Court File and Parties

Court File No.: CV-20-00637165-0000 Date: 2025-08-05 Ontario Superior Court of Justice

Between:

Manogaran Kumarasamy, Plaintiff

– and –

John Doe, Gerard Akosa-Sarpong, Kapil Manogaran, Anoshini Manogaran, Elite Line Car Rentals Inc., and Certas Direct Insurance Company, Defendants

Counsel

Sandy Alexander Williams, for the Plaintiff

Kenneth R. Wace, for the Defendant Certas Direct Insurance Company

Louise A. James, for the Moving Party, Plaintiff by Assignment, Certas Direct Insurance Company

Gerard Akosa-Sarpong, Self-represented Defendant

Heard: In writing

Endorsement

John Callaghan J.

[1] This is a motion for default judgment by Certas Direct Insurance Company ("Certas") against the defendant, Gerard Akosa-Sarpong ("Akosa-Sarpong"), who was not insured, did not defend, and was noted in default. As such, the plaintiff claimed against Certas pursuant to the uninsured and underinsured motorist provisions of his policy.

[2] Certas eventually settled with the plaintiff and took an assignment of the plaintiff's action against Mr. Akosa-Sarpong. The settlement was for $105,000. Certas now seeks default judgment to recover the settlement amount.

[3] In circumstances such as these, an insurer may recover against a third party who is responsible for the accident. The settlement may be used as a proxy for the actual damages, provided there is evidence that the settlement was reasonable having regard to the accident and the injuries sustained. In Bell v. Chatrie, 2019 ONSC 251, at paras. 10-11, the court described the requirement as follows:

[10] However, where a third party, such as an insurer, has settled the plaintiff's claim against a defendant and pursues the defendant pursuant to an assignment of the plaintiff's action, strict proof of damages may be impractical and expensive. In such cases, the amount of the settlement may be adopted as the measure of damages if the third party establishes that the settlement was reasonable: MacKean v. Royal & Sun Alliance Insurance Co. of Canada, 2015 NSCA 33, para. 35; Caithesan v. Amjad Canada, 2016 ONSC 5720, para. 41.

[11] Whether the amount of settlement was reasonable turns on whether the plaintiff would have recovered damages in the range of the settled amount had the matter proceeded to trial: MacKean, paras. 13, 28, 52.

[4] In order to use the settlement as a proxy, the party seeking judgment must adduce sufficient evidence such that the court may conclude that the settled amount reflects the likely recovery, or it will not be reasonable: MacKean v. Royal & Sun Alliance Insurance Co. of Canada, at para. 29.

[5] In this case, the only evidence is what is in the pleadings and the fact of a settlement with the plaintiff at a pretrial. There is no evidence submitted as to the extent of the injuries, any wage loss, or other recoverable expenses of the plaintiff. Aside from this being a rear end collision there is no evidence by which this Court may assess the reasonableness of the settlement. While the fact that the matter was settled at a pretrial assist with the fact that the settlement was arrived at in an adversarial process, there should be some evidence of the nature of the injuries and damages sustained by the plaintiff by which this Court can assess the reasonableness of the settlement.

[6] I am not granting judgment at this time. Certas is free to file any further evidence within 21 days. Any evidence shall be sent to my assistant from whom Certas receives this endorsement and uploaded to Case Center. If no further evidence is filed, the motion shall be dismissed.

Callaghan J.

Released: August 5, 2025