Court File and Parties
COURT FILE NO.: 469/08
DATE: 20081127
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
B E T W E E N:
DANIEL KIM, CAROL KIM and HAE SOOK KIM Plaintiffs
- and -
PHOUNGERN THAMMAVONG, TRACY CHEUNG, THOMAS CHEUNG and ROSALINE CHEUNG Defendants
Justin S. Linden and Wendy Breuer, for the Plaintiffs
David T. S. Wong, for the Defendants
HEARD at Toronto: November 27, 2008
Oral Reasons for Judgment
JANET WILSON J.:
[1] The defendant, Tracy Cheung, brings a motion for leave to appeal from the decision of Justice Perell dated December 4, 2007. Justice Perell granted the rule 20 motion brought by Tracy’s parents and dismissed the plaintiff’s action against them. He refused to strike the claim against Tracy, and concluded that the issues of Tracy’s potential liability should be determined at a trial.
[2] Tracy is the twenty-year old daughter of Mr. and Mrs. Cheung. While they were away Tracy had a party in their home. Alcohol and drugs were present and several people were inebriated. Mr. Kim was injured in an altercation with another guest.
[3] Leave is granted nunc pro tunc to allow Ms. Cheung to bring this motion. The motion is dismissed.
[4] Counsel relies on rule 62.02(4)(b) of the Rules of Civil Procedure. He suggests that there is good reason to doubt the correctness of the decision of Perell J. and that the matters in this appeal are of such importance they justify a review by the Divisional Court.
[5] Perell J. concludes at paragraph 25 of his reasons:
In the case at bar, in terms of foreseeability and proximity, the relationship between the defendant Tracy and the plaintiff Mr. Kim is somewhat closer than the relationship between the parties in Childs, because Mr. Kim was a guest at the party and not a third party passenger in a car some distance away. In my opinion, whether there is “something more” in the circumstances of the party hosted by Tracy that led to the injuries suffered by Mr. Kim is a genuine issue for trial. Given the jurisdiction associated with Rule 20, it is for a trial judge to determine whether that “something more” engendered a duty of care and whether there may be policy reasons to negate any duty of care. Tracy’s role leading to the encounter between Mr. Kim and Mr. Thammavong are genuine issues for trial.
[6] Counsel argues that Perell J. has misapplied the governing test in the decision of the Supreme Court of Canada in Childs v. Desormeaux 2006 SCC 18, [2006] 1 S.C.R. 643 and in particular paragraphs 31, 33, 35, 42 and 44.
[7] I disagree.
[8] I agree that there is some evidence that may support a finding of responsibility on the part of Ms. Cheung. The context and details, as well as the legal ruling need to be determined in a trial. The refusal to dismiss the motion, obviously is not in any way determinative of the issues at trial. Simply put, there are genuine issues for trial and it is not appropriate to strike the action at this stage.
[9] As the defence has not met the threshold test in the first part of s.62.02(b), it is not necessary to consider the issue of public importance.
[10] Counsel made submissions as to costs. In my view, a fair award payable by the losing party would be costs fixed in the amount of $2,500, payable forthwith by the defendant Ms. Cheung to the plaintiffs.
JANET WILSON J.
Date of Reasons for Judgment: November 27, 2008
Date of Release: November 28, 2008
COURT FILE NO.: 469/08
DATE: 20081127
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
B E T W E E N:
DANIEL KIM, CAROL KIM and HAE SOOK KIM Plaintiffs
- and -
PHOUNGERN THAMMAVONG, TRACY CHEUNG, THOMAS CHEUNG and ROSALINE CHEUNG Defendants
ORAL REASONS FOR JUDGMENT
JANET WILSON J.
Date of Reasons for Judgment: November 27, 2008
Date of Release: November 28, 2008