Court of Appeal for Ontario

Date: 2017-09-28 Docket: C62647

Panel: Doherty, LaForme and Miller JJ.A.

Between

Karl Harris, Mark Dew and Riley Carver Dew, by her Litigation Guardian, Kari Harris Plaintiffs (Respondents)

and

Her Majesty the Queen in Right of Ontario, as represented by the Ministry of Community Safety & Correctional Services, Windsor Jail Superintendent Vic Villeneuve, Joe Doe, John Doe, Jeff Doe and Jane Doe Defendants (Appellant)

Counsel

Darrell Kloeze and Ann Christian-Brown, for the appellant

Andrew C. Murray, for the respondents

Asha James and Marc Gibson, for the intervener, The Urban Alliance on Race Relations

Heard

September 20, 2017

On Appeal

On appeal from the order of Justice P. Hebner of the Superior Court of Justice, dated August 2, 2016, with reasons reported at 2016 ONSC 4641.

Reasons for Decision

[1] We are satisfied that the question of law posed by the respondents in their motion brought under Rule 21.01(1)(a) could not be properly answered on the record before the motion judge. She should have dismissed the motion.

[2] Rule 21.01(1)(a) provides that a party may move for a:

determination, before trial, of a question of law, raised by a pleading in an action where the determination of the question may dispose of all or part of the action, substantially shorten the trial or result in a substantial saving of costs.

[3] The respondents asked the motion judge to answer the following question:

Are claims for recovery of legal expenses incurred in connection with the inquest conducted into the death of Jonathan Dew potentially recoverable in law as against the defendant, pursuant to s. 61(1) of the Family Law Act, R.S.O. 1990, c. F.3 (FLA), or are such expenses excluded claims, not potentially recoverable at law?

[4] Section 61(1) gives the named defendants a right to sue for "pecuniary loss resulting from" the death of the family member.

[5] The motion judge's answer as framed in her order reads:

Claims for recovery of legal expenses occurred in connection with the inquest conducted into the death of Jonathan Dew are potentially recoverable in law as against the defendants, pursuant to subsection 61(1) of the Family Law Act.

[6] Rule 21.01 is available only to answer "questions of law raised by the pleadings." The pleadings said nothing about a coroner's inquest or any legal expenses incurred by the respondents in connection with the inquest. In fact, the statement of claim predated the inquest. The respondents acknowledged that they would have to amend their pleadings and the motion judge gave leave for the respondents to do so (para. 10). She, however, decided the Rule 21.01 motion without any amendment to the pleadings.

[7] The motion judge could not properly answer the question raised on the motion without the actual pleadings said to raise the question of law. Without pleadings to properly identify the legal question and place it in the context of the allegations and claims made in the specific case, the response to the question posed on the motion was unlikely to significantly advance the litigation.

[8] The motion judge's answer proves the point. In her order, she described the legal expenses as "potentially recoverable" under s. 61(1) of the FLA. In her reasons (at para. 30), the motion judge made it clear that she was not addressing any of the issues upon which entitlement to payment of those legal expenses would ultimately depend. She said, "I make no determination of any other issue, including foreseeability, negligence and quantum."

[9] The motion judge's answer goes no further than to declare that if the legal expenses qualified as a "pecuniary loss resulting from the death", those expenses could be recoverable under s. 61(1) of the FLA. With respect, that answer simply declares that the respondents can recover if they qualify for recovery under the terms of s. 61(1).

[10] The answer provided by the motion judge did not further any of the purposes identified in Rule 21.01(1)(a). It did not dispose of any part of the action, shorten the trial, or result in any substantial saving of costs.

[11] This court has considered the principles governing the interpretation of s. 61(1) of the FLA in Macartney v. Warner, [2000] O.J. No. 30. The application of those principles to the respondent's claim for legal expenses arising from the coroner's inquest raises potentially difficult issues. Those issues are best resolved on a full record.

[12] The appeal is allowed and the order of the motion judge is set aside. The respondents are free to amend their statement of claim and advance their claim for legal expenses under s. 61(1) of the FLA. It will be for the trial judge to determine the merits of that claim.

[13] The respondents are entitled to costs on the motion and on the appeal. We fix the former at $3,692.28 (the amount awarded to the respondents by the motion judge). We fix the costs of the appeal at $5,000, inclusive of disbursements and taxes. No costs for or against the intervener.

"Doherty J.A."

"H.S. LaForme J.A."

"B.W. Miller J.A."