Court File and Parties

COURT FILE NO.: CV-19-00619275-00A1 DATE: 20241122 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

KAREN-LEE MILLER Plaintiff – and – TELISHA MARION MARIE MULLINGS Defendant

Counsel: Meghan M. Hull and Daniel Rabinovitch, for the Plaintiff Stephanie Sharples, for the Defendant Daniel Himelfarb, for the proposed added third party Shreeji Hospitality of University, LLC Ramada Clarion

– and – URAL ROBINSON Third Party

HEARD: November 4, 2024

Papageorgiou J.

Overview

[1] The plaintiff, Karen-Lee Miller (the “Plaintiff”) was in a car accident with the defendant, Telisha Marion Marie Mullings, (the “Defendant”) on July 22, 2017. The Plaintiff commenced this claim and the Defendant filed her defence on July 4, 2019.

[2] On April 14, 2018, the Plaintiff was in an incident in North Carolina involving a van transfer from a hotel while on vacation. The Plaintiff was a passenger and alleged that the driver of the vehicle swerved, such that she spilled coffee on herself. The Plaintiff has never sued anyone in respect of the incident in North Carolina, but she did write to the driver’s employer, who was the owner of the vehicle she was in, to request reimbursement for medical expenses. It is unclear on this record what the nature of her injuries was or whether she was paid anything upon her request for reimbursement.

[3] When the Defendant examined the Plaintiff for discovery in 2020, the Defendant learned of the 2018 incident in North Carolina. On September 20, 2020, the Defendant then issued a Third-Party claim against the driver of the vehicle in North Carolina, Ural Robinson (the “Driver”), claiming contribution and indemnity.

[4] Although the Driver was a resident of North Carolina, he filed his defence in Ontario on April 7, 2021, attorning to Ontario court’s jurisdiction.

[5] As will become apparent, the Defendant made a few attempts to examine the Driver without success. The Driver’s defence was eventually struck. On June 3, 2024, the Driver’s counsel obtained an Order removing itself from the record.

[6] These events prompted the Defendant to become concerned and to seek to add Shreeji Hospitality of University, LLC Ramada Clarion (the “Owner”), the owner of the vehicle in the 2018 incident in North Carolina as a third party which is the motion before me.

[7] The Owner opposes this on the basis of delay, non-compensable prejudice and jurisdiction. If the Owner is added as a party, it will pursue a limitation defence at trial.

[8] The trial is scheduled to commence on January 13, 2025.

Decision

[9] For the reasons that follow, I dismiss the motion.

Issues

• Issue 1: Does the Defendant require leave to bring this motion and if so, should leave be given?
• Issue 2: Should the court exercise its discretion to grant leave to the Defendant to add the Owner as a defendant to the Third-Party Claim?
• Issue 3: Should production Orders be made against Progressive Insurance?

Analysis

Issue 1: Does the Defendant require leave to bring this motion and if so, should leave be given?

[10] The Plaintiff set down this action for trial on September 22, 2022. The Defendant has not set the Third-Party Claim down for trial.

[11] The Owner relies upon r. 48.04 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, to assert that leave is required for the Defendant to bring this motion on the basis that even if the Defendant did not set down the Third-Party claim for trial, it nevertheless attended at Trial Scheduling Court and agreed to the trial dates.

[12] I disagree.

[13] Up until 2021, r. 48.04(1) read as follows:

48.04(1) Subject to subrule (3), any party who has set an action down for trial and any party who has consented to the action being placed on a trial list shall not initiate or continue any motion or form of discovery without leave of the court.

[14] In 2021, r. 48.04(1) was changed and now reads as follows:

48.04 (1) Subject to subrule (3), a party who has set an action down for trial shall not initiate or continue any motion or form of discovery without leave of the court. O. Reg. 343/21, s. 1.

[15] The legislature removed the wording whereby those who consented to an action being placed on a trial list also had to obtain leave.

[16] Therefore, the Defendant does not require leave to bring this motion.

Issue 2: Should the Court exercise its discretion to grant leave to the Defendant to add the Owner as a defendant to the Third-Party Claim?

[17] There is no issue that the allegations as against the Owner arise out of the same transaction or occurrence as the subject matter of the Third-Party claim and that it would satisfy the test for joinder but for the issue of delay and non-compensable prejudice: r. 5.04(2) of the Rules of Civil Procedure and Steel Tree Structures Ltd. v. Gemco Solar Inc., 2016 ONSC 955, 87 C.P.C. (7th) 422, at para. 27.

[18] In Mazzuca v. Silvercreek Pharmacy Ltd. (2001), 56 O.R. (3d) 768 (Ont. C.A.), at para. 30, the court indicated that even where there is no non-compensable prejudice, pursuant to r. 5.04 of the Rules of Civil Procedure, the court retains the discretion to refuse to add a party. The court referenced Derek McKay and Garry Watson, Homlested and Watson: Ontario Civil Procedure, vol. 2 (Toronto: Carswell, 1993), at pp. 534-535, where the writers indicated that the discretion is meant to ensure procedural fairness, and that consideration should be given to matters such as the state of the action, whether the trial is imminent, and whether examinations for discovery have already been had: at para. 25; see also Cook v. Toronto Police Service Board (2006), 30 C.P.C. (6th) 183 (Ont. S.C.J.), per Master J.M. Haberman.

Delay

[19] It has been four years since the Third-Party Claim was issued in September 2020, and two years since the main action was set down for trial. Examinations have occurred and the trial is imminent.

[20] The Defendant says that she has behaved in a diligent manner at all times to figure out who the owner of the vehicle was. She sought to examine the Driver by delivering notices of examination on two occasions, August 24, 2022, and December 9, 2022, but the Owner did not attend.

[21] The Defendant then brought a motion on November 16, 2023, where the court ordered that the Driver provide a proper sworn affidavit of documents, attend at discovery, and answer undertakings. The Driver failed to attend again on January 15, 2024, and his counsel failed to provide an answer as to who the Owner was in follow up correspondence.

[22] Afterwards, the Driver’s defence was struck and his lawyer moved to get off the record which prompted the Defendant to bring a motion to add the Owner.

[23] The Defendant’s argument that she did not know the identity of the Owner until she received the Owner’s responding record to this motion in September 2024, makes little sense since the Defendant served the motion to add the Owner in June 2024, which was before she received the responding motion record.

[24] Clearly, the Defendant had some means of obtaining the information she sought, which must have been Progressive Insurance’s Declaration, listed in an unsworn affidavit of documents provided to the Defendant in October 2021. The Declaration specifically identified the Owner as an owner of six vehicles. There would be no reason for the Driver to list and produce this document if this was not the relevant insurance policy.

[25] The Defendant said he took no steps to investigate who the Owner was after he received the Declaration page.

[26] Thus, it has also been three years since the Defendant had the means of knowing who the Owner was, even if she did not yet have evidentiary confirmation. Pleadings are generally drafted before there is evidentiary confirmation of the facts stated in them.

[27] If the Defendant had intended to sue the owner of the vehicle, but truly did not know who that was, she could have also issued the claim as against John Doe the owner, which is often done in litigation in such cases, but she did not do this either.

[28] I infer from the sequence of events and the facts before me that the Defendant did not move sooner because she felt she did not have to. That is, to the extent there is an argument that the Plaintiff’s current medical condition is in part due to the 2018 incident, the Defendant had issued a Third-Party claim against the Driver and it had received a Declaration of insurance which suggested there was available insurance.

[29] The Defendant was at liberty to pursue the case in this way, but this approach carried with it the risk that there could be issues with insurance coverage for the Driver. And then issues materialized after the Driver’s defence was struck because there was a risk that the Driver’s insurer would deny coverage. If that happened, the Defendant needed to also sue the owner of the vehicle to be able to access the insurance coverage.

[30] The Defendant also caused delay by improperly scheduling this matter before an Associate Judge such that it had to be adjourned to be heard by a Judge. Regarding the fact that the Defendant could not obtain a motion date before the Superior Court before November, it is well known that there are delays in scheduling motions; the Defendant should have sought to schedule the motion sooner and before the correct Judicial officer.

[31] There is a crisis in the civil justice system where significant delays exist and court dates are lost because of adjournments. Failing to move to add the Owner in a timely manner, before the correct court jeopardizes the trial date. The other parties, and the civil justice system itself, should not bear the cost of the Defendant’s delay and strategic decisions about who to sue at the outset.

[32] Even if the Defendant had had no means of ascertaining the identity of the owner of the vehicle, scheduling two examinations for discovery in 2022, followed by a motion in November 2023, could hardly be considered “exhaustive efforts,” as is alleged in the Defendant’s affidavit material.

[33] I find that there is an insufficient explanation for the delay in these circumstances, that the delay was inordinate, and that this is a relevant consideration for this motion.

Non-Compensable Prejudice

[34] The inordinate delay results in a presumption of prejudice: Horani v. Manulife Financial Corporation, 2023 ONCA 51, at paras. 25, 32. The Defendant has failed to rebut the presumption. Further, even if the onus had been on the Owner to prove actual non-compensable prejudice, it has done so.

[35] The Defendant argues there is no non-compensable prejudice because:

• Progressive Insurance is the same insurer for both the Driver and the Owner.
• Progressive Insurance defended the Driver until June 3, 2024, pursuant to the same insurance policy applicable to the Owner.
• Ontario-based counsel for the Driver has examined the Plaintiff, had full documentary disclosure from Plaintiff’s counsel, attended at Trial Scheduling Court, and has had numerous discussions and active involvement in the defence of this action since April 2021.
• Also, since 2021, Elaine Berringer of Progressive Insurance has been the adjuster/claims specialist as it relates to the April 14, 2018 incident on behalf of the Driver.
• There is an email from the Owner to the Plaintiff, dated shortly after the incident, which shows that it received the Plaintiff’s written description of the incident at the time and also obtained this statement from the Driver:

On April 14, 2018 I picked up guest at zone B and she had a coffee that she had purchased at the airport. I told her that she wasn't suppose to have coffee on the shuttle. And she insisted that she wanted to take it on the shuttle. The guest was sitting up in the seat behind the driver's seat. I made a sudden turn to avoid a vehicle that pulled in my path. The guest fell forward between the seats and the coffee spilled on the seats and the driver's log. I asked the guest if she was ok and she stated that she was indeed alright.

[36] However, even if Progressive Insurance essentially ran the defence of the Driver and will also be running the Owner’s defence if added, the Owner would still be entitled to its own defence and procedural rights. This would include review of any steps taken so far and consideration of whether additional steps need to be taken in view of the allegations against it. Here, it is highly relevant that the claim against the Driver is not the same as the claim against the Owner.

[37] The claim against the Driver relates to his negligence as a driver. There is a minor pleading related to mechanical failure of the vehicle.

[38] The proposed Third-Party Claim pleads that the Owner was responsible in law for the alleged negligence of the Driver because it failed to maintain the vehicle in a fit and proper condition that was suitable for operation, it permitted an incompetent driver to operate the vehicle, it failed to provide the Driver adequate training for the safe operation of the vehicle, and it consented to the use of the vehicle when it knew or ought to have known that the Driver was incapable of driving properly. [1]

[39] Mr. Sammet, the operations manager of the Owner, says that due to the passage of time, the Owner does not have any records that would assist it in defending these claims and in particular in determining which vehicle was involved in the 2018 incident.

[40] Further, the Driver left the Owner’s employ in 2022 when the Owner did not know that any claim would be made against it in relation to the 2018 incident. While the Owner did do some sparse investigations in 2018, once it appeared the Plaintiff was not pursuing any claim against it, it would have had no reason to complete fulsome investigations to address the kinds of claims asserted against it now. Although the Owner has the same insurer, the insurer would also have had no reason to make the kinds of inquiries related to the specific claims now advanced against the Owner.

[41] The Owner is now in the position where it has a significantly reduced ability to obtain information from the Driver, who has stopped participating and whose defence has been struck.

[42] If the Driver is subpoenaed, attends trial and gives damaging evidence relating to his training or the condition of the vehicle, the Owner will be compromised in its ability to contradict any such evidence because of the delay and loss of records. If the Driver does not appear, then the Plaintiff’s evidence as to the Driver’s conduct will be uncontradicted and the Defendant asserts that the Owner is vicariously liable.

[43] Had the action been advanced against them both at the same time in 2020, or even in 2021 when the Defendant received the Progressive Insurance Declaration, the Owner could have used its status as employer to compel the Driver to assist it with the necessary investigations, and even attend at discovery, since employees must act in the best interests of their employer. This is no longer possible.

[44] There is also the Plaintiff to consider. The accident, which is the subject of the main claim, occurred seven years ago. The Owner will seek an adjournment of that trial if added, and the Plaintiff opposes any delay for a good reason.

[45] Pursuant to s. 267.5 of the Insurance Act, R.S.O. 1990, c. I.8, the Plaintiff is limited to claiming 70 percent of her income loss up until the trial, as opposed to 100 percent thereafter. Therefore, there is real economic prejudice caused by any delay.

[46] Pursuant to r. 29.08(2) of the Rules of Civil Procedure, the trial of a Third-Party claim shall occur at or immediately after the trial of the main action unless the court orders otherwise. While the court could make an order delaying the Third-Party Claim only, this would result in many of the same witnesses having to attend, including the Plaintiff. This will be inefficient and will result in additional court time for this matter, which is not in the interest of the justice system as a whole.

Jurisdiction

The Law

[47] In order to assume jurisdiction over a defendant, this court must be satisfied that the dispute as against a particular defendant has a real and substantial connection to Ontario: Club Resorts Ltd. v. Van Breda, 2012 SCC 17, [2012] 1 S.C.R. 572, at para. 100.

The Presumptive Connecting Factors

[48] In Van Breda, the Supreme Court established the following presumptive connecting factors that, prima facie, entitle a court to assume jurisdiction in Ontario:

a. The defendant is domiciled or resident in Ontario; b. The defendant carries on business in Ontario; c. A tort was committed in Ontario; or d. A contract connected with the dispute was made in the province.

See Tucows.Com Co. v. Lojas Renner S.A., 2011 ONCA 548, 106 O.R. (3d) 561, at para. 36; Ecolab Ltd. v. Greenspace Services Ltd. (1998), 38 O.R. (3d) 145 (Ont. Div. Ct.) at pp. 149, 153; Schreiber v. Mulroney (2007), 88 O.R. (3d) 605 (Ont. S.C.J.), at para. 18.

[49] The Defendant relies upon Thind v. Polycon Industries, 2022 ONSC 2322. The court concluded that it had jurisdiction over a foreign defendant based upon the first presumptive connecting factor, that the defendant was domiciled in Ontario because two of the other defendants were domiciled in Ontario and there was an aspect of the tort that occurred in Ontario. In that case, loaded cargo was loaded in Ontario and transported to Ohio. When the plaintiff began unloading the cargo in Ohio, it fell and hit his back causing an injury. The plaintiff alleged negligence with respect to the way in which the cargo was loaded and secured in Ontario thereby creating a danger that caused his injuries.

[50] The court in Thind reasoned that if there was a connection in respect of the factual and legal situation, the court should assume jurisdiction over all aspects of the case including over the foreign defendant.

[51] Thind is distinguishable because the court also found as a fact that the tort itself was sufficiently presumptively connected to Ontario and satisfied the second presumptive factor such that there was a real and substantial connection between the subject matter of the dispute with Ontario. Notably, the claim against the foreign defendant arose out of the same incident that was substantially connected to Ontario. The negligence was pleaded to have occurred in Ontario by virtue of the way the cargo was loaded in Ontario by all three defendants in Ontario and this was not contested on the motion.

[52] This is not the case here. These are two separate incidents and the 2018 incident has no connection with Ontario.

[53] The recent decision Sinclair v. Amex Canada Inc., 2023 ONCA 142, 478 D.L.R. (4th) 683, leave to appeal granted, [2023] S.C.C.A. No. 154, is relevant here.

[54] Sinclair was primarily concerned with the fourth presumptive factor but in analyzing that issue, the Court explained that lower courts had not been applying Van Breda with sufficient rigor. The Court further explained that consideration of presumptive connecting factors should be viewed from the perspective of the defendant disputing jurisdiction. A court cannot “bootstrap” territorial jurisdiction against one defendant because it established jurisdiction against another. There has to be a presumptive connecting factor with respect to each defendant: at paras 18-19.

[55] From the Owner’s perspective, the 2018 incident is not connected to Ontario, just because the Defendant claims that the Owner’s conduct caused or contributed to the Plaintiff’s damages claimed in the Ontario proceeding. This incident did not occur in Ontario. The injury did not occur in Ontario. The Owner is not domiciled in Ontario and does no business in Ontario. The court in Van Breda specifically noted that the fact that damages were sustained in Ontario is not a presumptive connecting factor: para 89.

[56] Although there are concerns here with inconsistent verdicts and multiplicity of proceedings, in Van Breda, the Court also stated, at para 82, that “abstract concerns for order, efficiency or fairness in the system are no substitute for connecting factors that give rise to a “real and substantial” connection for the purpose of the law of conflicts.

New Presumptive Connecting Factors?

[57] I also reject the Defendant’s argument that a Third-Party claim in respect of an incident in a foreign jurisdiction, without more, is an analogous connecting factor.

[58] The Defendant references the fact that Ontario law expressly permits claims for contribution and indemnity in this case: Negligence Act, R.S.O. 1990, c. N.1, at s. 1.

[59] The Defendant also relies on r. 29.01 of the Rules of Civil Procedure and s. 5 of the Negligence Act, that permit Third-Party claims where it appears that a person not already a party to an action is or may be wholly or partly responsible for the damages claimed.

[60] However, in Sinclair, the Court specifically addressed and rejected this kind of argument:

Indeed, the respondents advance what I consider to be the astonishing proposition that a defendant can clothe a court with jurisdiction over other defendants just because it exercises its rights, under Ontario’s Rules of Civil Procedure, R.R.O. 1990, Reg. 194, to make a crossclaim against defendants that have been made parties by the plaintiff. I do not know of any case that would substantiate such a sweeping mechanism for conferring jurisdiction: at para. 40

[61] See also Export Packers Company Limited v. SPI International Transportation, 2012 ONCA 481, at para. 20: where the court similarly stated its stance on adding foreign parties to Third-Party claims:

The fact that a foreign party qualifies as a proper subject of a Third-Party claim is not, by itself, a reliable indicator that there is a real and substantial connection to support the assertion of jurisdiction over that foreign party.

[62] Additional considerations here relate to the Defendant’s argument that multiple concurrent tortfeasors are 100 percent responsible for all indivisible damages suffered by a plaintiff, which can be reduced via apportionment as between them: Athey v. Leonati, [1996] 3 S.C.R. 458. The Defendant argues that Ontario law will make it 100 percent liable unless it can seek contribution and indemnity through a Third-Party claim.

[63] However, the Defendant has failed to plead or provide any evidence that the alleged damages caused by the 2017 accident are indivisible from the alleged damages caused by the 2018 incident. This is another distinction from Thind where there was a finding that the damages were indivisible. I note here that there are significant damages claimed in respect of the 2017 accident and the most that is before me with respect to the 2018 incident is that the Driver swerved and the Plaintiff spilled coffee on herself.

[64] The fact that the insurance policy is the same or that the Driver attorned is not sufficient in and of itself to create a new presumptive connecting factor. The Progressive insurance policy is written in North Carolina and does not create any connection to Ontario. And as Sinclair has held, jurisdiction over one defendant cannot be bootstrapped based on jurisdiction over another.

[65] Additionally, the Driver attorned before Sinclair, which provided clarification. The insurer is taking a different position because it asserts that the law has changed and it is entitled to rely on new law.

[66] Furthermore, the Defendant has not addressed and provided persuasive evidence and argument regarding the list of factors relevant to the recognition of a new presumptive connecting factor set out in Van Breda: para 91. It has not shown how the present fact pattern is similar to the presumptive connecting factors. It has not shown how this proposed connecting factor is treated in statute law, apart from the fact that Third-Party claims may be asserted pursuant to Ontario law, which Export Packers has already determined is not sufficient by itself. The Defendant has not provided any evidence as to how this circumstance is treated internationally in the private law of other legal systems.

[67] I leave it to another day, given Sinclair, as to whether the circumstance that a Third-Party claim relates to damages that are indivisible from the damages claimed in an Ontario proceeding, is sufficient to establish an analogous presumptive circumstance, where the issue is properly pleaded and/or sufficient evidence and analysis is provided as required by Van Breda.

Should Ontario Assume Jurisdiction on the Basis of Necessity?

[68] I would also not assume jurisdiction on the basis of necessity.

[69] This doctrine has not been applied by many courts and is reserved for exceptional cases. A party seeking to invoke it must establish it cannot reasonably seek relief in the foreign jurisdiction. For example, the Court of Appeal, relying on Van Breda, identified that the doctrine of necessity applies where there is a “breakdown of diplomatic or commercial relations with a foreign State, the need to protect a political refugee, or the existence of a serious physical threat if the debate were to be undertaken before a foreign court”: West Van Inc. v. Daisley, 2014 ONCA 232, 119 O.R. (3d) 481, at para. 40.

[70] The Defendant references one similar case, Josephson v. Balfour Recreation Commission 2010 BCSC 603, 10 B.C.L.R. (5th) 369, where the doctrine was successfully invoked, although it was prior to Van Breda. It involved a plaintiff resident in Idaho but injured in British Columbia. He was treated in a hospital in British Columbia and then in a hospital in Idaho. He sued the defendant in British Columbia. The plaintiff did not sue the hospital in Idaho, but the defendant alleged that the plaintiff had received negligent medical treatment in the Idaho hospital. The defendant brought a Third-Party claim against the Idaho hospital in the British Columbia proceeding, seeking contribution and indemnity.

[71] The court found the factual matrix of the Third-Party claim was very closely connected to the claim initiated by Mr. Josephson. It concluded that the only practical approach was for one court to hear all of the matters relating to the cause of Mr. Josephson’s injuries. Because the party could not obtain any relief elsewhere, the court found that the Court should assume jurisdiction.

[72] In West Van Inc. v. Daisley, a party argued that Ontario was the forum of necessity because it had been unable to retain counsel in the jurisdiction which was connected to the matters at issue, and it felt that it would not receive a fair trial in that jurisdiction. The court in West Van distinguished Josephson and indicated that it was doing so without endorsing or agreeing with the reasoning in Josephson, which does suggest some skepticism over the result.

[73] In any event, in Josephson, there was an agreement among the parties that a non-patient in Idaho could not bring a proceeding for contribution and indemnity from a hospital or doctor, and that Idaho had abolished joint and several liability in most actions. There was also expert evidence that established that a proceeding could not reasonably be brought in Idaho because of the law there.

[74] Here, the Defendant has provided no evidence relating to North Carolina law to support its argument that it cannot bring its claim there. It relies solely upon an affidavit from Ontario counsel who has not provided information nor a belief as to the applicability of North Carolina law and whether it could pursue a claim for contribution and indemnity as a standalone proceeding in North Carolina.

[75] Given the extraordinary nature of the relief requested, there should have been some expert evidence on North Carolina law to clarify precisely whether the Defendant could sue the Owner in North Carolina in a separate action. Again, there should have also been some evidence on, or at least reference to pleadings that support the argument that the Plaintiff’s damages are indivisible.

Issue 3: Should production Orders be made against Progressive Insurance?

[76] The Defendant seeks orders that the non-party, Progressive Insurance, provide information regarding the following:

a) That Progressive Commercial Policy 0296255-1 is applicable to the April 14, 2018 loss. b) Whether the Driver is covered under the Progressive Insurance policy no. 0298625-1. c) Disclosure with respect to the amount of money available under the subject policy, and any particulars of any conditions affecting its availability. d) To identify the make/model of the subject vehicle and to identify the owners of the subject vehicle that the Driver was operating at the time of the April 14, 2018 loss. e) An Order that the non-party, Progressive Insurance, in its capacity as insurer for the Owner, produce copies of all documents in its possession, power, and control pertaining to the insurance on the Third-Party Vehicle and the incident occurring on April 14, 2018, involving the Plaintiff, including but not limited to i. the complete underwriting file; ii. the proper Declaration page; and ii. the complete insurance adjusting claims file and all documents contained therein (except those already produced by the Driver).

[77] The Defendant relies upon the following rules from the Rules of Civil Procedure:

30.02 (1) Every document relating to any matter in issue in an action that is or has been in the possession, control or power of a party to the action shall be disclosed as provided in rules 30.03 to 30.10, whether or not privilege is claimed in respect of the document.

(3) A party shall disclose and, if requested, produce for inspection any insurance policy under which an insurer may be liable,

(a) to satisfy all or part of a judgment in the action; or

(b) to indemnify or reimburse a party for money paid in satisfaction of all or part of the judgment,

but no information concerning the insurance policy is admissible in evidence unless it is relevant to an issue in the action.

30.03 (1) A party to an action shall, within ten days after the close of pleadings, serve on every other party an affidavit of documents (Form 30A or 30B) disclosing to the full extent of the party’s knowledge, information and belief all documents relating to any matter in issue in the action that are or have been in the party’s possession, control or power.

31.06(4) A party may on an examination for discovery obtain disclosure of,

(a) the existence and contents of any insurance policy under which an insurer may be liable to satisfy all or part of a judgment in the action or to indemnify or reimburse a party for money paid in satisfaction of all or part of the judgment; and

(b) the amount of money available under the policy, and any conditions affecting its availability.

[78] These rules relate to what the Driver, as a party, must disclose. They do not provide for any orders to be made against a non-party.

[79] The Defendant also relies upon r. 30.10(1) of the Rules of Civil Procedure:

30.10 (1) The court may, on motion by a party, order production for inspection of a document that is in the possession, control or power of a person not a party and is not privileged where the court is satisfied that,

(a) the document is relevant to a material issue in the action; and

(b) it would be unfair to require the moving party to proceed to trial without having discovery of the document. R.R.O. 1990, Reg. 194, r. 30.10 (1)

[80] Although Progressive Insurance is a foreign entity with no presence in Ontario, it has been running the defence of the Driver who attorned, which must have been with its consent. I am satisfied that it is appropriate that Progressive Insurance provide the information sought in items a) through d) above as the insurer for the Driver. I am not satisfied that the complete underwriting file must be produced at this time. The Defendant provided no case law in support of such a broad order, apart from Lica v. Dhaliwal, 2015 ONSC 3888, which involved a situation where coverage had been denied and the plaintiff brought a motion to obtain detailed information as to why coverage was denied. At this stage coverage has not yet been denied.

Costs

[81] The Owner is the successful party in respect of the motion to add it as a party and is presumptively entitled to costs. It seeks $9,661.50 on a partial indemnity basis. This is comparable to the costs claimed in the Defendant’s Bill of Costs. The time spent and rates charged are reasonable Thus the costs claimed are within the reasonable contemplation of the Defendant: Boucher v. Public Accountants Council for the Province of Ontario (2004), 71 O.R. (3d) 291 (C.A.), at para. 26.

[82] However, the Bill of Costs for both parties did not separate out the costs related to the production motion. I would award no costs in respect of that motion because there was divided success.

[83] Thus, I deduct $1,000 from the partial indemnity costs claimed by the Owner for a costs award in the amount of $8,661.50.

Conclusion

[84] Given the delay, the non-compensable prejudice and absence of jurisdiction, I dismiss the motion to add the Owner as a party and award the Owner $8,661.50 in costs.

[85] I make certain production orders but decline to order production of the entire underwriting file. If Progressive Insurance denies coverage and brings a motion to become a statutory fourth party, an urgent motion may be brought before me regarding the request for production of the underwriting file with materials that would permit the court to conduct the necessary analysis.

Papageorgiou J.

Released: November 22, 2024

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: KAREN-LEE MILLER Plaintiff – and – TELISHA MARION MARIE MULLINGS Defendant – and – URAL ROBINSON Third Party

REASONS FOR JUDGMENT Papageorgiou J. Released: November 22, 2024

[1] The proposed claim also pleads vicarious liability for the Driver’s negligence on the basis of an Ontario statutory presumption of agency upon the introduction of either proof of ownership or proof of registration of the vehicle. It is unknown whether North Carolina has similar vicarious liability laws in these circumstances and which law would apply if the laws are different.