ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
B E T W E E N:
JACOB WESLEY EADE and JESSE ALLAN EADE, MINORS UNDER THE AGE OF 18 YEARS BY THEIR LITIGATION GUARDIAN, SHAWN W. EADE, THE SAID SHAWN EADE and TANAYA EADE
Plaintiffs
(Respondents)
- and -
THE ESTATE OF ELLEN BROWNE, DECEASED, LINDA BROWNE, and RUTH INA PICCITTO, ESTATE TRUSTEE OF THE ESTATE OF JOHN PICCITTO, DECEASED
Defendants
(The Estate of Ellen Brown, deceased,
and Linda Browne, Appellants)
Steve Sloan, for the Plaintiffs (Respondents)
Robert M. Ben, for the Appellants, The Estate of Ellen Browne, deceased and Linda Browne
Nicole C. Culp, for the Defendant (Respondent), Ruth Ina Piccitto, Estate Trustee of the Estate of John Piccitto, Deceased
HEARD at Toronto: November 19, 2008
bellamy J.: (Orally)
1This is an appeal by the defendants, the estate of Ellen Browne, deceased and Linda Browne to set aside the decision of Master Dash where he granted a motion for summary judgment in favour of the defendants, Ruth Ina Piccitto, deceased, and the Estate Trustee of the Estate of John Piccitto.
2Appeals from masters’ decisions to the Divisional Court are to be reviewed on the same standard as judges’ decisions: Zeitoun v. Economical Insurance Group 2008 20996 (ON SCDC), [2008] O.J. No. 1771, 292 (D.L.R.) (4th) 313.
3Housen v. Nikolaisen (2002), 2002 SCC 33, 211 D.L.R. (4th) 577 is the Supreme Court of Canada’s most recent decision with respect to the standard of review from a judge’s decision. There, the Court held that the standard of review of a judge’s findings on a question of law is correctness, while a judge’s findings of fact can be reversed only if the judge’s decision evidences a “palpable and overriding error”. This statement has been interpreted as requiring a decision to be “clearly wrong” in the sense of being “not reasonably supported by the evidence”: H.L. v. Canada (Attorney General), 2005 SCC 25, [2005] 1 S.C.R. 401 at para. 110.
4This accident happened in March 2001. Since February 2005, Master Dash has been case-managing this file. He was well aware of the facts of this case. In this summary judgment motion, he was entitled to assume that the record contained all the evidence that would have been available at trial. That evidence, he found, was seriously wanting. Based on my review of his decision and the only evidence that was before him, I cannot conclude that he made a palpable and overriding error on the facts before him, nor do I find that he reversed the evidentiary burden, as counsel suggests. The evidence (or lack of evidence) garnered over the previous seven years reasonably supports his conclusion that the summary judgment motion should have been granted. I conclude that he was correct in his application of the law and he appropriately distinguished Morrow v. McNeil, [1957] O.J. No. 539.
5I will just say for the sake of completeness that the plaintiffs had not opposed the motion for summary judgment and in fact supported an order that summary judgment be ordered, but had asked that no costs be awarded against them because of the special circumstances of that case. The plaintiff took no position on this appeal.
COSTS
6Costs payable to the defendants Piccitto in the amount of $7,000.00, inclusive of GST and disbursements.
BELLAMY J.
Date of Reasons for Judgment: November 19, 2008
Date of Release: November 24, 2008
COURT FILE NO.: 216/08
DATE: 20081119
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
B E T W E E N:
JACOB WESLEY EADE and JESSE ALLAN EADE, MINORS UNDER THE AGE OF 18 YEARS BY THEIR LITIGATION GUARDIAN, SHAWN W. EADE, THE SAID SHAWN EADE and TANAYA EADE
Plaintiffs
(Respondents)
- and -
THE ESTATE OF ELLEN BROWNE, DECEASED, LINDA BROWNE, and RUTH INA PICCITTO, ESTATE TRUSTEE OF THE ESTATE OF JOHN PICCITTO, DECEASED
Defendants
(The Estate of Ellen Brown, deceased,
and Linda Browne, Appellants)
ORAL REASONS FOR JUDGMENT
BELLAMY J.
Date of Reasons for Judgment: November 19, 2008
Date of Release: November 24, 2008