, tabbed separately from the additional affidavit(s)).
- The plaintiffs shall deliver a factum intended to replace their existing factum. The plaintiffs shall be entitled to rely on this second factum, only, on the continuation of the motion.
- The defendant shall be entitled to deliver a factum in response to the plaintiffs’ second factum or to rely, instead, on her factum dated April 15, 2024.
- The plaintiffs shall, regardless of whether the defendant chooses to rely on her existing factum or to serve a second factum, be entitled to deliver a reply factum.
[28] In light of the lack of service of the motion materials on Economical, the deficiencies in the supporting evidence, and the appearance of an articling student on behalf of the defendant (on a contested motion before a judge of this court), there shall be no costs of the motion to this date. Specifically, neither the plaintiffs nor the defendant shall be entitled to costs related to preparation of materials for the motion, service of materials, or a counsel fee for the appearance on the initial return of the motion.
[29] I am not seized of the matter. The motion may continue before any judge of this court. Having chosen to proceed before a judge, and not before “the court”, the plaintiffs shall schedule the continuation of the motion before a judge and not before an associate judge.
Date: April 30, 2024
Madam Justice S. Corthorn