2012 ABQB 434, 2012 ABQB 434

Court of Queen ’ s Bench of Alberta Citation: Alberta (Administrator, Motor Vehicle Accident Claims Act) v.

Riendeau , 2012 ABQB 434 Date: 20120705 Docket: 0603 13184, 0703 07236 Registry: Edmonton COURT FILE NUMBER 0603 13184 COURT Court of Queen ’ s Bench of Alberta JUDICIAL CENTRE Edmonton PLAINTIFFS The Administrator of the Motor Vehicle Accident Claims Act and Arlene Helen Zawaski DEFENDANT Maurice Riendeau COURT FILE NUMBER 0703 07236 COURT Court of Queen ’ s Bench of Alberta JUDICIAL CENTRE Edmonton PLAINTIFFS The Administrator of the Motor Vehicle Accident Claims Act and Shawn Bruce McNamara DEFENDANT Maurice Riendeau _______________________________________________________ Reasons for Judgment of the Honourable Mr.

Justice D.R.G. Thomas _______________________________________________________

I.

Summary..................................................................................................................... Page: 2 II. The Facts..................................................................................................................... Page: 3 III. Issues.......................................................................................................................... Page: 5 A.

Can the Zawaski Judgment entered in 1996 and the McNamara \ Judgment entered in 1997 be set aside in Actions to renew those judgments?............................................................................................ Page: 6 B. Are the defences raised by Riendeau barred by res judicata? .......................... Page: 7 C. Should

summary judgment be granted in both the Zawaski and McNamara Judgment Renewal Actions?......................................................... Page: 8 IV. Conclusion................................................................................................................ Page: 11 I.

Summary [ 1 ] The applications before me originally arise from a motor vehicle accident which took place on September 3, 1992. Arlene Helen Zawaski (“Zawaski”) was driving in Edmonton when her vehicle collided with a vehicle owned by Maurice Riendeau (“Riendeau”). Shawn Bruce McNamara (“McNamara”) was a passenger in Zawaski’s vehicle. Both Zawaski and McNamara were injured in the accident. [ 2 ] Zawaski and McNamara commenced Action Number 9203 24882 for damages against Riendeau (the “Personal Injury Action”). [ 3 ] Riendeau did not defend and was noted in default in the Personal Injury Action.

The Administrator of the Motor Vehicles Accident Claims Act (the “Administrator”), who stepped in to defend the claims against Riendeau after he was noted in default, consented to judgments being entered against Riendeau on November 13, 1996, in respect to damages suffered by Zawaski (the “Zawaski Judgment”), and on June 25, 1997, in respect to the damages suffered by McNamara (the “McNamara Judgment”). [ 4 ] The Administrator satisfied the Zawaski and McNamara Judgments.

Zawaski and McNamara then assigned their respective judgments in the Personal Injury Action to the Administrator. [ 5 ] On October 20, 2006, the Administrator commenced Action Number 0603 13184 to renew the Zawaski Judgment against Riendeau (the “Zawaski Judgment Renewal Action”). On June 5, 2007, the Administrator commenced Action Number 0703 07236 to

renew the McNamara Judgment against Riendeau (the “McNamara Judgment Renewal Action”). Riendeau filed counterclaims in both of those Actions. [ 6 ] The Administrator now applies for

summary judgment pursuant to Rule 7.3 of the Alberta Rules of Court on the grounds that Riendeau has no defence to the Judgment Renewal Actions, nor any basis for making the counterclaims. [ 7 ] The Administrator’s applications for

summary judgment in the Zawaski and McNamara Judgment Renewal Actions and for

summary dismissal of Riendeau’s counterclaims are granted. II. The Facts [ 8 ] Ingrid Reid, an employee of the Administrator, swore two affidavits in support of the Administrator’s

summary judgment applications: one in the McNamara Judgment Renewal Action, sworn on January 14, 2009 (“Reid Affidavit #1), and the other in the Zawaski Judgment Renewal Action, also sworn on January 14, 2009 (“Reid Affidavit #2”). Ms. Reid was cross-examined on both Affidavits. [ 9 ] The following

summary of the relevant steps taken in both the Zawaski Action and the McNamara Action is based on a review of both of the Reid Affidavits #1 and #2: September 3, 1992 Motor vehicle accident. December 7, 1992 Statement of Claim filed (Personal Injury Action). December 19, 1992 Statements of Claim personally served on Riendeau (Personal Injury Action). November 17, 1993 Affidavit of Service on Riendeau filed (Personal Injury Action). Praecipes to Note in Default filed (Personal Injury Action).

February 4, 1994 Letter sent by the Administrator to Riendeau advising that he has been noted in default and that he is deemed to have admitted liability unless he obtains a court order permitting him to file a Statement of Defence. The letter also advised Riendeau that a judgment by consent may be obtained against him. The letter was returned and date-stamped at Alberta Justice on February 16, 1994 (Personal Injury Action). April 11, 1994 Statement of Defence filed by the Administrator on Riendeau’s behalf (Personal Injury Action).

November 12, 1996 Consent Judgment filed: the Administrator consented to judgment against Riendeau for $31,000.00 plus $4,159.84 in costs, for a total of $35,159.84 (Zawaski Judgment). November 18, 1996 Zawaski Judgment assigned to the Administrator. January 9, 1997 Order granted dispensing with service of the Assignments of Judgment on Riendeau (Zawaski Judgment and McNamara Judgment). June 25, 1997 Consent Judgment filed: the Administrator consented to judgment against Riendeau for $41,653.50 plus $3,245.38 in costs, for a total of $44,888.78 (McNamara Judgment).

July 4, 1997 McNamara Judgment assigned to the Administrator. October 20, 2006 The Administrator filed the Zawaski Judgment Renewal Action to renew the Zawaski Judgment for the outstanding amount of $34,659.84 ($35,159.84 - $500.00 paid on March 21, 2006 by Riendeau to get his Alberta driver’s licence back.) April 30, 2007 Riendeau filed a Statement of Defence and Counterclaim in the Zawaski Judgment Renewal Action. The Counterclaim seeks to recover Riendeau’s $500.00 payment on the Zawaski Judgment.

May 10, 2007 The Administrator filed a Statement of Defence to the Counterclaim in the Zawaski Judgment Renewal Action. June 5, 2007 The Administrator filed the McNamara Judgment Renewal Action to renew the McNamara Judgment for the outstanding amount of $44,888.78. October 1, 2007 Riendeau filed a Statement of Defence and Counterclaim in the McNamara Judgment Renewal Action. November 2, 2007 The Administrator filed a Statement of Defence to the Counterclaim in the McNamara Judgment Renewal Action. [ 10 ] The only amount paid to date by Riendeau was $500.00 on March 21, 2006, in relation to the Zawaski Judgment.

In his Affidavit sworn on March 23, 2012 (the “Riendeau Affidavit”), Riendeau states that he was required to make the $500.00 payment in order to have his driver’s license restored when he moved back to Alberta. [ 11 ] The Administrator filed applications for

summary judgment in both Judgment Renewal Actions pursuant to Rule 159(1) of the former Alberta Rules of Court on September 1, 2009, which were adjourned sine die. The Administrator filed new

summary judgment applications under Rule 7.3 of the new Alberta Rules of Court on January 13, 2012.

III. Issues [ 12 ] There are four questions to be answered on these applications: 1. Whether the Administrator has taken proper steps to renew the Zawaski and McNamara Judgments? 2. Whether the Zawaski Judgment entered in 1996 and the McNamara Judgment entered in 1997 can be set aside in Actions to renew these judgments? 3. Whether the defences raised by Riendeau are res judicata ? 4. Whether the Administrator ought to be granted

summary judgment in both the Zawaski and McNamara Judgment Renewal Actions? [ 13 ] I will dispense quickly with the first issue raised by the Administrator. Counsel for Riendeau conceded that the procedure of issuing new Statements of Claim is a valid method of renewing the Zawaski and McNamara Judgments. I have reviewed the Administrator’s authorities and conclude that the Administrator has taken the proper steps to renew the Zawaski and McNamara Judgments by filing the Zawaski Judgment Renewal Action and the McNamara Judgment Renewal Action. [ 14 ] I turn now to address the other questions: A.

Can the Zawaski Judgment entered in 1996 and the McNamara Judgment entered in 1997 be set aside in Actions to renew those judgments? [ 15 ] The Administrator argues that choosing to renew the Zawaski and McNamara Judgments by issuing new Statements of Claim does not have the effect of opening up the original judgments to allow Riendeau to argue the Personal Injury Action on its merits. I agree. The issues of liability and quantum of damages in the Personal Injury Action have been determined: consent judgments resolving the matters were entered in 1996 and 1997.

After the consent judgments were entered, no other issues in the Personal Injury Action remained open for determination by any Court. The Personal Injury Action came to an end: all that remained was for the Administrator to take steps to enforce the Zawaski and McNamara Judgments, which had been assigned by Zawaski and McNamara to the Administrator. [ 16 ] By commencing the Zawaski and McNamara Judgment Renewal Actions, the Administrator is simply seeking to collect the outstanding amounts of the Zawaski and McNamara Judgments from Riendeau.

Riendeau failed to respond to the Statement of Claim filed against him in the Personal Injury Action and was noted in default. When a defendant is noted in default, he is deemed to have admitted the allegations in the Statement of Claim: TLA Food Services Ltd v 1144707 Alberta Ltd, 2011 ABQB 550 at para 24 , 56 Alta LR (5 th ) 363. Riendeau cannot now seek to revisit the issues settled in the Personal Injury Action by filing defences and counterclaims in the Zawaski and McNamara Judgment Renewal Actions. B. Are the defences raised by Riendeau barred by res judicata?

[17] The Administrator argues that the doctrine of res judicata also applies to bar Riendeau from raising the allegations containedin his Statements of Defence and Counterclaims to the Zawaski and McNamara Judgment Renewal Actions. [18] The doctrine of res judicata will operate to raise an estoppel if the following conditions are met:

(1) The prior judicial decision was a final decision pronounced by a court of competent jurisdiction over the parties and the subjectmatter;

(2) The decision involved a determination of the same issue or cause of action that is sought to be controverted or advanced in thepresent litigation; and

(3) The parties to the prior judicial proceeding or their privies are the same persons as the parties to the present action or theirprivies. [19] See 420093 BC Ltd v Bank of Montreal (1995), (AB CA), 34 Alta LR (3d) 269 (Alta CA) at para 18, ascited in Hnatiuk v Assured Developments Ltd, 2010 ABQB 258 at para 6 (“Hnatiuk”). [20] As noted by Hembroff J at para 11 of Hnatiuk (citing Green v Weatherill, [1929] 2 Ch 213 (Eng Ch Div) at 221-22): The plea of res judicata applies, except in special cases, not only to points upon which the Court was actually required by the parties toform an opinion and pronounce a judgment, but to every point which properly belonged to the subject of litigation and which the parties,exercising reasonable diligence, might have brought forward at the time. [21] A consent judgment is considered a final decision for the purposes of res judicata: see Escobar v.

Yacey, 1998 ABQB 599, [1998] 66 Alta LR (3d) 344 at para 25, 229 AR 278 (QB). [22] I am satisfied that the circumstances of this particular case warrant the application of the doctrine of res judicata. [23] Further, there is evidence that the amount of $500.00 was paid by Riendeau on the Zawaski Judgment on March 21, 2006.That is evidence that he recognized and accepted the validity of the Zawaski and McNamara Judgments. He is now estopped fromchallenging their validity on the basis of this one payment, notwithstanding his claim that he had to make the payment to renew hisAlberta driver’s license. C. Should

summary judgment be granted in both the Zawaski and McNamara Judgment Renewal Actions? [24] The Administrator’s applications for

summary judgment are brought under Rule 7.3: 7.3(1) A party may apply to the Court for

summary judgment in respect of all or part of a claim on one or more of the following grounds: (

a) there is no defence to a claim or part of it; (

b) there is no merit to a claim or part of it;

(

c) the only real issue is the amount to be awarded. [ 25 ] The application must be supported by an affidavit swearing positively that one or more of the above grounds have been met, or by other evidence to the effect that the grounds have been met: Rule 7.3(2). [ 26 ] The law applicable to this Application is well-established. The relevant principles are set out in paragraph 17 of Murphy Oil Company Ltd v Predator Corporation Ltd, 2004 ABQB 688 , aff’d 2006 ABCA 69 : 1. A party bringing a motion for

summary judgment bears the legal onus of showing that there is no genuine issue for trial. 2. There is no onus on the responding party to prove a genuine issue for trial. 3. If the applicant for

summary judgment discharges his/her onus on the material filed, a respondent who does not resist the application through admissible evidence risks judgment against him/her. That is an evidentiary burden. 4. There is no obligation on the respondent to file material. He/she can accept the risk described above. If the applicant fails to discharge his/her legal onus, the application will fail. 5. More commonly a respondent will provide admissible evidence opposing the motion. In that event, the court will consider all the evidence to determine whether the applicant has shown that there is no genuine issue for trial. [ 27 ] When considering an application for

summary judgment, the Court has an obligation to conduct a careful review to determine whether there are undisputed facts sufficient to resolve the matter: Encana Corporation v ARC Resources Ltd , 2011 ABQB 431 at para 9 , referring to De Shazo v Nations Energy Co , 2005 ABCA 241 at para 18 , 367 AR 267.

Where there is no factual dispute, there is no purpose to a trial as the parties can advance their legal arguments as effectively in a special chambers application as they could at the conclusion of a trial: Manufacturers Life Insurance Co v Executive Centre at Manulife Place Inc , 2011 ABQB 189 (“ Manulife ”) at para 11. [ 28 ] Rule 7.3 operates in the same manner and follows the same legal principles as its predecessor Rule 159: Kwan v Superfly Inc , 2011 ABQB 343 at para 20 , Manulife at para 11; BA Capital Inc v Stream Oil & Gas Ltd, 2011 ABQB 91 (Master) at paras 3-4 . [ 29 ] There are two sets of applications before the Court: in the first, the Administrator seeks

summary judgment in the Zawaski and McNamara Judgment Renewal Actions, and in the second, the Administrator seeks

summary dismissal of Riendeau’s counterclaims in both Actions. [ 30 ] I deal first with the applications for

summary judgment in the Zawaski and McNamara Judgment Renewal Actions. As noted earlier, these Actions were filed solely to renew the Zawaski and McNamara Judgments in order to allow the Administrator to recover the outstanding amounts from Riendeau. Given the limited nature of these types of Actions, there are only three issues that require determination:

(1) Whether there was a judgment entered against Riendeau in the Personal Injury Action,

(2) Whether that judgment has been satisfied, and

(3) If that judgment has not been satisfied, the outstanding amount of the judgment. [ 31 ] Based on my review of the evidence, I am satisfied that there is no genuine issue for trial with respect to the Zawaski and McNamara Judgment Renewal Actions. Riendeau does not dispute that the Zawaski and McNamara Judgments were entered against him and that both Judgments remain outstanding except for the $500.00 payment made in March 2006 to the credit of the Zawaski Judgment. [ 32 ] Riendeau’s defence to the Judgment Renewal Actions is based on the following allegations:

(1) He was not the owner of the vehicle involved in the collision,

(2) He was not properly served with the Statement of Claim in the Personal Injury Action or with any notice of a judgment being entered against him,

(3) The Zawaski and McNamara Judgments were not properly assigned to the Administrator,

(4) The Administrator failed to fully investigate and vigorously defend the claim against Riendeau in the Personal Injury Action,

(5) The Administrator improperly consented to the Zawaski and McNamara Judgments. [ 33 ] Of the above, the only allegation which relates to issues raised in the Judgment Renewal Actions is whether the Zawaski and McNamara Judgments were properly assigned to the Administrator. If the Judgments were not properly assigned, then the Administrator would not be able to recover the outstanding amounts of the Judgments directly from Riendeau.

Based on the evidence before me, I am satisfied that the allegation of an improper assignment of the Zawaski and McNamara Judgments does not raise a genuine issue for trial. [ 34 ] I conclude that the Administrator has discharged its evidentiary burden and I grant

summary judgment in both the Zawaski and McNamara Judgment Renewal Actions. [ 35 ] I turn now to consider the second set of

summary dismissal applications relating to the Counterclaims filed by Riendeau. The allegations contained in the Counterclaims are similar to those raised in the Statements of Defence summarized above. [ 36 ] One of the issues raised in the Counterclaims is whether Riendeau was properly served with the Statement of Claim in the Personal Injury Action. Attached as exhibits to both of the Reid Affidavits is a copy of the Affidavit of Service, which indicates that the Statement of Claim in the Personal Injury Action was personally served on Riendeau on December 19, 1992.

In the Riendeau Affidavit, Riendeau states that he recalls someone coming to his home and asking whether he had been involved in a collision in September 1992. Riendeau then stated that he advised this person that he was not involved in any way and did not own a vehicle which might have been involved in a collision at that time. He further states that he has no recollection of being left with any documents or otherwise being served with a Statement of Claim. I prefer the evidence contained in the Affidavits of Service because they were made contemporaneously with the making of service.

Riendeau’s denial of service rings hollow. I find that he was served with the Statement of Claim and properly noted in default. [ 37 ] As observed by Macklin J at para 26 of Montes v Al-Shiraida , 2011 ABQB 54 : In short, after being noted in default and with no order setting aside the noting in default, the Defendant was not entitled to notice of any subsequent proceedings in the action (Rule 144). There was nothing at all improper about the procedure followed by the Plaintiff and the Administrator in obtaining a judgment in the Manuel Montes action.

The Defendant’s application to now set aside the Consent Judgment is four and one-half years after the Consent Judgment was obtained and eight and one-half years after he was noted in default. There is no basis upon which to set it aside.

[ 38 ] None of the other allegations contained in the Counterclaims raise genuine issues for trial. IV. Conclusion [ 39 ] I grant the Administrator

summary judgment in the Zawaski and McNamara Judgment Renewal Actions in the amounts of $34,659.84 and $44,888.78 respectively, plus pre-judgment interest and separate sets of costs in each Action. Heard on the 12 th day of April, 2012 Dated at Edmonton, Alberta this 5 th day of July, 2012 D.R.G. Thomas J.C.Q.B.A. Appearances: Ms. Lisa A. Redmond (Chomicki Baril Mah LLP) for the Administrator of the Motor Vehicle Accident Claims Act Mr. Richard J. Mallett (James H. Brown & Associates) for the Defendant, Maurice Riendeau