COURT FILE NO.: 328/00

DATE: 20021104

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

then, coo, e. macdonald jj.

B E T W E E N:

HARLEY WIDEMAN

Plaintiff

• and -

ELI SEFF

Defendant

Jennifer J. Earle, for the Plaintiff

Gregory Gryguc, for the Defendant

HEARD: November 4, 2002

coo J.: (Orally)

1The defendant appeals from the judgment granted May 5, 2000 after a jury trial.

2It is complained that the jury misapprehended the facts. There is nothing in the record to support that submission and there was a substantial body of evidence to support the jury's answers to questions put to them.

3In our view the provisions of the Fault Determination Rules in Regulation 668 play no part directly or by analogy in this case.

4At the heart of the appeal is the allegation that the learned trial judge erred in his charge to the jury on the only issue before him, that is liability. There was no objection by very experienced counsel to the charge at trial and while that is not a bar to submissions in this forum, it stands as a clear sign that the points now raised were not considered then to be of importance; although there is the point to be made that there had been discussion at the beginning of the trial about some of the issues.

5This is a Rule 76 motor vehicle accident case. The plaintiff alleges that the defendant's car changed lanes suddenly in front of the car immediately ahead of the plaintiff and that the resulting collision between those two cars produced the result that the plaintiff was unable to avoid a collision with the car ahead of him causing damage to his car. The statement of claim sets forth this claim. The statement of defence did not allege negligence against the plaintiff but alleged that the driver of the car immediately ahead of the plaintiff was negligent in colliding with the stopped defendant's car.

6The defendant issued a third party claim, presumably pursuant to Rule 29.01(b) against the owner and driver of this car claiming damages for personal injury and the cost of repairs to his car. There was no claim for contribution or indemnity with regard to the plaintiff's claim and this was not a third party claim within s.5 of the Negligence Act. Both third parties counterclaimed only against the defendant in the third party proceeding for the damage done to their car in the collision.

7The third party claim and counterclaim were settled and on January 18, 2000 were dismissed on consent. The appellant takes the position, despite these circumstances, that he was entitled at trial to rely on allegations of negligence made against the third parties in an attempt to reduce his liability to the plaintiff. He was not, by reason of such authorities as Martin et al. v. Listowel Memorial Hospital et al., 2000 16947 (ON CA), [2000] 51 O.R. (3d) 384.

8The defendant cannot launch a third party proceeding in which no claim for contribution with regard to the plaintiff's claim is even asserted, agree to the settlement of that proceeding, have the claim against and by the third parties dismissed, make no claim in any proceeding that the plaintiff was in any way at fault, and then seek to have his claim reduced or eliminated by a finding that the third parties bore all or some responsibility for the accident.

9It is true that all the pleadings in this action appear to have come from a computer but the pleadings must continue to have some meaning, although counsel in argument this morning did, as I understood him, concede that there had been some errors made.

10It was sought to raise here, for the first time, an issue about the failure of the trial judge to deal with the concept of intervening cause. All other matters apart, the judge dealt adequately with the causation issue with respect to any negligence found on the part of the defendant.

11The appeal will therefore be dismissed.

THEN J.

12The appeal book will read as follows: "This appeal is dismissed for oral reasons for the Court delivered by Mr. Justice Coo. Costs should follow the event on a partial indemnity basis. Counsel for the appellant has suggested that $5,000 is appropriate. In our view, given the nature of the issues raised and the effort required to adequately respond to those issues, we are not prepared to award costs in the amount of $10,000 as urged by the respondent. Costs will be fixed in the amount of $5,000, all inclusive, payable forthwith."

THEN J.

COO J.

E. MACDONALD J.

Date of Reasons for Judgment: November 4, 2002

Date of Release: November 7, 2002

COURT FILE NO.: 328/00

DATE: 20021104

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

then, coo, e. macdonald jj.