DATE: 20061019

DOCKET: C45589

COURT OF APPEAL FOR ONTARIO

RE:

ZBIGNIEW TUREK (Plaintiff/Appellant) – and KAYCAN GROUP OF COMPANIES and STEPHANE MARCOTTE, carrying on business under the firm name and style of DENEIGEMENT S. MARCOTTE ENR. (Defendants/Respondents)

BEFORE:

WEILER, BLAIR and ROULEAU JJ.A.

COUNSEL:

Todd J. McCarthy

for the appellant

Hillel David

for the respondent

HEARD & ENDORSED:

October 18, 2006

On appeal from the judgment of Justice Donald S. Ferguson of the Superior Court of Justice dated May 23, 2006.

A P P E A L B O O K E N D O R S E M E N T

[1] The test on a motion for summary judgment is whether there is any genuine issue for trial. Disputed facts raise an issue for trial. Foreign law is a question of fact. Here the motion judge chose one legal opinion about the scope of the prohibition in the Quebec Automobile Insurance Act over another. The opinions of the experts on the application of the test to the facts were diametrically opposed to one another. Thus while the test under Quebec law, which is whether the injury occurred in the general context of the use of an automobile was not in dispute, the application of the law was. The judge hearing a motion respecting the application of foreign law was not entitled to look beyond the opinions of the experts. While the basic facts are not in dispute, these are competing inferences about the role of the facts respecting the automobile. The appeal is allowed and the summary judgment is set aside. Costs of the appeal here and below are agreed at $10,000 all inclusive and are payable to the appellant.