The Effectiveness of Summary Judgment in Resolving Liability Disputes with OPCF 44R Carriers
Overview:
A recent decision from the Ontario Superior Court exemplifies the effectiveness of summary judgment in addressing liability disputes between a defendant OPCF 44R carrier and co-defendant vehicle operator in motor vehicle accident litigation.
In Farrugia v. Doe et. al., 2025 ONSC 3065, an OPCF 44R carrier sought a determination from the court, prior to trial, as to whether a co-defendant driver, who involved in the subject motor vehicle collision, was at least 1% liable for the collision. Ultimately, the court determined that based on the evidentiary record in front of it, the co-defendant driver was not liable and dismissed the co-defendant driver from the action.
Background Facts:
This action arose from a July 2, 2019, motor vehicle accident involving the plaintiff, Charmaine Farrugia, the defendant, William Bezemer, and an alleged unknown driver. The plaintiff alleged that an unknown driver rearended Mr. Bezemer’s vehicle, which in turn rear-ended the plaintiff’s vehicle, resulting in injuries to the plaintiff.
The plaintiff commenced an action naming Mr. Bezemer and the John Doe driver as defendants. The plaintiff also named Allstate Insurance Company of Canada (“Allstate”), as Allstate provided the plaintiff with unidentified motorist insurance coverage.
Allstate eventually commenced a summary judgment motion to determine whether the co-defendant, William Bezemer, was at least 1% liable for the subject motor vehicle accident. If Mr. Bezemer was found to be at least 1% liable, Allstate would be availed of liability and would not need to provide unidentified insurance coverage given the available third party liability limits through Mr. Bezemer.
Issues:
The Court considered three issues on the summary judgment motion:
- Whether there was a genuine issue for trial or is this an appropriate case for determination by way of summary judgment?
- Whether a third vehicle was involved in the accident?
- Whether Mr. Bezemer was at least 1% liable for the accident?
Analysis and Ruling:
Whether there is a Genuine Issue for Trial?
The motion court Judge quickly determined that the matter was appropriate for summary judgement. The Judge could assume that the parties had advanced their best case and that the record before the Judge contained all the evidence that the parties would present at trial. The parties also agreed that this matter could be determined by summary judgment. The Judge ultimately found that there were no genuine issues requiring a trial.
Whether a Third Vehicle was Involved in the Accident
The Judge determined that, on a balance of probabilities, a third vehicle was involved in the accident and struck Mr. Bezemer’s vehicle from behind.
The Court considered various pieces of evidence put forward in making its finding, including the following:
- Police officer’s notes and the collision reports contained in the police file that referenced a third vehicle being involved in the accident.
- A vehicle repair quotation indicated that Mr. Bezemer’s vehicle had damage consistent with being hit from behind.
- Mr. Bezemer gave evidence that a minivan struck him from behind but quickly pulled back into traffic and drove away.
The court also considered evidence from the plaintiff but found the plaintiff’s evidence largely unhelpful. The court considered the fact that the plaintiff was noted to be in shock following the accident, decreasing the weight given to the plaintiff’s evidence.
Whether Mr. Bezemer was at Least 1% Liable for the Accident
After determining that summary judgement was an appropriate means of disposing of the matter, the Court discussed the law regarding the 1% Rule and liability generally.
The “1% Rule” refers to Section 2(1)(c) of O. Reg 676, which sets out that an insurer is not liable under s. 265 of the Insurance Act where the insured person is entitled to recover money through the third party liability portion of a motor vehicle liability policy. Section 265 sets out the mandatory requirements for motor vehicle accident policies to provide insurance coverage for uninsured and unidentified automobile accidents.
In this case, if Mr. Bezemer was found to be at least 1% liable, Allstate would not need to provide unidentified automobile coverage to the plaintiff. In determining whether Mr. Bezemer was liable, the court cited Isaac Estate v. Matuszynska, 2018 ONCA 177 which outlines the appropriate standard of care in situations of emergency:[1]
To avoid liability, a person must exercise the standard of care that would be expected of an ordinary, reasonable, and prudent person in the same circumstances. What is reasonable depends in part on the likelihood of a foreseeable harm. In an emergency, a person is not to be held to a standard of perfection. As the Supreme Court stated, “it is trite law that faced with a sudden emergency for the creation of which the driver is not responsible he cannot be held to a standard of conduct which one sitting in the calmness of a courtroom later might determine was the best course.” [Emphasis added; citations omitted.]
The Judge also noted the doctrine of “agony of the moment” (A.K.A the emergency doctrine). This doctrine provides a defence to the standard of care element in negligence by excusing a defendant’s conduct in situations of emergency which might otherwise be considered negligent.[2]
Upon a review of the evidence, the Court determined that Mr. Bezemer was not liable for the accident. The Court relied mainly on Mr. Bezemer’s evidence, which included:
- Mr. Bezemer’s evidence that he could have stopped safely behind the plaintiff’s vehicle if he was not struck from behind.
- Mr. Bezemer’s evidence explaining that he released his brakes to soften the rear impact to his vehicle when he saw the unknown vehicle quickly approaching from behind.
- Mr. Bezemer’s evidence that he exited his vehicle post-accident and witnessed the unknown vehicle pull back into traffic and drive away.
Further, the Judge also considered whether Mr. Bezemer failed to avoid or minimize the accident. The plaintiff argued that Mr. Bezemer was following the plaintiff’s vehicle too closely, and Mr. Bezemer’s actions in releasing his vehicle’s brake prior to impact were negligent. However, the Judge found that, based on the available evidence before her, she could not find, on a balance of probability, that Mr. Bezemer was negligent.[3] Mr. Bezemer was not being held to a standard of perfection and acted reasonably given the application of the doctrine of “agony of the moment” in the given circumstances.
Ultimately, the Judge determined that there was no evidence upon which she could conclude that Mr. Bezemer failed to exercise the standard of care of an ordinary, reasonable, and prudent person in his same circumstances.
The Judge dismissed Allstate’s motion and dismissed the action as against Mr. Bezemer in a reverse summary judgment fashion.
Conclusions and Takeaways:
Despite Allstate being unsuccessful on its motion, this case demonstrates the benefit and effectiveness of summary judgment where liability is in dispute between an OPCF 44R carrier and co-defendant vehicle operator.
The goal of summary judgment is to provide an expeditious and less expensive means than a trial to achieve just results, as touted in Hryniak v. Mauldin.[4] The outcome of Allstate’s motion arguably resulted in a less costly and expeditious outcome, as opposed to a trial, as it addressed a major issue in the litigation, namely liability of the defendants.
In most cases, a determination of liability will allow the parties to move on to the issue of damages and potentially settle the action prior to trial. Counsel would be wise to consider the appropriateness of summary judgment where liability is in dispute between an OCPF 44R carrier and co-defendant, and liability cannot be resolved amongst the parties.
[1] At para 20.
[2] At para 21.
[3] At paras 52 and 56.
[4] Hryniak v. Mauldin, 2014 SCC 7.