Court File and Parties

CITATION: Henry v. Harvey, 2015 ONSC 2135

DIVISIONAL COURT FILE NO.: 36/15

COURT FILE NO.: CV-09-379902-0000

DATE: 20150407

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: JOAN HENRY and PAUL NEWMAN Plaintiffs

AND:

gary c. harvey, the co-operators, echelon general insurance company, jane doe, john doe, and ROSELEEN M. HENRY Defendants

BEFORE: Lederer J.

COUNSEL: Jane Conte, for the Plaintiffs

James B. Davidson & Joel Cormier, for the Defendant/(moving party), Echelon General Insurance Company

HEARD at Toronto: In Writing

ENDORSEMENT

[1] This is a motion for leave to appeal the refusal to grant summary judgment.

[2] The plaintiff says the accident was caused by an unidentified motor vehicle. She is suing her own insurer, the defendant, Echelon General Insurance Company. The insurer moved for summary judgment. It says there was no unidentified driver. It says there are third party witnesses and circumstances which make the presence of another vehicle impossible.

[3] Madam Justice Frank dismissed the application. When she considered the evidence “in context”, she found she was unable to “…evaluate the credibility of the deponents on the written record”. Consistent with the approach outlined in Hryniak v. Mauldin[^1], Madam Justice Frank went on to consider whether the powers the court now enjoys under rules 22.04(2.1) and (2.2) could be employed to avoid the need for a trial. She concluded that: “None of the options available to me in the exercise of my discretion would assist.” Consistent with Baywood Homes Partnership v. Haditaghi[^2], she found that this was “…not an appropriate case for a mini-trial as it is the entire issue of liability that must be left for trial rather than one aspect amongst a number.” In the words of the Court of Appeal, in Baywood Homes Partnership, Madam Justice Frank was unprepared to “decontextualize” the consideration of liability.

[4] The test on a motion for leave to appeal is well-known and well-understood. Rule 62.02(4) of the Rules of Civil Procedure provides that leave to appeal will be granted where there is a conflicting decision or where there is good reason to doubt the correctness of the order being questioned. Where the former is relied on, the judge must go on to decide whether it is desirable for leave to be granted. If the latter is the basis for the motion, a determination must be made that the proposed appeal involves matters of such importance that, in the opinion of the judge, leave should be granted.

[5] In this case, neither test is satisfied. As Madam Justice Frank noted, this is a matter of discretion. As the motion judge, she is owed considerable deference. There is no error in principle and no reason to doubt the correctness of what she has done. There is no conflicting case. This case was decided on its particular facts, in the particular circumstances. If I were required to, I would find that it is not desirable to, nor would I form the opinion that it had the importance to, warrant granting leave to appeal.

[6] Finally, I should note that Madam Justice Frank was aware of the difficulty her decision might cause. It compelled the insurance company to take part in a trial in which it may only play a small part. Unhappily, there are times when our desire to do justice requires this kind of participation. As noted, in Hryniak v. Mauldin and referred to by Madam Justice Frank, the use of the powers granted to the court on a motion for summary judgment cannot be at the expense of a fair and just result.[^3] It may be, as Madam Justice Frank suggested, that there are other ways of resolving this problem in this case.

[7] The motion for leave to appeal is dismissed.

[8] There were no submissions as to costs. There is no reason why they should not follow the event. This was a motion in writing. The parties were not required to appear. The work done for the motion before Madam Justice Frank suggests that parties would not have had to do much more than prepare the written material. Costs are awarded to the plaintiff in the amount of $750.00.

LEDERER J.

Date: 20150407

[^1]: 2014 SCC 7, 2014 S.C.C. 7. [^2]: 2014 ONCA 450, 120 O.R. (3d) 438. [^3]: Hryniak v. Mauldin, supra, (fn. 1), at para. 66.