Court of Appeal for Ontario
Date: 20231205 Docket: COA-22-CV-0057, COA-22-CV-0151 & COA-22-CV-0155 Judges: Hourigan, Roberts and Coroza JJ.A.
Docket: COA-22-CV-0057 & COA-22-CV-0155
BETWEEN
Betty Jo Lynn Algra, personally and as Estate Trustee of the Estate of Danny Monteiro, deceased, Marissa Monteiro, Sierra Lynn Louise Algra and Austin Hank James Algra, all minors, by their Litigation Guardian, Betty Jo Lynn Algra
Plaintiffs
and
Paul M. Mingay, The Litigation Administrator of the Estate of Andrew Comrie, His Majesty the King in Right of Canada, as represented by the Minister of Fisheries and Oceans, His Majesty the King in Right of Ontario, as represented by the Minister of Transportation for the Province of Ontario, and The Corporation of the Town of Leamington
Defendants
Docket: COA-22-CV-0151 & COA-22-CV-0155
AND BETWEEN
Danielle Feltham
Plaintiff
and
Paul M. Mingay, The Litigation Administrator of The Estate of Andrew Comrie, The Estate of Danny Monteiro, Attorney General of Canada, His Majesty the King in Right of Ontario, and The Corporation of the Municipality of Leamington
Defendants
Counsel: Donald W. Leschied, Myron W. Shulgan, K.C., and Jacob Benson, for the appellants/respondents by way of cross-appeal (COA-22-CV-0057), and for the respondents (COA-22-CV-0155), Betty Jo Lynn Algra et al. Greg Monforton and Heather Colman, for the appellant/respondent by way of cross-appeal (COA-22-CV-0151), and for the respondent (COA-22-CV-0155), Danielle Feltham Larry Abey and N. Marnie Kirby, for the respondent/appellant by way of cross-appeal (COA-22-CV-0057 & COA-22-CV-0151), and the appellant (COA-22-CV-0155), Paul M. Mingay, Litigation Administrator of the Estate of Andrew Comrie Dallas J. Lee and Jordan D. Sharpe, for the respondent/appellant by way of cross-appeal (COA-22-CV-0057 & COA-22-CV-0151), and the appellant (COA-22-CV-0155), Betty Jo Lynn Algra as Estate Trustee of the Estate of Danny Monteiro Joel Levine and Andrew Franzke, respondent/respondent by way of cross-appeal (COA-22-CV-0057 & COA-22-CV-0151), His Majesty the King in Right of Canada, as represented by the Minister of Fisheries and Oceans and the Attorney General of Canada Giovanna Asaro, for the respondent/respondent by way of cross-appeal (COA-22-CV-0057 & COA-22-CV-0151), His Majesty the King in right of Ontario, as represented by the Minister of Transportation for the Province of Ontario Alexander R. Szalkai, for the respondent/respondent by way of cross-appeal (COA-22-CV-0057 & COA-22-CV-0151), The Corporation of the Municipality of Leamington
Heard: November 6, 2023
On appeal from the orders of Justice Kirk W. Munroe of the Superior Court of Justice, dated August 4, 2022, with reasons at 2022 ONSC 4539, August 10, 2022, with reasons at 2022 ONSC 4637, and February 15, 2023, with reasons at 2023 ONSC 1139.
Hourigan J.A.:
A. Overview
[1] These appeals arise from a tragic accident on June 5, 2011. Danny Monteiro, Andrew Comrie, Betty Jo Lynn Algra, Danielle Feltham, and Sarah Burns were in a nighttime boat crash. They were on Monteiro’s boat, and Comrie was driving at the time. They crashed into a breakwater south of the Leamington Harbour. Monteiro, Comrie, and Burns died, and Algra and Feltham were badly injured. At the time of the accident, Comrie had a blood alcohol level that was over the legal limit. He had also been smoking marijuana earlier in the evening.
[2] Ontario owns the breakwater. Prior to the accident, the Government of Canada installed navigation aids on the breakwater. Specifically, it installed a green light at the east end and a flashing yellow light on the west end. The Corporation of the Municipality of Leamington (“Leamington”) owns and operates the Leamington Municipal Marina (the “Marina”) located in the harbour behind the breakwater. Leamington had installed sodium vapour lights on shore that were visible from the water.
[3] Two actions were commenced as a result of the accident, the Algra Action and the Feltham Action, which were consolidated. Algra brought an action individually, in her capacity as trustee for the Estate of Danny Monteiro (the “Monteiro Estate”), and as litigation guardian for her three children (the “Algra Action”). The Algra Action named the Estate of Andrew Comrie (the “Comrie Estate”), Canada, Ontario, and Leamington as defendants. Feltham brought an action against the Comrie Estate, the Monteiro Estate, Canada, Ontario, and Leamington (the “Feltham Action”).
[4] Three separate appeals are before this court:
- The Liability Appeal – On August 4, 2022, the motion judge issued a summary judgment ruling apportioning liability equally between Comrie and Monteiro. The motion judge found that Canada, Ontario, and Leamington (collectively, the “Government Respondents”) were not liable because Comrie and Monteiro alone caused the accident. Feltham and Algra (collectively, the “Liability Appellants”) challenge the finding that the Government Respondents are not liable.
- The Estates’ MLA Appeal – On August 10, 2022, the motion judge issued a pre-trial determination of a question of law, holding that s. 29 of the Marine Liability Act, S.C. 2001, c. 6 (“MLA”) limits claims for death or injury arising from maritime accidents to $1,000,000, exclusive of costs and interest. [1] The Comrie Estate and the Monteiro Estate (collectively, the “Estates”) appeal this ruling, asserting that costs and interest should be included under the cap.
- The Estates’ Costs Cross-Appeal – On February 15, 2023, the motion judge issued a Sanderson Order and fixed the quantum of costs payable from the summary judgment motions. The Estates seek leave to appeal this order. In addition, the Comrie Estate also seeks leave to appeal the costs award on the basis that the motion judge erred in finding that it was solely responsible for Algra’s costs on the summary judgment motions.
[5] I would dismiss the Liability Appeal and the MLA Appeal. I would also deny leave on the Estates’ Costs Cross-Appeal, save for the issue regarding the liability for Algra’s costs. I would allow the appeal on that issue alone. In summary, my reasons for reaching these conclusions are as follows:
- The Liability Appeal – The motion judge focused on causation when considering the potential liability of the Government Respondents. With respect to Canada and Ontario, he concluded that the real cause of the accident was not the intensity of the breakwater lights. Instead, he found that Comrie and Monteiro were aware of the breakwater and could see its lights, but they were “not paying attention and were going too fast so close to the breakwater at night.” With respect to Leamington, the motion judge rejected the argument that its installation of sodium vapour lights on land was a cause of the accident. He found that the boat was travelling east/southeast, which would place the Marina’s lights to the vessel’s left, so they would not have interfered with the ability of Comrie or Monteiro to see the breakwater and its navigational aids. These factual findings were well rooted in the evidence and were properly relied on by the motion judge in finding that causation with respect to the Government Respondents had not been established. The Liability Appellants have not met their onus of establishing a basis for appellate interference with the motion judge’s analysis.
- The Estates’ MLA Appeal – The motion judge undertook a careful review of the MLA and determined that, when imposing a monetary cap for maritime claims for “loss of life or personal injury,” Parliament did not intend to include claims for costs and interest. He observed that these claims serve different purposes than those for loss of life or personal injury. The role of costs is to ensure that litigation is conducted in an efficient, fair, and just manner. The role of prejudgment interest is to account for the delay between injury and judgment. I agree with that analysis and, therefore, would dismiss this appeal.
- The Estates’ Costs Cross-Appeal – Leave to appeal the motion judge’s quantification of costs and his Sanderson Order should be denied. The motion judge properly applied the applicable law and committed no error in making his highly discretionary costs order. However, as counsel for the Monteiro Estate properly conceded, the motion judge erred in finding that the Comrie Estate is solely responsible for Algra’s costs of the summary judgment motions, given that the Comrie Estate cross-claimed against the Monteiro Estate. I would allow the appeal on this issue and order that Algra’s costs of the summary judgment motion be split equally between the Estates.
B. Analysis
(i) Liability Appeal
[6] As noted, the motion judge’s determinations regarding the Government Respondents’ liabilities were grounded in his causation analysis. The Liability Appellants assert multiple grounds of appeal, most of which do not engage directly with the motion judge’s causation analysis but attack it on the edges. They submit that the motion judge made several factual and legal errors that impacted his analysis of the potential liability of the Government Respondents. Specifically, they argue that the motion judge erred in: (a) drawing an improper inference from the evidentiary record about whether the yellow light on the west end of the breakwater was visible, (b) not undertaking a duty of care or standard of care analysis for the Government Respondents, (c) failing to utilize the material contribution test to determine causation, (d) finding that the sodium vapour lights were not a cause of the accident, and (e) finding, based on an unreasonable inference, that Comrie and Monteiro were not keeping a proper lookout. Each of these submissions will be considered in turn.
(a) Visibility of the Yellow Light
[7] The Liability Appellants submit that the motion judge drew an impermissible inference, which infected his legal analysis on the issue of liability. They argue that the motion judge erred in making the following finding:
I find that the amber/yellow light at the west end of the breakwater was operational and clearly visible on the night in question. I make this finding based on all the evidence I accept making specific note of the evidence of Feltham, the first responders, the two collision reconstructionists and Captain Trombley.
[8] This submission is not persuasive and is refuted by the motion judge’s consideration of the relevant evidence in his reasons. With respect to the evidence of Feltham, the motion judge reviewed her testimony, including that when she emerged to the surface of the water after being thrown from the boat, she was only 30 feet from the yellow light. He observed that she was angry after seeing the light: “Feltham described her feelings on emerging from under the water as anger: how could they have not seen this light – ‘it’s right in front of my face.’” The motion judge cited the evidence of Captain Trombley of the Canadian Coast Guard, who participated in an early morning search effort on June 6, 2011, after the accident. Captain Trombley stated that she observed the light at the west end of the breakwater throughout the night. The motion judge also relied on the evidence of the first responders who “saw the lights on both ends of the breakwater and noted that they were operational” and the two collision reconstructionists who testified that they could see the lights when they arrived at the scene around 4:30 a.m.
[9] Based on the foregoing, it appears that the motion judge’s finding that the yellow light was operational and clearly visible was well supported by the evidence. However, the Liability Appellants submit that the inference was unreasonable for two reasons.
[10] First, they argue that the witnesses that the motion judge relied on were all observing the light from a different vantage point than the passengers on the boat at the time of the accident. Therefore, their evidence should not have been relied on by the motion judge to conclude what Comrie or Monteiro’s observations would have been. I do not accept this submission. While it is true that the witnesses had different vantage points, they were all able to observe that the light was operational and visible. In this regard, the testimony of Feltham was particularly compelling because she was able to clearly see the light as she emerged from underwater while she was very close to the resting spot of the vessel.
[11] The second argument advanced in support of this ground of appeal is that the motion judge failed to reconcile the post-accident evidence, including a report prepared by Gary Greer and Eric Ashby, two members of the Canadian Coast Guard (the “Coast Guard Report”), with his finding regarding the visibility of the yellow light. In fact, the motion judge undertook a detailed review of the conclusions in their report. He focused on their initial conclusion that the lights installed by Leamington on shore made it difficult to observe the yellow light at the west end of the breakwater. The motion judge noted that Ashby explained in a subsequent affidavit that their conclusion in this regard was based on the erroneous premise that the vessel was coming from the sea to the shore and travelling from south to north. If this were the case, the boat would have headed toward the shore lights. However, Ashby testified that given that “the vessel was headed in a south-east direction it would have put the Leamington Harbour/Marina lights beside it to the left, not ahead. Accordingly, the yellow flashing light … should have been visible from 3.68 [nautical miles] as there is little to no background lighting when viewed from that direction.”
[12] As I will explain below, the motion judge found – correctly, in my opinion –that the boat was travelling in a south or south-east direction. Therefore, he reconciled the Coast Guard Report with his conclusion that the flashing yellow light was operational and visible. In summary, the impugned factual finding was well supported by the evidence and available to the motion judge.
(b) Duty of Care and Standard of Care Analyses
[13] The Liability Appellants submit that, while the motion judge conducted a duty of care analysis for both Comrie and Monteiro in their respective roles as “operator” and “master” of the vessel, he did not undertake a duty of care analysis for the Government Respondents. The Liability Appellants argue that this is an error in law. With respect to Canada – namely, Transport Canada and the Canadian Coast Guard – they submit that the duty of care arises from the federal legislative scheme that mandates the protection of mariners and imposes a duty to ensure the safety of life at sea. The Liability Appellants rely on the Canada Shipping Act, S.C. 2001, c. 26, s. 6 and the Navigable Waters Protection Act, R.S.C., 1985, c. N-22, ss. 5, 14 (the “NWPA”). Finally, they argue that Canada was aware of visibility issues with respect to the flashing yellow light and prior accidents at this site but did nothing to fix the problem before the accident on June 5, 2011.
[14] With regard to Ontario, they note that the Ontario Ministry of Transportation owned the breakwater and submit that it has to comply with its regulatory duties as owner, including duties under the Occupier’s Liability Act, R.S.O. 1990, c. O.2. Based on the foregoing, the Liability Appellants argue that the motion judge had the evidence needed to make findings regarding the duties of care owed by Canada and Ontario.
[15] This ground of appeal may be dealt with summarily. It is evident from the motion judge’s reasons that he proceeded on the basis that the Government Respondents all owed a duty of care to the Liability Appellants. For example, he stated, “Accepting that Canada had a duty to increase the intensity of the breakwater lights and assuming that Canada’s failure to do so was a breach of that duty, from what evidence do the plaintiffs establish causation that ‘but for’ this failure, the accident would not have occurred?” The motion judge’s analysis focused on the issue of causation and the motion proceeded on the basis that all Government Respondents owed a duty of care to the Liability Appellants.
[16] The Liability Appellants also take issue with the absence of a standard of care analysis. According to them, it was a material and extricable error of law not to have engaged in that analysis. I disagree. Courts of appeal across the country have impressed on trial judges the need to engage with what truly is in issue in a proceeding and not waste precious judicial resources on matters that are unnecessary to determine in the final analysis of a case. The motion judge did just that in his reasons. It is evident that he took a metaphorical step back and concluded that determining liability boiled down to the issue of causation and then focused his analysis on that issue. He is to be commended for that approach; it should not be the subject of criticism. A focused analysis enhances appellate review of reasons and makes it easier for the parties to understand the rationale underlying a trial judge’s decision.
[17] With respect to the standard of care owed by Canada, as noted above, the motion judge proceeded on the basis that Canada had breached its duty to increase the intensity of the breakwater lights. However, he found that Comrie and Monteiro alone caused the accident. He reached the same conclusion regarding Ontario’s liability, finding that “the lack of increased illumination on the breakwater neither caused nor contributed to the accident.” Instead, the motion judge determined that the sole cause of the accident was that Comrie and Monteiro “were not paying attention and were going too fast so close to the breakwater at night.” There was nothing improper in the motion judge assuming a breach of the standard of care and moving on to the issue of causation.
(c) Material Contribution Test
[18] The Liability Appellants submit that the motion judge erred in law in not adopting the “material contribution to risk test” in his causation analysis. They argue that they should be able to recover on the basis of “material contribution to risk,” without showing factual “but for” causation. I would not give effect to this submission. The motion judge properly applied the “but for” test rather than the “material contribution to risk” test.
[19] Generally, the test for showing causation is the “but for” test, i.e., liability follows when the plaintiff establishes on a balance of probabilities that “but for” the defendant’s negligent act, the injury would not have occurred. This is a factual inquiry. In some cases, an injury may flow from several different negligent acts committed by different actors, each of which is a necessary or “but for” cause of the injury. In those cases, the defendants will be jointly and severally liable and the trier of fact will apportion liability according to the degree of fault of each defendant pursuant to contributory negligence legislation: Clements v. Clements, 2012 SCC 32, [2012] 2 S.C.R. 181, at paras. 8, 12.
[20] Despite the foregoing, in exceptional circumstances, where it is impossible to prove causation on the “but for” test, a plaintiff may be able to recover on the basis of a “material contribution to risk of injury,” without showing factual “but for” causation: Clements, at paras. 13, 37. This test can apply where there are multiple tortfeasors if the plaintiff can establish that but for their actions globally an injury would not have resulted, but they cannot show which of several negligent defendants actually caused the injury: Clements, at para. 46. Thus, the material contribution test is only appropriate where it is impossible for a plaintiff to prove which of several defendants caused the plaintiff’s injury using the “but for” test: Clements, at para. 40.
[21] The law in this regard was summarized by McLachlin C.J. at para. 46 of Clements:
(1) As a general rule, a plaintiff cannot succeed unless she shows as a matter of fact that she would not have suffered the loss “but for” the negligent act or acts of the defendant. A trial judge is to take a robust and pragmatic approach to determining if a plaintiff has established that the defendant’s negligence caused her loss. Scientific proof of causation is not required.
(2) Exceptionally, a plaintiff may succeed by showing that the defendant’s conduct materially contributed to risk of the plaintiff’s injury, where (a) the plaintiff has established that her loss would not have occurred “but for” the negligence of two or more tortfeasors, each possibly in fact responsible for the loss; and (b) the plaintiff, through no fault of her own, is unable to show that any one of the possible tortfeasors in fact was the necessary or “but for” cause of her injury, because each can point to one another as the possible “but for” cause of the injury, defeating a finding of causation on a balance of probabilities against anyone.
[22] Elimination of proof of causation as an element of negligence is a radical step that goes against the fundamental principle that a defendant in an action in negligence is a wrongdoer only in respect of the damage which he actually causes to the plaintiff. For that reason, “recourse to a material contribution to risk approach is necessarily rare, and justified only where it is required by fairness and conforms to the principles that ground recovery in tort”: Clements, at para. 16.
[23] In the case at bar, it was not impossible for the Liability Appellants to establish “but for” causation. They did so with respect to Comrie and Monteiro. The problem was that they failed to meet their onus of establishing the essential prerequisite for the adoption of the “material contribution to risk” test, i.e., the existence of multiple potentially contributing tortfeasors. In other words, the Liability Appellants failed to establish that they are in a correlative relationship of doer and sufferer of the same harm with the Government Respondents. Considerations of fairness were not engaged because there is nothing inherently unfair in finding that the actions of Comrie and Monteiro were the only causes of the accident and that the actions of the Government Respondents were not a cause. Thus, the “material contribution to risk” test was not in play and the motion judge made no error in utilizing the “but for” test.
(d) Sodium Vapour Lights
[24] The basis of Leamington’s alleged liability is different from Canada and Ontario. The gravamen of the complaint is that the sodium vapour lights interfered with the visibility of the yellow light on the west end of the breakwater. Two submissions are made in this regard.
[25] The first is that Leamington breached its regulatory duties not to interfere with navigation on Lake Erie by installing the sodium vapour lights without the permission of the federal government in contravention of s. 5(1) of the NWPA. The motion judge concluded that the legislation does not apply to the Marina’s sodium vapour lights, as they were on shore, and, per s. 5(1), the Act only covers structures “built or placed in, on, over, under, through or across navigable water.” I see no basis to interfere with this straightforward application of the terms of the statute. In any event, as discussed below, I accept the motion judge’s conclusion that the sodium vapour lights played no role in the accident.
[26] The second submission is that the sodium vapour lights decreased the visibility of the yellow light and were, therefore, a cause of the collision. This allegation was supported by a report prepared by two Navigable Waters Protection Program officers who concluded that the back scatter of the sodium lights adversely impacted the visibility of the yellow light. As discussed above, the Coast Guard Report made the same finding. Given this evidence, the direction of the vessel at the time of impact became critical.
[27] The motion judge reviewed the evidence regarding the direction the boat was travelling in detail. He found that “the direction of travel of the vessel at the time of impact on the breakwater was east-southeast.” That finding was “based on all the evidence I accept, taking specific note of the physical evidence at the scene including the positioning of the ‘V’ rock formation [where the boat crashed], the location of Feltham and Algra in the water and climbing on the rocks, and the evidence of Feltham regarding the circling and the direction of travel.” The only evidence suggesting that the boat was travelling north at the time of the impact came from Algra. The motion judge explained why he did not accept her evidence, noting, among other things, that this evidence was inconsistent with the damages sustained by the boat and the inconsistencies in Algra’s testimony regarding the identification of the vessel’s driver on impact.
[28] Having reached that conclusion regarding the direction of travel, the motion judge found that the sodium vapour lights would be off to the left of the vessel. This finding was supported by the evidence of Captain Trombley who stated in her affidavit that “any vessel travelling in an easterly or south-easterly direction towards the narrow far western end of the outer breakwater would have had no difficulty observing the [west end] light as the Leamington Harbour/Marina lights would not have been in the background.”
[29] Based on the foregoing, the motion judge made no error in finding that the sodium vapour lights were not a factor in the accident. He properly established the direction of the vessel based on expert evidence and then relied on the evidence of Captain Trombley, Ashby, and Feltham to determine that the sodium vapour lights would not have impeded the visibility of the yellow light. This was a logical and evidence-based chain of reasoning. There is no basis for appellate interference.
(e) Improper Look Out
[30] The Liability Appellants assert that the motion judge’s causation analysis is flawed because he found that Comrie and Monteiro were not keeping a proper look out. They submit that the motion judge’s analysis is premised on the improper inference that the yellow light was clearly and plainly visible. As this finding was central to his causation conclusion that Comrie and Monteiro were the sole causes of the accident, the Liability Appellants submit that the summary judgment ruling cannot stand, and this court should order a trial on liability issues. I would not give effect to this argument.
[31] To consider this ground of appeal, it is essential to review what the motion judge decided on causation. The critical part of his causation analysis regarding Canada is as follows:
According to the plaintiffs, Canada breached its duty by its failure to act, namely to increase the intensity of the breakwater lights, the aids to navigation.
I am not considering a hypothetical case of a non-resident mariner approaching the harbour from the south and striking the breakwater. I am dealing with these particular mariners on this particular night.
This is not a case exhibiting the need to alert mariners of the presence of the breakwater. These mariners – Comrie and Monteiro – knew of the immediate presence of the breakwater both from their extended boating experience in Leamington and from their intentional circling of the breakwater multiple times sufficiently close so Algra could see the rocks. The breakwater and the lights on the breakwater were visible and there to be seen by Comrie and Monteiro. I find that by circling the breakwater multiple times, Comrie and Monteiro knew they were circling the breakwater.
This is not a case raising a question of the visibility of the two lights on the breakwater either because of the direction of travel – toward Leamington’s sodium vapour lights – or because of the distance from the breakwater. Comrie and Monteiro were not approaching the breakwater from a distance out in the lake; they were circling it close enough for a passenger to see its rocks. The lights were operational and clearly visible to Comrie and Monteiro. And the direction of travel was from the east/southeast eliminating any interference by the marina’s lights. The lights and the breakwater were there to be seen by Comrie and Monteiro, if they were looking.
Accepting that Canada had a duty to increase the intensity of the breakwater lights and assuming that Canada’s failure to do so was a breach of that duty, from what evidence do the plaintiffs establish causation that “but for” this failure, the accident would not have occurred?
Considering the record evidence before me, in my view, the plaintiffs have not shown on a balance of probabilities that “but for” this failure to increase the intensity of the navigation lights on the breakwater, the accident would not have occurred. Simply put, the lack of increased light intensity of the breakwater aids to navigation neither caused nor contributed to the accident in this case. Comrie and Monteiro knew the breakwater was there. For reasons unknown, they just were not paying attention and were going too fast so close to the breakwater at night. [Footnote omitted.]
[32] The issue is whether these findings were open to the motion judge, or whether they were unsupported by the evidence, as suggested by the Liability Appellants. In my view, the motion judge’s findings are well entrenched in the evidence and supported by common sense inferences. The motion judge closely examined the factual record and grounded his causation analysis in the specific facts as established in the record. This was a case where the evidence established:
- The vessel was travelling in an east or south-east direction.
- The yellow light on the west end of the breakwater was operating and visible from the boat.
- The sodium vapour lights were off to the left of the vessel and would have had no impact on the visibility of the yellow light.
- The vessel was travelling at a significant speed.
- Comrie was over the legal alcohol limit and had been smoking marijuana that evening.
- The vessel was doing laps around the breakwater, and on its final lap the accident occurred.
- The vessel took no evasive action and drove right into the breakwater.
[33] From these facts, the motion judge properly concluded that Comrie and Monteiro were aware of the presence of the breakwater. Consequently, the intensity of the light was not a factor nor was the presence of the sodium vapour lights. Instead, he found that Comrie and Monteiro did not keep a proper look out. The motion judge found that the vessel circled the breakwater but, “at least at the time of the collision” both Comrie and Monteiro “lost sight of the breakwater and its west-end light.” This was an available and sensible inference. It was based in the evidence and common sense. Given that the vessel had successfully completed several laps, Comrie and Monteiro must have known the location of the breakwater and the lights must have been visible. Why, then, did they drive straight into the breakwater? The motion judge found that this was because they were not keeping a proper look out at the time of the collision. That is a logical inference. He also relied on this unimpeachable chain of reasoning in finding that Ontario also was not liable.
(f) Conclusion on the Liability Appeal
[34] The motion judge did a commendable job in focusing on the issue of causation, thoroughly reviewing the evidence, and then logically applying his findings in his causation analysis. The grounds of appeal do not raise any concerns about his liability findings regarding the Government Respondents. Consequently, I would dismiss the Liability Appeal.
(ii) MLA Appeal
[35] The issue on this appeal is a narrow one: Did the motion judge err in law when he found that the cap imposed in s. 29 of the MLA does not include claims for costs and interest? Section 29 of the MLA that was in force at the time states:
The maximum liability for maritime claims that arise on any distinct occasion involving a ship of less than 300 gross tonnage, other than claims referred to in section 28, is
(a) $1,000,000 in respect of claims for loss of life or personal injury; and
(b) $500,000 in respect of any other claims.
[36] In his reasons, the motion judge cited the often quoted statement of Elmer Driedger in Construction of Statutes, 2nd ed. (Toronto: Butterworths, 1983), at p. 87, “Today there is only one principle or approach, namely, the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament.” He went on to consider the words of the statute in the context of the particular provision:
The words are, “The maximum liability for maritime claims ... is ... $1,000,000 in respect of claims for loss of life or personal injury ….”
These simple words must be read together and not interpreted by focusing only on one clause or on another. The maritime claims specifically are identified: claims for loss of life or personal injury. Thus, the “maximum liability” statutory cap is for claims for loss of life or personal injury.
In my view, a claim for costs and a claim for prejudgment interest each serve a different purpose and seek to protect a different interest than a claim for loss of life or personal injury.
[37] The motion judge then considered jurisprudence regarding costs and prejudgment interest, observing that the role of costs is to ensure that litigation is conducted in an efficient, fair, and just manner, while the role of prejudgment interest is to account for the delay between injury and judgment. He concluded his analysis as follows:
In my view, the contextual reading of the words of the statute together with an understanding of the function and purposes of costs and interest resolve the interpretation issue. By their very nature and function, claims for costs and interest clearly are not claims for loss of life or personal injury. As I have stated, they each have a different objective and serve to protect different interests. As such, inclusion of costs and interest into the liability limitation of s.29 (a) of the MLA is an incorrect interpretation of it.
[38] The motion judge’s analysis was correct. The legislation was silent on whether costs or interest were included under the cap. Parliament was explicit that the cap applied only to “claims for loss of life or personal injury.” The ordinary meaning of a legislative provision is deemed to be the meaning intended by the legislature, unless compelling reasons exist to justify a departure from the ordinary meaning: Ruth Sullivan, The Construction of Statutes, 7th ed. (Toronto: LexisNexis Canada, 2023), at § 3.01; Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27, at para. 21. Claims for interest and costs are of a different nature than claims for loss of life or personal injury. If Parliament wanted to restrict those claims, it could have done so with explicit language. Such a restriction would be extraordinary because it would interfere with the ability of courts – grounded in provincial legislation – to control the litigation process through two of their most effective tools.
[39] Costs and, to a lesser extent, prejudgment interest, are discretionary tools, which can be used by trial judges to ensure timely and substantive access to justice. To accede to the interpretation of s. 29 of the MLA argued by the Estates would inhibit trial judges from controlling the process in their courts. For example, the ability to sanction a party for deliberately delaying a proceeding by ordering a significant costs award would effectively be lost because the sum awarded would simply be applied to the cap. This could also have a chilling effect on potential plaintiffs considering the advisability of launching a claim. If most of a potential recovery will be eaten up by costs, there is little incentive to commence an action. This means that a fundamental policy goal of the tort law – punishing tortfeasors for their wrongful conduct and preventing a repeat of such conduct in the future – would be defeated.
[40] This case serves as a good example of the danger in stripping courts of their longstanding powers. The accident occurred over 12 years ago. To date, only liability has been determined and the issue of damages remains. As will be discussed below, on the motions for summary judgment, the assessed costs were $400,000 to Algra and $306,849.23 to Feltham. I am not being critical of any party regarding the pace of these proceedings or the legal fees incurred. My point is only that in significant, multi-party litigation, legal costs can accelerate quickly. If costs are included in a legislated cap, then defendants and their insurers are effectively playing with “house money” and have less incentive to act reasonably.
[41] If it were the intention of Parliament to fundamentally impact the ability of trial judges to control the process in their courts, one would expect that it would have used clear language to do so. It did not. I am not prepared to read in such a dubious policy choice. If defendants and their insurers want to achieve a measure of certainty about their exposure and keep costs down, they should focus on resolving cases where they can and litigating cases in a responsible and cost-effective manner.
[42] Another related submission made by the Estates in their written materials, which was not vigorously pressed in oral argument, was that the motion judge’s reasons are insufficient to permit appellate review. I disagree. The motion judge’s reasons are logical, insightful, and correct. They admit to appellate review and cannot, based on the relevant jurisprudence, be considered insufficient.
[43] A final point is worth making on this issue. While judges have an obligation to produce sufficient reasons, lawyers have a synchronous obligation to review reasons sensibly and fairly and to assert the insufficiency of reasons ground of appeal only where it has some prospect of success: Gendron v. Doug C. Thompson Ltd. (Thompson Fuels), 2019 ONCA 293, at para. 95, leave to appeal refused [2019] S.C.C.A. No. 228.
(iii) Leave to Appeal Costs Awards
[44] In separate reasons on costs, the motion judge reviewed the law of costs and the claims made by the parties. He then quantified the costs to be awarded for the summary judgment motions. The motion judge also determined that this was an appropriate case to make a Sanderson Order. Such an order may be made in multiple defendant cases in which the plaintiff succeeds against some, but not all, of the defendants. In certain circumstances, a court may order the unsuccessful defendant to pay not only the plaintiff’s costs but also the costs of the successful defendant(s). The motion judge ordered as follows:
- The Comrie Estate shall pay Algra her costs of $400,000 (all inclusive) on the summary judgment motions;
- The Comrie Estate and the Monteiro Estate shall jointly and severally pay Feltham her costs of $306,849.23 (all inclusive) on the summary judgment motions;
- The Comrie Estate and the Monteiro Estate shall jointly and severally pay Canada its costs of $266,247.02 (all inclusive) on the summary judgment motions;
- The Comrie Estate and the Monteiro Estate shall jointly and severally pay Ontario its costs of $210,830.12 (all inclusive) on the summary judgment motions; and
- The Comrie Estate and the Monteiro Estate shall jointly and severally pay Leamington its costs of $344,847.03 (all inclusive) on the summary judgment motions.
[45] Regarding the quantum of costs, the Estates’ position is that the costs award was not “fair and reasonable” and was not proportional with the $1,000,000 cap under the MLA. They argue that the motion judge should have scrutinized the costs sought by counsel and applied the principle of proportionality. Relying on Berry v. Scotia Capital Inc., 2010 ONSC 1948, the Estates submit that the motion judge should have taken a “step back” from the cost grid calculation to determine whether the award was fair and reasonable. They note that the Estates’ fees were much less than the $400,000 and $306,849.23 ordered for the Algra and Feltham plaintiffs. In addition, the Estates challenged the reasonableness of the Government Respondents’ costs. Overall, the Estates submit that the motion judge missed several fundamental principles and failed to consider a reasonable amount they could be expected to pay.
[46] With regard to the Sanderson Order, the Estates submit that such an order is only appropriate in rare circumstances. They assert that where an unsuccessful defendant has done nothing to cause the joinder of the successful defendant, a Sanderson Order is an error in principle. Here, the Estates contend that the motion judge made the Sanderson Order despite finding that they did not contribute to the Government Respondents being added as defendants. Further, the Estates argue that the Sanderson Order appears to be based on the motion judge’s belief that (1) it was reasonable for the plaintiffs to have sued the Government Respondents in the first place and (2) the Estates engaged in blame shifting.
[47] Finally, the Comrie Estate argues that the motion judge made a clear error in finding that it alone is responsible for the costs awarded to Algra. It submits that, because it cross-claimed against the Monteiro Estate, both estates should be jointly and severally liable for those costs.
[48] Leave to appeal a costs order will not be granted save for in obvious cases where the party seeking leave convinces the court that there are “strong grounds upon which the appellate court could find that the judge erred in exercising his discretion”: Brad-Jay Investments Limited v. Village Developments Limited, at para. 21, leave to appeal refused, [2007] S.C.C.A. No. 92; More v. 1362279 Ontario Ltd. (Seiko Homes), 2023 ONCA 527, at para. 32. This test imposes a high threshold because appellate courts recognize that fixing costs is highly discretionary and that trial judges are best positioned to understand the dynamics of a case and to render a costs decision that is just and reflective of what actually happened on the ground in a case.
[49] Regarding the fixing of costs in the instant case, I am not satisfied that the motion judge made any error. He carefully canvassed the law and correctly applied the relevant legal principles in determining the quantum of costs. The proposed grounds of appeal amount to a dual submission that the costs are too high and that the motion judge erred in his interpretation of what happened in the litigation. I see no error. The Estates disputed liability for ten years and should not be surprised that their position would result in the accrual of substantial legal fees. Further, while they may have a different perspective regarding what happened in the litigation, this is not an area where this court is inclined to engage or should engage given the high threshold to grant leave to appeal costs. The motion judge applied the factors under r. 57.01(1) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, and reached a reasonable conclusion. I would deny leave to appeal the quantum of the costs.
[50] I also see no error in the motion judge’s analysis regarding the Sanderson Order. He properly applied the two-step test as set out in Moore v. Wienecke, 2008 ONCA 162, 90 O.R. (3d) 463. On step one, he found that it was reasonable for the plaintiffs in this case to sue multiple defendants. He then considered the relevant factors in step two, including that the Estates engaged in blame shifting to the Government Respondents and that the actions against the successful defendants and the unsuccessful defendants were not independent of each other. I would deny leave to appeal.
[51] With respect to the award of costs in favour of Algra, counsel for the Monteiro Estate concedes that the motion judge made an obvious error in finding that only the Comrie Estate was liable given that it had cross-claimed against the Monteiro Estate. This was a sensible concession. This error meets the high standard required to warrant appellate intervention. I would grant leave to appeal on this issue and allow the appeal.
C. DISPOSITION
[52] I would dismiss the Liability Appeal and the MLA Appeal. I would also deny leave to appeal on the Estates’ Costs Cross-Appeal, except for on the issue raised by the Comrie Estate regarding the liability for Algra’s costs. On that issue, I would grant leave to appeal and order that the Estates are jointly and severally liable for Algra’s costs of the summary judgment motions, which have been fixed at $400,000, all-inclusive.
[53] With regard to the costs of the appeals, I would order as follows:
- On the Liability Appeal: Costs of the Liability Appeal are payable jointly and severally by the Liability Appellants to the Government Respondents. Each of the Government Respondents is awarded costs in the all-inclusive sum of $10,000.
- On the MLA Appeal: Costs of the MLA appeal will be payable jointly and severally by the Estates to Feltham and Algra. Feltham and Algra are each awarded costs in the all-inclusive sum of $10,000.
- On the Estates’ Costs Cross-Appeal: The Comrie Estate is awarded costs in the all-inclusive sum of $2,000, payable by the Monteiro Estate.
Released: December 5, 2023 “C.W.H.” “C.W. Hourigan J.A.” “I agree. Roberts J.A.” “I agree. Coroza J.A.”
[1] Section 29 of the MLA was changed on June 22, 2023, to limit liability to $1,500,000. This section now reads:
29 The maximum liability for maritime claims that arise on any distinct occasion involving a ship of less than 300 gross tonnage, other than claims referred to in section 28, is
(a) $1,500,000 in respect of claims for loss of life or personal injury; and
(b) $750,000 in respect of any other claims.
