SJ Motions - The Implications of Not Showing Up and Taking Adverse Position Later: D'Onofrio v. Advantage Car & Truck Rentals Limited, 2017 by Robert Jones

Feb 27, 2017

The overarching issue before the Court of Appeal in D’Onofrio was whether determinations in a summary judgment motion were binding on all parties to a proceeding in which the motion was brought.

Mr. D’Onofrio alleged he was injured after his vehicle was rear-ended by another vehicle. Although the other driver spoke with him at the scene of the accident, she left without providing any ownership or insurance information. Mr. D’Onofrio recorded the other driver’s licence plate number and the police tracked the plate number to a vehicle owned by Advantage Car & Truck Rentals Limited (“Advantage”).

Mr. D‘Onofrio had a standard automobile policy with Unifund Assurance Company (“Unifund”) that contained an unidentified motorist provision. As a result, he brought an action against Advantage, Jane Doe (the unidentified driver) and Unifund (under the unidentified motorist provision). Unifund would only be responsible for payment if the proper defendant could not be located.

During the course of the proceedings, it was determined that Ms. Anita Marques was the likely driver of the vehicle. At discovery, Mr. D’Onofrio confirmed Ms. Marques was the woman he had spoken to at the scene of the accident. She was an employee of Advantage. As a result, counsel for Advantage assumed her representation. 

Following discoveries, Unifund brought a Summary Judgment Motion to have the action dismissed against it because the driver and owner of the vehicle were known. None of the other parties filed responding materials or attended the Summary Judgment Motion. The Order was issued on consent (“First Order”).

Shortly after the Summary Judgment Motion, counsel for Advantage and Ms. Marques informed the Plaintiff they would continue to rely on the ‘identity defense’ at trial. They maintained the driver and owner of the vehicle remained unknown. They alleged that the motion judge had erred in issuing the Order on consent because Advantage and Ms. Marques had not provided a position to the motion. As such, they argued the First Order did not limit their ability to rely on the ‘identity defense.’

Mr. D’Onofrio brought a motion to clarify the First Order and preclude Advantage and Ms. Marques from relying on the identity defense. He claimed their failure to take a position to the Summary Judgment Motion prevented them from arguing the driver and owner remained unidentified.  The Plaintiff further alleged that Unifund could only be granted the dismissal if the identity of the driver and owner did not present a genuine issue at trial.

The Clarification Motion judge dismissed the motion and amended the summary judgment Order to reflect that the motion had been issued ‘unopposed’ rather than on consent (“Second Order”). While the Clarification motion judge agreed that the First Order decided the issue of the identity defence, he held that Advantage and Marques’ failure to participate in the Summary Judgment Motion did not stop them from litigating the issue.

On appeal, the Court of Appeal disagreed. Advantage and Ms. Marques’ ability to maintain the identity defence was directly affected by the First Order as parties to the action. Unifund brought the Summary Judgment Motion on the basis that a driver and owner had been identified. A dismissal Order could only be obtained if the Court was satisfied the driver and owner’s identities did not present a genuine issue at trial. As such, Advantage and Ms. Marques’ ability to raise the identity defense was contingent on the Summary Judgment Motion being dismissed. The First Order established the fact for the remainder of the proceeding. Advantage and Ms. Marques were bound by the First Order as parties to the action and could not subsequently contest the issue. By taking no position, they had essentially conceded that the driver had been identified. 

In coming to its decision, the Court of Appeal acknowledged that Advantage and Ms. Marques erred in their belief that they could take no position to the Summary Judgment Motion and continue to rely on the identity defense. It provided some respite, setting aside the First and Second Orders. The Court of Appeal held that the clarification judge had erred in amending the First Order to reflect that it was unopposed rather than on consent. There is a substantial difference between a consent order and a motion that went unopposed. A consent Order is “not a judicial determination on the merits of a case but only an agreement elevated to an order on consent.” An unopposed motion requires the Court to assess what is fair and reasonable. Neither the Summary Judgment Motion or Clarification Judge had determined the merits of the case. As such, Unifund should not have been granted a dismissal Order.

The Court of Appeal dismissed the Summary Judgment Motion without prejudice to Unifund’s right to renew it.

D’Onofrio is an important case because it highlights that factual determinations made in Summary Judgment Motions are binding on all parties to a proceeding. Failure to participate in the motion will not allow a party to subsequently dispute those conclusions. Instead, a party must become involved in the Summary Judgment Motion where it believes the Order will resolve factual issues that may later impact a party’s ability to raise a defense.

Robert Jones is a student-at-law at ZTGH. If you have questions about this blog, please contact him here.