Insurer argues plaintiff did not sustain permanent and serious injuries
In a matter involving injuries from a rear-end motor vehicle accident, the Ontario Superior Court of Justice found the proposed partial summary judgment inappropriate because it could lead to inconsistent findings impacting the litigants’ interests.
In Volmar v. Van Schnydel et al., 2026 ONSC 251, the defendant driver was operating a vehicle, owned by another defendant, without a licence in September 2019. The driver struck the back of the plaintiff’s vehicle, stopped at a red light.
The plaintiff filed an action against the defendant Dominion of Canada General Insurance in accordance with the OPCF-44R endorsement in his policy. The endorsement provided underinsured protection for third-party negligence up to the policy limits of $2,000,000.
Dominion requested a partial summary judgment motion on whether the court should summarily dismiss the claims against it because its ongoing involvement in the action was unwarranted.
Asserting that summary judgment was appropriate, Dominion alleged that the plaintiff would not meet the threshold of sustaining permanent and serious injuries.
Countering that summary judgment was inappropriate, the plaintiff argued that a dispositive motion was premature because the court could not assess the psychological component of the case based on an incomplete record.
The plaintiff pointed out that the examiner stated she could not determine whether to attribute a psychological injury to the accident and requested additional pre-accident medical records.
Certas Home and Auto Insurance Company, the insurer of the defendant vehicle owner, was a statutory third party in this action. Certas denied coverage and maintained its subrogation rights on its $200,000 statutory minimum policy limits.
A case conference sought to triage Dominion’s request for a partial summary judgment motion.
The Ontario Superior Court of Justice dismissed Dominion’s request, without prejudice to Dominion again pursuing a partial summary judgment motion after the filing of the trial record.
The court said it had jurisdiction to determine at the case conference the propriety of a partial summary judgment motion.
The court deemed it inappropriate to expend the parties’ and the court’s resources on the proposed partial summary judgment motion for three reasons:
First, the court ruled that a partial summary judgment motion, in which the judge would decide the issue based on a written record, might:
Second, the court saw likely significant credibility issues based on the submissions and materials for the case conference. The court noted that counsel of both sides advised that they would present competing expert reports.
The court pointed out that Dominion’s position that the plaintiff would not pass the threshold of sustaining permanent and serious injuries would primarily depend on credibility.
The court added that Dominion overstated its prospects of success and oversimplified the issue, which a decision-maker could not determine based on a few documents in two hours.
Third, the court held that the risk of a potential injustice due to inconsistent findings and credibility issues would outweigh any possible efficiency from the little time and expense saved.
The court concluded that the request for a partial summary judgment motion was premature. The court explained that the development of the evidentiary record could:
After some development in the record, the court acknowledged that it might be appropriate for Dominion to proceed with a partial summary judgment motion.
The court commented that the counsel who appeared at the case conference showed much professionalism, civility, and courtesy.
