Ontario Superior Court of Justice

Court File No.: CV-15-21829
Date: 2025-05-08

Between:
Eunice Lucas-Logan, Plaintiff
and
Certas Direct Insurance Company and 2089402 Ontario Inc., Defendants

Heard: August 19 and September 5, 2024
Released: May 8, 2025
Judge: Jennifer E. Bezaire

Appearances:

• Eunice Lucas-Logan, acting in person
• Kevin Griffiths, for the Defendant Certas Direct Insurance Company
• Robert Van Praet, for the Defendant 2089402 Ontario Inc.

Ruling on Summary Judgment Motion

Overview

There are three summary judgment motions before me – one by the plaintiff, Eunice Lucas-Logan, seeking judgment as against both defendants, and one by each of the defendants, seeking to dismiss the plaintiff’s action and all crossclaims.

The plaintiff was involved in a motor vehicle accident on March 16, 2013 in Michigan, U.S.A. She sought accident benefits from her insurer, the defendant, Certas Direct Insurance Company (“Certas”). The defendant, 2089402 Ontario Inc., also known as Emeryville Collision (“Emeryville”), was involved in the repair of the plaintiff’s vehicle under the property damage provisions of her policy of insurance.

This action relates to the plaintiff’s denied accident benefits and repairs to her vehicle. The action is now 10 years old, having been brought in 2015.

It is clear from the record filed that the plaintiff has struggled to understand that to which she is entitled and to frame and advance her disputes. This is not surprising. Ontario’s Statutory Accident Benefits Schedule, O. Reg. 34/10 (the “SABS”), and dispute resolution system have long-since been known to be complex. As Quinn J. aptly stated in Mercier v. Royal & Sunalliance Insurance Co. of Canada, “Woe be to the injured person caught up in the world of accident benefits who does not have a lawyer in the family. Anyone able to fully understand the SABS should be entitled to claim bilingual status”.

The plaintiff’s claim is particularly complex because:

a. Her accident occurred in Michigan, U.S.A. and therefore involved issues regarding entitlement to accident benefits under the SABS or under the Michigan Insurance Code of 1956 (the “Michigan Code”);

b. Significant legislative amendments were made to the SABS dispute resolution system in 2016. The plaintiff’s disputes straddle these amendments such that some fell under the old system and could be litigated in a court proceeding while others fell under the new system and could only be litigated at the License Appeal Tribunal (“LAT”): Fighting Fraud and Reducing Automobile Insurance Rates Act, 2014, S.O. 2014, c. 9 (“Fighting Fraud Act”); and

c. Her claim involves issues including denied medical treatment and catastrophic determination, as well denied property damage.

The plaintiff is also self-represented and claims to have suffered a brain injury, post-traumatic stress syndrome, and other ailments resulting from the accident. She appears to have misunderstood her rights and obligations in this proceeding. For example, she refused to answer several questions on her examinations for discovery and cross-examination, making statements such as “under the Canadian Victims Bill of Rights, I choose to remain silent”, complicating the discovery process.

On the plaintiff’s cross-examination of May 6, 2024, she also stated: “I think you guys are started to screw around with me, so I’m not going to answer any more questions on this. I know you want to discredit me, you want to drag me through the mud so that your client wins, and I have to protect me”.

While the plaintiff’s refusal to answer relevant questions is not appropriate, it appears she felt threatened and perhaps overwhelmed by the complexities of this litigation, the able counsel representing the defendants, and her strong feelings that she was wronged.

This is in no way a criticism of the defendants or their counsel. It is clear from the record that they made significant efforts to help the plaintiff understand the applicable process and to appease her concerns.

I empathize with both parties’ experiences in this proceeding. It has undoubtedly been a long, drawn-out, difficult proceeding.

I find that this matter is appropriate for summary judgment. I am satisfied that I can reach a fair and just result based on the evidence filed. For the following reasons, I grant summary judgment, largely in favour of the defendants and order as follows:

a. The defendants shall pay the all-inclusive sum of $1,197.07 to the plaintiff on account of the remaining repairs to her vehicle;

b. The balance of the plaintiff’s claim is dismissed with summary judgment granted in favour of the defendants; and

c. Any damages payable by Certas shall be set-off as against the cost order of Donohue J. dated May 8, 2019 in the amount of $19,190.40.

The Plaintiff’s Claims

Per paras. 1 and 2 of the Amended Statement of Claim dated April 16, 2024 (the “Claim”), the plaintiff seeks the following:

1. The plaintiff, Eunice Lucas-Logan, claims against the Defendant Personal/Certas Direct Insurance Company (Certas) the sum of two million five hundred thousand dollars ($2,500,000.00) and any other penalties the court sees fit as damages for breach of good faith, bad faith, punitive, exemplary, deceit, pecuniary, compensatory, actual, special, conspiracy, expectation, fear of repetition, obligation, loss of faith, general, breach of privacy, breach of contract, concealment of material fact, misrepresentation, nominal, restitution, conspiracy, breach of honesty, breach of contract, negligence, aggravated, mental distress, anguish, general damages, personal protective benefits, false advertising, under the Insurance Code of 1956, Act 218 of 1956 of Michigan USA.

2. The plaintiff, Eunice Lucas-Logan, claims against the Defendant Emeryville Collision CSN (“Emeryville”) the sum of one hundred thousand dollars ($100,000.00) as damages for mental distress, loss of faith, punitive, general damages, pecuniary, deceit.

The plaintiff’s submissions and claims were somewhat difficult to follow, but from what I could determine, her claims consist of damages for the following:

a. Denied accident benefits, specifically:

• Treatment plans for repairs to tooth 15 in the total amount of $3,312.00;
• Catastrophic determination; and
• Access to accident benefits under the Michigan Code;

b. Denials with respect to her property damage claim;

c. Bad faith as a result of Certas’ handling of her accident benefit and property damage claims;

d. Fraud and conspiracy. She submits that the defendants colluded and conspired with one another to avoid having to repair her vehicle and force her into an unsafe, unrepaired vehicle; and

e. Damages for mental distress.

Certas and Emeryville deny all claims made against them.

This matter has been litigated at various levels of court, as well as at the Financial Services Commission of Ontario (“FSCO”) and LAT.

Small Claims Court Action & Subject Action

On or around March 7, 2014, the plaintiff brought a Small Claims Court action against Certas, seeking damages in the sum of $25,000. This claim involved the plaintiff’s property damage.

The plaintiff, through her then solicitor, sought to transfer the small claims action to the Superior Court of Justice. Certas did not oppose the transfer but, for reasons that are unclear to me, the claim was never transferred. Instead, a new Statement of Claim was issued as against Certas and Emeryville on or around February 3, 2015.

Certas was not served with the new claim until June 2015, resulting in them continuing to take steps to defend the Small Claims action in the interim.

Emeryville filed its Statement of Defence and Crossclaim on or around July 29, 2015.

Certas filed its Statement of Defence and Crossclaim on or around October 13, 2015.

Emeryville filed its Defence to Crossclaim on or around October 21, 2015.

FSCO Proceeding

On or around October 23, 2015, the plaintiff applied to FSCO to mediate claims for accident benefits. The Report of Mediator lists approximately 30 claims that were the subject of a failed mediation.

On or around March 30, 2016, the plaintiff, via her then counsel, moved the 30 issues that were the subject of failed mediation into arbitration by filing a FSCO Arbitration Application.

On or around September 9, 2016, the plaintiff terminated her counsel and withdrew her application for arbitration for the stated reason that she did not want to proceed with this matter. FSCO complied with her request and closed its file.

The plaintiff maintains that she always wanted to litigate these claims in Superior Court and never instructed her counsel to file for arbitration.

Plaintiff’s Motion to Amend Statement of Claim in Subject Action

Thereafter, the plaintiff brought a motion to amend her Statement of Claim to include the matters of the failed mediation, several disputed payments that were never the subject of any arbitration, and damages for bad faith, breach of contract and punitive damages.

By his Decision on Motion dated February 2, 2017, Thomas J. dismissed the plaintiff’s motion to amend her Statement of Claim. Legislative changes were made in 2016, which required her disputes to be arbitrated at the LAT. She was permitted to continue with her original claims as against Certas, but any additional claims would need to be brought before the LAT. With respect to the proposed amendments regarding Emeryville, Thomas J. determined that a more focused motion and proposed pleading was required.

LAT Proceeding

On or around January 4, 2018, the plaintiff commenced an application at the LAT seeking entitlement to approximately 76 benefits. This application resulted in two LAT decisions:

a. A preliminary issues hearing was held before Adjudicator Lake. The issues raised on the hearing included the following:

1. Is [the plaintiff] entitled to the amount of benefits under the [Michigan Code] or under the [SABS]? Is [the plaintiff] entitled to re-elect benefits?
2. Do the procedures in the Michigan Code or the [SABS] apply to adjusting [the plaintiff’s] benefit claim?
3. Can [the plaintiff] be found to be catastrophically impaired without submitting an application for catastrophic determination to Certas and, if so, has she been “deemed” catastrophically impaired by Certas.

In her Preliminary Issue Decision dated June 19, 2019, Adjudicator Lake determined that the plaintiff was never eligible to elect benefits under the Michigan Code and, as such, the benefits that apply in this matter are those set out in the SABS and not those under the Michigan Code.

Adjudicator Lake also determined that the plaintiff cannot be “deemed” catastrophically impaired. She must first file an OCF-19 Application for Catastrophic Determination per s. 45 of the SABS. Catastrophic benefits were therefore denied.

b. The balance of the plaintiff’s LAT application was then adjudicated at a full hearing before Adjudicator Kepman, whose decision is dated March 10, 2022.

Second Superior Court of Justice Action & Appeal of Donohue J. Order

In or around 2018, the plaintiff commenced a further Superior Court action against Certas (Court File No. CV-18-26091).

Certas successfully moved for summary judgment. Per his Order of May 8, 2019, Donohue J. dismissed the plaintiff’s action and ordered her to pay costs in the amount of $19,190.41. These costs remain unpaid.

The plaintiff took steps to appeal Donohue J.’s Order, but the appeal was not properly constituted. The Office of the Registrar of the Court of Appeal and Grace J. of the Superior Court of Justice both provided instructions to the plaintiff to remedy the appeal. No evidence has been provided that the appeal was remedied.

Appeal of License Appeal Tribunal Decision of Adjudicator Lake

By Notice of Appeal dated July 8, 2019, the plaintiff appealed Adjudicator Lake’s Preliminary Issues Decision dated June 19, 2019 to the Divisional Court.

At the hearing of the appeal, the plaintiff submitted that “This is not trying to overturn from that decision. This appeal is to get my accident benefits put back on my statement of claim.”

The plaintiff appears to have been under the mistaken impression that proceedings at the LAT are the same as the prior FSCO mediation and that, by adjudicating her entitlement at the LAT, she could then proceed with those same disputes in a court proceeding.

The Divisional Court dismissed the plaintiff’s appeal, stating that:

[20] As noted, at the commencement of the hearing of this appeal, Ms. Lucas-Logan announced that that she was not seeking to appeal the decision of the Licence Appeal Tribunal but seeking to have her already existing but unresolved claims for accident benefits added to her existing action.

[21] In her factum, Ms. Lucas-Logan submitted that this appeal is "from a decision made in Superior Court of Justice and the Licence Appeal Tribunal" and asks that she be allowed to “particularize the statement of claim issued February 3, 2015."

[22] Certas argues that the Notice of Appeal filed by Ms. Lucas-Logan on July 8, 2019 appeals the June 2019 decision of the Licence Appeal Tribunal only and that, in any event, the decision of Thomas J. had to be appealed within 30 days.

[23] We agree. That decision has not been appealed and the time for bringing that appeal has expired.

[24] As Ms. Lucas-Logan announced that she is not seeking to appeal the decision of the Licence Appeal Tribunal this appeal is dismissed.

[25] We note that the procedures for resolving disputes for claims for accident benefits changed significantly after Ms. Lucas-Logan presented her first claims. It is unfortunate that Ms. Lucas-Logan has misapprehended the procedural changes to the resolution of accident benefit disputes effective April 1, 2016.

Trial & Summary Judgment Motions in Subject Action

This matter’s trial was set to commence on February 26, 2024. The trial was adjourned to allow for the plaintiff’s summary judgment motion and Certas’ motion to amend its Statement of Defence.

By Endorsement dated April 2, 2024, Campbell J. permitted the amendments Certas sought to its Statement of Defence, including allowing Certas to plead the defence of set-off regarding the outstanding May 8, 2020 cost Order. Campbell J. also permitted the plaintiff to serve an amended reply and defence to set off.

On or around April 4, 2024, Certas filed its Amended Statement of Defence and Crossclaim.

For reasons that are unclear to me, the plaintiff then amended her Statement of Claim to include a claim for false advertising, as well as “any other claim the court sees fit”. I cannot find an endorsement granting the plaintiff leave to make this amendment. Per Campbell J.’s April 2, 2024 endorsement, she was only permitted to serve an amended reply and defence to set off.

The plaintiff’s summary judgment motion, along with the summary judgment motions of each of the defendants, was heard on August 19 and September 5, 2024.

The Law

Rule 20.04(2) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, provides that the court shall grant summary judgment if the court is satisfied that there is no genuine issue requiring a trial with respect to a claim or a defence. The burden is on the moving party to satisfy the court that there is no genuine issue requiring a trial. After the moving party satisfies that burden, the burden shifts to the responding party(s) to prove that their claim or defence has a real chance of success and that there is a genuine issue requiring a trial.

In determining whether there is a genuine issue requiring a trial, r. 20.04(2.1) permits the motion judge to exercise any of the following powers, unless it is in the interest of justice for such powers to be exercised only at a trial:

a. Weighing the evidence.
b. Evaluating the credibility of a deponent.
c. Drawing any reasonable inference from the evidence.

These powers were extensively reviewed by the Supreme Court of Canada in Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87. Writing for the Court, Karakatsanis J. laid out a two-part roadmap for summary judgment motions, at para. 66:

On a motion for summary judgment under Rule 20.04, the judge should first determine if there is a genuine issue requiring trial based only on the evidence before her, without using the new fact-finding powers. There will be no genuine issue requiring a trial if the summary judgment process provides her with the evidence required to fairly and justly adjudicate the dispute and is a timely, affordable and proportionate procedure, under Rule 20.04(2)(a). If there appears to be a genuine issue requiring a trial, she should then determine if the need for a trial can be avoided by using the new powers under Rules 20.04(2.1) and (2.2). She may, at her discretion, use those powers, provided that their use is not against the interest of justice. Their use will not be against the interest of justice if they will lead to a fair and just result and will serve the goals of timeliness, affordability and proportionality in light of the litigation as a whole. [Emphasis in original.]

Even with these extended powers, a motion for summary judgment is appropriate only if the material provided on the motion “gives the judge confidence that she can find the necessary facts and apply the relevant legal principles so as to resolve the dispute”: Hryniak, at para. 50.

In Hryniak, at para. 49, the Supreme Court held that there will be no genuine issue for trial when the summary judgment process “(1) allows the judge to make the necessary findings of fact, (2) allows the judge to apply the law to the facts, and (3) is a proportionate, more expeditious and less expensive means to achieve a just result.”

To defeat a motion for summary judgment, the responding party must put forward some evidence to show that there is a genuine issue requiring a trial. The responding party may not rest on mere allegations or denials of the party’s pleadings but must set out – in affidavit material or other evidence – specific facts establishing a genuine issue requiring a trial.

The motion judge is entitled to assume that the record contains all the evidence that would be introduced by both parties at trial. A summary judgment motion cannot be defeated by vague references as to what may be adduced if the matter is allowed to proceed to trial.

Both parties on a summary judgment motion are required to put their best foot forward: see Mazza v. Ornge Corporate Services Inc., 2016 ONCA 753, at para. 9, leave to appeal refused. Given the onus placed on the moving party to provide supporting affidavit or other evidence under r. 20.01, “it is not just the responding party who has an obligation to ‘lead trump or risk losing’”: Ipex Inc. v. Lubrizol Advanced Materials Canada, 2015 ONSC 6580, at para. 28.

Thus, if the moving party meets the evidentiary burden of producing evidence on which the court could conclude that there is no genuine issue of material fact requiring a trial, the responding party must either refute or counter the moving party’s evidence or risk a summary judgment.

While r. 20.04 provides the court hearing a summary judgment motion with “enhanced forensic tools” to deal with conflicting evidence on factual matters, the court should employ these tools and decide a motion for summary judgment only if it leads to “a fair process and just adjudication”: Mason v. Perras Mongenais, 2018 ONCA 978, at para. 44; Eastwood Square Kitchener Inc. v. Value Village Stores, Inc., 2017 ONSC 832, at paras. 3-6.

[The remainder of the judgment continues with detailed analysis, findings, and orders as set out in the original text, including the application of issue estoppel, the analysis of the plaintiff’s claims for dental treatment, property damage, mental distress, and the set-off of damages.]

Disposition

For these reasons, I order as follows:

a. The defendants shall pay the all-inclusive sum of $1,197.07 to the plaintiff on account of the remaining repairs required to her vehicle;

b. The balance of the plaintiff’s claim is dismissed with summary judgment being granted in favour of the defendants; and

c. Any damages payable by Certas shall be set-off as against the cost order of Donohue J. dated May 8, 2019 in the amount of $19,190.40.

I encourage the parties to agree upon the issue of costs. This has been a long, drawn-out action, but it was also quite complex for the self-represented plaintiff to understand and traverse.

If the parties are unable to reach an agreement on costs, they may each make written cost submissions (not to exceed five pages, double spaced), along with their Costs Outline and any offers to settle, as follows:

a. The defendants shall each provide their submissions by June 13, 2025;

b. The plaintiff shall provide her responding submissions by July 18, 2025; and

c. The defendants shall provide their reply submissions (not to exceed three pages in length each), if any, by August 1, 2025.

Jennifer E. Bezaire
Justice

Released: May 8, 2025