Ontario Superior Court reviews law for summarily dismissing a claim

An Ontario Superior Court of Justice case, Oliveira v. Mullings, recently considered the standard for summarily dismissing a claim made against an auto insurer.

The claim was based on a September 2003 motor vehicle collision, in which one of the defendants, Phillip Mullings, was the driver of a vehicle owned by his mother, defendant Claudia James.

As a result of the crash, Victor and Stephanie Victoria Oliveira, plaintiffs, sued Mullings and James, as well as their insurers, Dominion of Canada General Insurance Company and ING Insurance Company of Canada.

James and her insurer sought a summary judgment striking out the claim, arguing there was no genuine issue for trial.

James said she was not liable because Mullings had driven the car without her permission. This had been established when Mullings told the adjuster for the plaintiffs’ insurer he did not have permission to drive his mother’s car.

The plaintiffs, on the other hand, argued that Mullings had the implied consent of his mother to drive the car. They noted inconsistencies in Mullings’ testimony, which, they suggested, spoke to the credibility of the testimony on the issue of consent. They submitted the issue of whether or not consent existed was a live debate and therefore a genuine issue for trial.

The judge disagreed and summarily dismissed the case. In doing so, Ontario Superior Court Justice Thomas Lederer examined the case law establish the standard for determining whether there is a genuine issue for trial.

“A genuine issue for trial,” Lederman wrote, “should do more than point out inconsistencies and be more than the result of speculation arising from the coincidences of everyday life, particularly when they are otherwise explained.”

On the issue of implied consent, the judge wrote: “The evidence showed the son had implied consent which was limited in scope to circumstances where he had not been consuming alcohol. Since it was found to be a fact that their son had been drinking, the scope of the implied consent was exceeded. He did not have consent.”