Forestall v. Carrol, 2015 ONSC 5883 (CanLII)
Released September 23, 2015 | Full Decision
Rarely will leave to appeal be granted from the decision to dismiss a summary judgment motion. Normally, the moving party lives to fight the issue on the merits another day. This was the rare case. The issue was discrete but central in the proceedings. It would speed the resolution of a long standing case.
In 2005, a collision occurred involving Elizabeth Carrol and Dylan Forrestall. Celina Carrol was Elizabeth’s mother and the owner of the car. Celina, who died in 2011, plead that she did not give her daughter permission to drive the vehicle. Elizabeth had no insurance of her own. TD was added as a defendant to respond to a claim under Forestall’s uninsured motorist coverage. Only TD opposed the summary judgment motion.
The evidence on the motion was compelling:
- The policy did not list Elizabeth as a driver. Celina was waiting for her to complete driver’s education before adding her to the insurance policy;
- Celina told the insurer at the time the accident was reported that Elizabeth was not allowed to drive her car;
- Celina laid a complaint of theft against Elizabeth shortly after the accident;
- Celina testified at discovery that Elizabeth did not have permission to drive; and
- Elizabeth testified twice at discovery that she did not have her mother’s permission to operate the car. This admission contradicted the pleadings.
The Motion Judge made four errors:
- The failure to rule on the admissibility of the discovery evidence of Celina Carroll, and failure to take into account or give any weight to that evidence.
- The discovery evidence of Elizabeth Carroll was not admitted because of its inconsistency with her pleadings. Pleadings are not evidence.
- The “mini-trial” was conflated with the broad range of alternatives to the traditional trial mandated in Hryniak v. Mauldin.
- The motions judge failed to seize himself of the issues and gave no reasons, aside from those expressed in respect to point three, above.
In conclusion, this was an ideal case for the application of Hyrniak. On motion, a judge could determine whether Elizabeth had her mother’s permission to drive the car. There was no reason why the case, as presented to the motions judge in writing and aided with evidence from Elizabeth, would be any different from the presentation to the trial judge.