) ) Johan Bergen Jr. Plaintiff – v. –, 2017 ONSC 6328

CITATION : Bergen Jr. v. Estate of Fast, 2017 ONSC 6328 COURT FILE NO.: 2607-14 DATE: 20171027 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: ) ) Johan Bergen Jr. Plaintiff – and – The Estate of Jake Fast, deceased, The Estate of Frank Wiebe, deceased and Johan Bergen Sr.

Defendants – and – Aviva Insurance Company of Canada added by Order pursuant to Section 258(14) of the Insurance Act , R.S.O. 1990, c. 1.8 Third Party ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) David Williams and Mana Khami, for the plaintiff Brian Smith, for the defendant Jake Fast Christopher Prince and Jennifer Hawn, for the third party Aviva ) ) HEARD: February 8 and August 16, 2017 hockin j. [ 1 ] On February 5, 2012, Johan Bergen Jr. (the “plaintiff”) was an occupant of an Oldsmobile Aurora motor vehicle, which was involved in an accident near Chatham. The accident was a single vehicle accident.

The plaintiff was 18 years of age at the time and lived with his parents at 1429 Mersea Rd. 2, Leamington. [ 2 ] The plaintiff shared the vehicle with Jake Fast and Frank Wiebe. Both men died from injuries sustained in the accident. The plaintiff sustained multiple serious injuries, including extensive burns. [ 3 ] On March 2, 2012, at London Health Sciences Centre, the plaintiff’s parents met and retained for their son, Mr.

Nigel Gilby of the Lerner law firm to investigate the circumstances of the accident and a claim by their son for damages for injuries suffered. [ 4 ] The Oldsmobile Aurora was purchased March 4, 2011 by the plaintiff’s father and registered then, in his name, as owner.

He added the Aurora to his auto policy with Aviva Insurance Company of Canada (“Aviva”) and added the plaintiff to the policy as an “occasional driver”. [ 5 ] The material on this motion and the Amended Statement of Claim refer to the plaintiff as “Johan Bergan Jr.” and the added defendant as “Johan Bergan Sr.”. [ 6 ] In fact, the plaintiff and his father share the same name, Johan Bergan.

The suffixes “Jr.” for the plaintiff and “Sr.” for the father have been added by amendment to the Statement of Claim to establish their separate identities for the purpose of this case. [ 7 ] A number of lawyers at the Lerner firm have been involved but the management and control of the file was with Mr. Gilby. Mr. Gilby is a senior lawyer with a wealth of experience in motor vehicle litigation. [ 8 ] The task of preparing the Statement of Claim was assigned by Mr. Gilby to a junior lawyer in the firm. He was called to the bar in 2010 but worked for Mr. Gilby and was familiar with this type of litigation.

His first involvement on the case was four months before issuance of the Statement of Claim.

[ 9 ] At all times, the position of the plaintiff has been that at the time of the accident he was a passenger and that either Jake Fast or Frank Wiebe was the driver. The action was therefore brought against their estates. [ 10 ] When the Statement of Claim was prepared, Mr. Gilby’s associate reviewed the Vehicle Registration Report and the Motor Vehicle Accident Report. His affidavit at paras. 6 - 9 sets out his review of these documents, and his reasons for his conclusion that the vehicle was owned by the plaintiff: 6.

At the time I drafted the Statement of Claim, I reviewed the Motor Vehicle Accident Report and the Ontario Ministry of Transportation Vehicle Registrations Search report. Attached to this Affidavit and marked as Exhibit “B” are copies of the Motor Vehicle Accident Report and the Ontario Ministry of Transportation Vehicle Registration report. 7.

It is the practice of lawyers in the personal injury department at Lerners LLP to rely on the information in the Motor Vehicle Accident Report and/or the Ministry of Transportation Vehicle Registrations Search report for the purposes of determining the individuals involved in the accident and who should be named as a Defendant, if required. It was also my practice to do so. The police carry out their statutory duties when they record that information and it has been my experience that that information is reliably recorded in virtually every case.

If there are other police investigation documents available, I will rely on that information as well. In this case, no further police documentation was available at the time of drafting the Statement of Claim. 8. At the time the Statement of Claim was issued, based on the information contained at Exhibit “B”, my office was under the belief that our client, Johan Bergen was the owner of the vehicle in question. In fact, we issued the claim in the name as evidenced by the front page of the Statement of Claim issued at the time.

The front page of the Statement of Claim is attached as Exhibit “C” to this Affidavit. 9. The Motor Vehicle Accident Report simply named “Johan Bergen” as the owner of the vehicle. It further did not indicate who was driving the car. The same ambiguity, with respect to ownership, existed with the Ministry of Transportation Vehicle Registrations Search report. [ 11 ] The Statement of Claim described the plaintiff as the owner of the vehicle.

The plaintiff’s father was not named in the action. [ 12 ] The Statement of Claim was issued January 31, 2014. [ 13 ] On July 31, 2014, a London solicitor appointed to defend the action for the estate of Jake Fast by email corresponded with Mr. Gilby as follows: The Statement of Claim appears to be in error in claiming that it was your client’s vehicle being driven when the accident occurred. It appears as though this stems from the fact that the Plaintiff and his father have the same name. Below is a medical record, which indicates that your client and his friends were in his “dad’s car”.

There are other medical records indicating the same. [ 14 ] The medical record referred to was an assessment report from the social work department of the Windsor Regional Hospital. The note was as follows: Mr. Bergen, when asked, did not disclose any difficulty coping. MVA, he states a friend was driving Mr. Bergen’s dad’s car. [ 15 ] On October 3, 2014, Mr. Gilby wrote to Aviva to say that “it has recently come to our attention that the owner of the vehicle was Johan Bergen Senior and not Johan Bergen Junior as we had originally believed.

We are currently in the process of bringing a motion to add Johan Bergen Senior to the claim”. [ 16 ] Aviva retained the Foster, Townsend firm and Mr. Prince of that firm by letter notified the Lerner firm that he would set out Aviva’s position on the motion to add Johan Bergen Sr. as a defendant.

For reasons which will not affect the result on this motion, Lerners moved without notice to bring before Madam Justice Leitch October 28, 2014 who granted an order adding the father as a defendant and amending the Statement of Claim to plead his ownership of the Oldsmobile Aurora and his liability as owner under the Highway Traffic Act for the negligence of either Jake Fast or Frank Wiebe. [ 17 ] Aviva was made a statutory third party to the action pursuant to s. 258(14) of the Insurance Act , R.S.O. 1990, c. I.8 by order of Justice Donohue dated December 2, 2014.

Aviva in its Statement of Defence pleads that the action as against Johan Bergen Sr. is out of time. This is Aviva’s motion under sub-rule 20.01(3) of the Rules of Civil Procedure for

summary judgment dismissing the action against him on the basis that there is no genuine issue requiring a trial on the issue of whether the action against him is statute barred under s. 4 of the Limitations Act , 2002 S.O. 2002, c. 24. [ 18 ] For the reasons that follow, I conclude that the action as against Mr. Bergen Sr. was commenced out of time and is dismissed as against him. Discussion [ 19 ] Aviva moves under sub-rule 20.04(1) for

summary judgment on the basis that there is no genuine issue with respect to whether Johan Bergen Sr. was added out of time. [ 20 ] Sub-rule 20.04(2.1) sets out the court’s powers on such a motion:

(2.1) In determining under clause (2)(

a) whether there is a genuine issue requiring a trial, the court shall consider the evidence submitted by the parties and, if the determination is being made by a judge, the judge may exercise any of the following powers for the purpose, unless it is in the interest of justice for such powers to be exercised only at a trial: 1. Weighing the evidence.

2. Evaluating the credibility of a deponent. 3. Drawing any reasonable inference from the evidence. [ 21 ] Sub-rule 20.02(1) is available on this motion: 20.01(1) An affidavit for use on a motion for

summary judgment may be made on information and belief as provided in subrule 39.01(4), but, on the hearing of the motion, the court may, if appropriate, draw an adverse inference from the failure of a party to provide the evidence of any person having personal knowledge of contested facts. [ 22 ] The applicable sections of the Limitations Act , 2002 are ss. 4 and 5 which provide as follows: 4 Unless this Act provides otherwise, a proceeding shall not be commenced in respect of a claim after the second anniversary of the day on which the claim was discovered. 2002, c. 24 , Sched. B, s. 4. 5

(1) A claim is discovered on the earlier of, (

a) the day on which the person with the claim first knew, (

i) that the injury, loss or damage had occurred, (ii) that the injury, loss or damage was caused by or contributed to by

an act or omission, (iii) that the act or omission was that of the person against whom the claim is made, and (iv) that, having regard to the nature of the injury, loss or damage, a proceeding would be an appropriate means to seek to remedy it; and (

b) the day on which a reasonable person with the abilities and in the circumstances of the person with the claim first ought to have known of the matters referred to in clause (a). 2002, c. 24 , Sched. B, s. 5 (1).

(2) A person with a claim shall be presumed to have known of the matters referred to in clause (1) (

a) on the day the act or omission on which the claim is based took place, unless the contrary is proved. 2002, c. 24 , Sched. B, s. 5 (2). [ 23 ] The obligation of the respondent to a motion for

summary judgment is to put his or her ‘best foot’ forward. As well, under s. 5(2) of the Limitations Act , the “person with a claim” bears the onus of proving that the statutory presumption that he or she knew the matters referred to in s. 5(1)(

a) when the injury or loss occurred is displaced by leading evidence to the contrary. [ 24 ] In my view, the respondent has failed to do so. I arrive at this conclusion for these reasons: 1. Mr. Gilby met the plaintiff’s father and mother March 2, 2012. At that point, he must have known them by name. At some point soon afterward, he must have met the plaintiff, but in any event, the plaintiff and his father were together with Mr. Gilby or an associate February 26, 2013. The plaintiff met with Mr. Gilby or an associate January 24, 2013 or days before the Statement of Claim was issued.

There is no affidavit from the plaintiff nor his father nor Mr. Gilby. They must have had personal knowledge of the contested facts, that the plaintiff and his father shared the same name and the father owned the vehicle. I draw an adverse inference from their failure to deliver affidavits. The only inference one may draw and to a high degree of probability is that it was known early on that the plaintiff and his father shared the same name and that the owner of the vehicle was the father.

In arriving at this conclusion, I am not unmindful that when counsel for Aviva asked for particulars of what was disclosed to Mr. Gilby at the March 2, 2012 meeting with the plaintiff’s parents that they were refused on the basis that solicitor and client privilege attached. However, the privilege was the plaintiff’s and his to waive. 2. In the alternative, I find that ownership of the vehicle with the father was discoverable with the exercise of reasonable diligence. Before proscription, the law firm received the records of the Windsor Regional Hospital.

The records include the note mentioned in para. 13 of these reasons. The records were received by the firm about November 23, 2012. A review of the file would have alerted the draftsmen to this. Reasonable diligence would have taken him through this document. 3. The plaintiff’s post-arrest interview with police was available to Mr. Gilby’s junior. The plaintiff told police that his father “he bought it for me … and I only paid him a thousand and the rest I never paid … So I want it to be mine but eventually and …”.

See pp. 45, 46 of the April 24, 2012 interview of the plaintiff by Constable Trahan. [ 25 ] This case is distinguishable from Brown v. Baum , 2016 ONCA 325 , where the Court of Appeal upheld a finding by the motion judge that the limitation period under s. 5(1)(

b) of the Limitations Act does not commence until the injured party knows that an action is an appropriate remedy. That is not this case. In this case an action was commenced in time. There could never be an argument that the appropriate remedy against the owner of the vehicle was anything other than to include him as a defendant in the action when the Statement of Claim was issued. [ 26 ] There are no genuine issues for trial on the limitation defence. The action against Mr. Bergen Sr. is out of time. It will be dismissed as against him. [ 27 ] Aviva is presumptively entitled to costs.

If the parties are unable to agree on liability or quantum, brief written submissions please, not more than three pages - Aviva within 15 days of the release of these reasons, 15 days from the plaintiff thereafter.

“Justice P. B. Hockin” Justice P. B. Hockin Released: October 27, 2017 CITATION : Bergen Jr. v. Estate of Fast, 2017 ONSC 6328 COURT FILE NO.: 2607-14 DATE: 20171027 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: Johan Bergen Jr. Plaintiff – and – The Estate of Jake Fast, deceased, The Estate of Frank Wiebe, deceased and Johan Bergen Sr. Defendants – and – Aviva Insurance Company of Canada added by Order pursuant to Section 258(14) of the Insurance Act , R.S.O. 1990, c. 1.8 Third Party REASONS FOR decision Hockin J. Released: October 27, 2017