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Case Name:

Dasilva v. Ighodalo

Between

Kerry Dasilva, Plaintiff, and

Abhumhen L. Ighodalo, Defendant

[2007] O.J. No. 5158

163 A.C.W.S. (3d) 663

Court File No. SC-00028736-0000

Ontario Superior Court of Justice

Small Claims Court - Toronto, Ontario

C. Ashby Deputy J.

November 13, 2007.

(5 paras.)

Tort law -- Negligence -- Evidence and proof -- Motor vehicles -- Liability of driver -- The plaintiff's

insurer was awarded $10,000 in damages in a subrogated claim for damage sustained in a motor

vehicle accident -- The defendant had stopped at the stop sign, but then proceeded when it was

unsafe to do so.

The plaintiff's insurer sought damages for injuries suffered in a motor vehicle accident in this

subrogated claim where the amount of damages was not in dispute -- The plaintiff's car was struck

while proceeding northbound -- HELD: The defendant was solely responsible for the accident and

the insurer was awarded the agreed-upon sum of $10,000 plus pre-judgment interest -- The

defendant's vehicle had stopped at a stop sign, but then proceeded when it was unsafe to do so --

Despite the difficult conditions, including rain and construction, it was incumbent on the defendant

not to cross until safe to do so.

Counsel:

Agent for the Plaintiff: Mr. M. Riddell.

Counsel for the Defendant: Mr. R. Odeleye.

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REASONS FOR JUDGMENT

1 C. ASHBY DEPUTY J.:-- This action is for damages resulting from a motor vehicle

accident on December 10, 2004. It is a subrogated claim made by the insurer of the plaintiff and the

amount of the damages are not in dispute. The insurer paid out more than $10,000 to repair the

plaintiff s vehicle, as appears from the affidavit of Mr. Titus filed at trial, but limits the claim to

$10,000.

2 The defendant attached to his Defence what appeared to be a valid policy of insurance, but

after the evidence of Ms. Roach from TD Insurance, it is clear that that policy had been cancelled

and the defendant was without insurance at the time of the accident. Ms. Roach had sent a registered

letter dated June 1, 2004, to the defendant by registered mail, which the defendant had signed for.

This letter cancelled the policy of insurance due to a major conviction of the defendant within the

last 3 years preceding the policy date.

3 I find the defendant to be solely responsible for the accident. The plaintiff was proceeding

northbound on Dovercourt on the morning of December 10, 2004. As she approached Geary

Avenue, the car being driven by the defendant struck her vehicle. The defendant's vehicle had

stopped at the stop sign at Geary Avenue but then proceeded into Dovercourt when it was not safe

to do so. He intended to cross over Dovercourt and continue east on Geary. The conditions were

difficult, as it was raining and there was construction on Dovercourt. However it was incumbent on

the defendant to not cross Dovercourt until it was safe to do so. The impact of the collision sent the

plaintiffs vehicle almost into the building on the northeast corner of the intersection. The damage to

the plaintiff's vehicle was solely to the left side.

4 The police were called and the defendant relied on the fact that he was not charged. The

police report however states that the vehicles had been moved by the time the officer arrived so he

was unable to determine liability.

5 As a result of hearing the evidence of both parties and in particular the nature of the roads the

parties were travelling on, the nature of the damage to the plaintiffs vehicle, I find the plaintiff is

entitled to judgment for $10,000.00 plus prejudgment interest from December 10, 2004, to today's

date at the rate of 2.8% per annum. If they wish the parties may make written submissions on costs

through the court office within fourteen days of the receipt of these reasons.

C. ASHBY DEPUTY J.

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