Executive Summary: Key Legal and Evidentiary Issues

• Default judgment granted due to defendant’s failure to respond after valid service attempts

• Claim arose from motor vehicle accident causing serious cognitive and psychological injuries

• Medical and economic evidence supported substantial income loss and future damages

• Plaintiff entered a full and final settlement and assigned recovery rights to her insurer

• Court analyzed default judgment rules to confirm liability and quantify damages

• Partial indemnity costs awarded for motion only, not for the full action

Background of the case

Sarah Konstantonis was injured in a motor vehicle accident on October 20, 2015, near Brockville, Ontario. She was driving northbound when her vehicle was rear-ended by Keith Topping. At the time, Konstantonis was a part-time coordinator earning approximately $20 per hour, and she had a history of anxiety and palindromic rheumatism but was otherwise functional. Following the collision, she began experiencing neck pain, headaches, facial numbness, and cognitive issues. She was initially diagnosed with a concussion and cervical sprain, and later with vestibular dysfunction and multiple psychological disorders.

Medical and economic impact

The injuries significantly impaired Konstantonis’ ability to work. She did not return to her job after the accident. Medical assessments confirmed lasting neurocognitive damage. An actuarial report estimated her past income loss between $2,602 and $57,548 depending on part-time or full-time assumptions, and future income losses between $405,804 and $1,020,534. These projections factored in income replacement benefits and anticipated early retirement scenarios.

Settlement and assignment of rights

On November 9, 2021, Konstantonis settled her tort claim with Allstate Insurance Canada for $250,000. As part of the agreement, she assigned her right of recovery to Allstate, enabling the insurer to seek reimbursement from the defaulting defendant, Keith Topping. Claims against Susette Topping and Certas Insurance were dismissed during earlier proceedings.

Proceedings for default judgment

Keith Topping was noted in default after multiple attempts at service were made, including personal service efforts and mailing to known addresses. In accordance with Rule 19 of the Rules of Civil Procedure, the court reviewed whether the deemed admissions of fact and supporting affidavit evidence substantiated liability and the amount of damages. The court concluded they did and granted default judgment against Keith Topping for $250,000, payable to Allstate.

Court’s legal analysis

The court applied Rule 19.02, which treats factual allegations as admitted when a party is noted in default, and Rule 19.05, which allows judgment motions for unliquidated damages to be supported by affidavit evidence. Rule 19.06 was also considered, requiring the court to independently assess whether the admitted facts justify judgment. After considering all evidence, the judge determined the threshold for liability and damages was met.

Decision on costs

Allstate sought both the costs of the motion and the overall action. The court allowed costs for the motion only, in the amount of $2,896.83, on a partial indemnity basis. It declined to award costs for the entire action, finding no legal authority supporting such recovery by an assignee. The court referenced previous case law suggesting a cautious approach to awarding costs where subrogation or assignment is involved.

Final outcome

Default judgment was granted in favour of Allstate Insurance Canada for $250,000, along with partial indemnity costs of $2,896.83. The defendant, Keith Topping, was held liable based on the deemed admissions from his default and the supporting evidence provided by the plaintiff and the insurer.