Volmar v. Van Schnydel et al., 2026 ONSC 251 (CanLII)
Reading time: 4 minutes (approx.)
By: Sarah Richard
On September 12, 2019, the Plaintiffs’ vehicle was stopped at a red light when they were rear ended by the unlicensed driver, Mr. Schyndel (the Defendant). Mr. Schyndel was denied coverage by Certas Home and Auto Insurance and the Plaintiff submitted a claim under his own insurance policy, specifically under the OPFC-44R endorsement which provides underinsured coverage up to $2,000,000. The Plaintiffs’ insurer, Dominion of Canada General Insurance (Dominion), stood in for the uninsured Defendant driver, and requested to proceed with partial summary judgment.
Dominion argued that a partial summary judgment was appropriate as the Plaintiff would not meet the threshold for permanent and serious injuries, would not have the evidence for future care needs and was earning more income post-accident. They also believed that the Plaintiffs damages would not exceed $200,000 which would be covered by the Defendants’ insurer despite its off-coverage position.
The Plaintiff opposed the partial summary judgment and argued that it was premature due to an incomplete evidentiary record. He submitted that the threshold argument could not be fairly determined at this stage and the damages were not subject to statutory threshold or deductibles. The Plaintiff also argued that there were on going medical and psychological issues and that there was a need for further evidence to assess damages.
The court dismissed Dominion’s request for partial summary judgment, finding it was not an appropriate or just means of resolving the issues at this stage.
Applying the principles from Hryniak v. Mauldin and the three-part test in Malik v. Attia, the court held that the motion failed to meet the requirements of proportionality, efficiency, and fairness. It found a real risk of inconsistent findings, as the motion would overlap with issues, such as damages and credibility, that would also be determined at trial, potentially constraining the trial judge. The court emphasized that the case involved significant credibility assessments, including competing expert evidence on the Plaintiff’s injuries and future care needs, which could not be fairly resolved on a written record.
Although Dominion argued the motion would save time and resources, the court concluded that any efficiency gains were outweighed by the risk of injustice, particularly given the underdeveloped evidentiary record. The court further cautioned that summary judgment should not be used to obtain advisory rulings to influence settlement.
The request was dismissed without prejudice, leaving open the possibility that a similar motion could be appropriate at a later stage once the record is more fully developed.
