MacDonald v MacVicar, 2018 NSSC 272 provides judicial guidance on s. 113BA(1) of the Insurance Act, RSNS 1989, c 231 (“Act”), holding that future loss of income damages for plaintiffs injured in motor vehicle accidents should be calculated on a gross, rather than net basis. Background In MacDonald v MacVicar, 2018 NSSC 271, the court […]read more
Rule 22 Motions: No Discovery? No Problem!
In Linda Trevors v. Anne Doucet, Lea Allard, Enterprise Rent-A-Car Canada Company, and Co-operators General Insurance,1 (hereinafter “Trevors v. Doucet”) the moving party applied for summary judgment early in the proceeding. Discovery had not yet occurred. The applicants were successful on the motion despite allegations it was premature.
On May 16, 2015, a head on collision occurred between two rental vehicles both owned by Enterprise Rent-A-Car Canada Company (“ERAC”) on Route 11, near Miramichi, New Brunswick. The defendant, Ann Doucet (“Doucet”), was operating a Nissan Altima and travelling south. The plaintiff, Linda Trevors (“Trevors”), was a passenger in the Nissan Altima. The other defendant, Lea Allard (“Allard”) was operating a Dodge Journey and travelling north. The Dodge Journey crossed the center line of Route 11 and collided with the Nissan Altima in the southbound lane, Doucet’s lane of travel (the “Accident”). The Plaintiff Trevors sued both the driver of the Nissan Altima, Doucet, and the driver of the Dodge Journey, Allard, as well as Trevor’s own excess insurer.
Doucet and ERAC, in its capacity as Doucet’s insurer (collectively “ERAC-Doucet”), brought a motion for summary judgment. ERAC-Doucet refused to attend discovery while the motion was pending.
Trevors opposed the motion on the basis it was premature as discovery had not occurred.2 The court confirmed there was no requirement to have an examination of discovery before filing a Rule 22 motion. Justice Robichaud concluded:
“Rule 22 clearly does not require examination for discovery to be held prior to filing or hearing the motion. A motion can be filed as soon as the pleadings are closed. It is not improper to try to avoid costs associated with an examination for discovery if there is no genuine issue requiring a trial.3”
Justice Robichaud reiterated that it was “not improper” for a party to avoid the costs of discovery by filing a summary judgment motion if there was no genuine issue requiring a trial.
The court cautioned litigants against causing a “disadvantage” to a party by withholding important documents or information and by filing a summary judgment motion. Justice Robichaud outlined under such circumstances the court would allow cross-examination of a witness, and would grant an adjournment to allow for discovery of documents, for the preparation of expert evidence, or for discovery.4 Summary judgment is an early resolution tool but it cannot be used to thwart the discovery procedure.
Trevors alleged that ERAC-Doucet filed the motion prematurely to prevent Doucet from making damaging admissions at discovery.5 Justice Robichaud ruled this allegation was unfounded. He noted that Affidavit of Documents had been exchanged six months prior to the motion hearing. Statements by Allard, Trevors, Doucet and an independent witness had all been previously disclosed. Furthermore, Trevors had failed to present any evidence that would alter the facts as sworn by the people involved in the Accident. Justice Robichaud reiterated that claiming there are “factual issues that remain unresolved” was an insufficient response to a summary judgment motion.6 Trevors failed to provide any evidence to suggest the court was missing facts or that the factual situation was different than what was presently before the court.7 Justice Robichaud ruled that any dispute of facts could be decided with the “evidence at hand”. The summary judgment motion was not premature.8
ERAC-Doucet sought leave to file an Affidavit enclosing an expert report and the expert’s curriculum vitae under Rule 22.02(3). The court accepted the Affidavit but struck out portions of the report for containing hearsay and providing opinion beyond the expertise of the expert.9
This expert report was crucial to Justice Robichaud’s decision to grant summary judgment. Trevors and Doucet did not have a clear memory of the pre-collision events. Doucet had actually misremembered her actions according to the expert report.10 Justice Robichaud relied on the expert report to conclude that Allard was completely liable for the Accident, not ERAC-Doucet.11
Conversely Trevors did not file an expert report. She alleged that had Doucet not been speeding she could have avoided the Accident. Justice Robichaud dismissed this argument because Trevors had no expert evidence to support her allegations.
Justice Robichaud concluded that there was no genuine issue requiring a trial and granted summary judgment in favour of ERAC-Doucet.12
Lessons for the Insurer
Insurers do not need to wait for discovery to be completed before filing a summary judgment motion. Justice Robichaud has unequivocally stated in Trevors v. Doucet that filing a summary judgment motion to avoid discovery costs is a proper use of Rule 22. However, to be successful on a summary judgment motion early in the proceedings, the matter must be thoroughly investigated. Complete document disclosure is required. The moving party should be able to advise the court that there is little to be gained at discovery given the documents already disclosed and the applicable facts and law.
Further, when filing a summary judgement motion, the court must be able to resolve any potential dispute of facts that may arise on the motion. This will likely require the moving party to file an expert report. The expert report must be carefully drafted. The court has the discretion to consider opinion evidence under Rule 22.03, but will not hesitate to strike out portions of an expert report. The expert must base his or her opinions on objective information, refrain from relying on hearsay and only offer opinions clearly within his or her expertise.
1 The summary judgment ruling in Linda Trevors v. Anne Doucet, Lea Allard, Enterprise Rent-A-Car Canada Company, a body corporate, and Co-operators General Insurance, identified as Court File No B/C-76-2017; is not yet published. A full link to the text can be found at: https://coxandpalmerlaw.com/wp-content/uploads/2019/03/Summary-Judgment-Ruling-in-Linda-Trevors-v.-Anne-Doucet-Lea-Allard-Enterprise-Rent-A-Car-Canada-Company-a-body-corporate-and-Co-operators-General-Insurance-Court-File-No-BC-76-2017-2.pdf
2 Trevors v. Doucet, para. 35, 36
3 Trevors v. Doucet, para. 33
4 Trevors v. Doucet, para. 37
5 Trevors v. Doucet, para. 33, 34
6 Trevors v. Doucet, para. 35
7 Trevors v. Doucet, para. 36
8 Trevors v. Doucet, para. 35, 36, 37
9 Trevors v. Doucet, para. 15
10 Trevors v. Doucet, paras. 19 – 22
11 Trevors v. Doucet, para. 23
12 Trevors v. Doucet, para. 47