Forestall et al. v. Carroll et al.

[Indexed as: Forestall v. Carroll]

Ontario Reports

Ontario Superior Court of Justice,

Divisional Court,

Dambrot, Stewart and Thorburn JJ.

April 27, 2016

131 O.R. (3d) 267 | 2016 ONSC 2385

Case Summary

Civil procedure — Summary judgment — Evidence — Defendant C's defence hinging on disproving defendant E's claim that she had consent to use C's car on day of accident — Transcript of E's examination for discovery admissible under rule 39.04(1) of Rules on C's motion for summary judgment — Motion judge not erring in dismissing motion as issue of consent was not capable of being determined without trial even if transcript of E's examination for discovery was taken into account — Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rule 39.04(1).

C's estate appealed an order dismissing C's motion for summary judgment. At issue was whether the motion judge should have admitted and considered [page268] the transcript of the examination for discovery of E, whether the motion judge should have clearly ruled that C's discovery transcript could be admitted and considered, and whether the motion judge erred in granting the summary judgment motion.

Held, the appeal should be dismissed.

The motion judge's decision was entitled to deference and should only be overturned if there was an overriding and palpable error. C's defence hinged on disproving E's claim that she had C's consent to use C's car on the day of the accident. The transcript of E's examination for discovery was admissible under rule 39.04(1) of the Rules of Civil Procedure. Rule 39.04(1) provides that a party may not use the party's own discovery transcript during the proceeding. Rule 31.11(6)(a) allows for a narrow exception when a party is deceased, but only during trials. Although the motion judge did not explicitly rule on the admissibility of C's transcript evidence, it would not have been admissible. Even if the transcript of E's examination for discovery was taken into account, the important issue of express or implied consent was not capable of being determined on the record in this case without a trial.

Cases referred to

Fernandes v. Araujo (2015), 127 O.R. (3d) 115, [2015] O.J. No. 4202, 2015 ONCA 571, 21 C.C.L.T. (4th) 86, [2015] I.L.R. I-5782, 81 M.V.R. (6th) 1, 387 D.L.R. (4th) 649, 337 O.A.C. 46, 53 C.C.L.I. (5th) 42, 256 A.C.W.S. (3d) 416; Forestall v. Carroll, [2015] O.J. No. 2154, 2015 ONSC 2732, [2015] I.L.R. I-5735, 49 C.C.L.I. (5th) 289, 253 A.C.W.S. (3d) 808 (S.C.J.) [Leave to appeal granted [2015] O.J. No. 4873, 2015 ONSC 5883, [2015] I.L.R. I-5812 (Div. Ct.)]; Hryniak v. Mauldin, [2014] 1 S.C.R. 87, [2014] S.C.J. No. 7, 2014 SCC 7, 314 O.A.C. 1, 453 N.R. 51, 2014EXP-319, J.E. 2014-162, EYB 2014-231951, 95 E.T.R. (3d) 1, 12 C.C.E.L. (4th) 1, 27 C.L.R. (4th) 1, 21 B.L.R. (5th) 248, 46 C.P.C. (7th) 217, 37 R.P.R. (5th) 1, 366 D.L.R. (4th) 641, 2014EXP-319, J.E. 2014-162

Statutes referred to

Courts of Justice Act, R.S.O. 1990, c. C.43, s. 19(1)(b)

Rules and regulations referred to

Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rules 20.04, (2.2), 39.04(1), (2), 31.11(6)(a), 62.02

APPEAL from an order dismissing a motion for summary judgment.

Kaitlyn MacDonell, for plaintiffs.

Nicholas Lou Mester, for defendant Celina Carroll.

John Friendly, for defendant estate of Elizabeth Carroll.

Martin Forget, for defendant TD Home and Auto Insurance Company.

The judgment of the court was delivered by

STEWART J. (orally): — [page269]

Nature of the Appeal

[1] The appellant, the estate of Celina Carroll, appeals an interlocutory order of Diamond J. dated April 28, 2015 [ [2015] O.J. No. 2154, 2015 ONSC 2732 (S.C.J.)]. In his order, Diamond J. dismissed the appellant's motion for summary judgment, a motion that the respondent, TD Home and Auto Insurance Company, had opposed.

Jurisdiction

[2] Pursuant to s. 19(1)(b) of the Courts of Justice Act, R.S.O. 1990, c. C.43, an appeal lies to this court from an interlocutory order of a judge of the Superior Court of Justice, with leave as provided in rule 62.02 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. Leave to appeal was granted on September 23, 2015 [[2015] O.J. No. 4873, 2015 ONSC 5883 (Div. Ct.)].

Standard of Review

[3] The appellant claims that the decision must be reviewed on the standard of correctness. While discretionary decisions often attract deference, the motion judge's conclusions about the transcript evidence, as well as his decision not to use the expanded summary judgment powers under rule 20.04, are characterized by the appellant as legal questions that do not attract deference.

[4] The respondent argues that the appropriate standard is overriding and palpable error. The respondent argues that there is no stand-alone legal error at issue, but rather the decision involved the use of the discretionary summary judgment powers to answer questions of mixed fact and law. Accordingly, the decision is entitled to deference and should only be overturned if the appellant can demonstrate that there was an overriding and palpable error.

[5] In Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87, [2014] S.C.J. No. 7, the leading authority on the summary judgment process in civil cases, the Supreme Court of Canada emphasized that, absent an error of law, a decision of a judge on such a motion is to be accorded deference. Accordingly, we agree with the standard of review in this case as put forward by the respondent.

Issues

[6] This appeal raises the following issues:

(a) Should the motion judge have admitted and considered the discovery transcript of Elizabeth Carroll? [page270]

(b) Should the motion judge have clearly ruled that the discovery transcript of Celina Carroll could be admitted and considered?

(c) Did the motion judge err in refusing to grant the motion for summary judgment?

A. Should the motion judge have admitted and considered the discovery transcript of Elizabeth Carroll?

[7] The motion judge found that the discovery of Elizabeth Carroll's transcript could only be admissible if it complied with rule 39.04(1) of the Rules of Civil Procedure, which provides:

39.04(1) On the hearing of a motion, a party may use in evidence an adverse party's examination for discovery or the examination for discovery of any person examined on behalf or in place of, or in addition to, the adverse party, and rule 31.11 (use of discovery at trial) applies with necessary modifications.

[8] According to the motion judge, the only reason that Elizabeth could be adverse in interest to the appellant is because of the admission in her statement of defence and cross-claim, at para. 8, that the appellant granted her permission to use the appellant's car on the day of the accident. The motion judge summarized the difficulty he had with this position, at para. 39 of his decision:

In other words, Celina seeks to use the contents of paragraph 8 of Elizabeth's defence to show that she and Elizabeth are adverse in interest for one purpose, but is asking this Court to ignore the same paragraph 8 for the purpose of determining the merits of this motion for summary judgment.

[9] The appellant takes issue with this position for two reasons. First, it is argued that Elizabeth's supposed admission is not binding on her, as it would be nonsensical to hold that admissions in pleadings will amount to indisputable findings of fact. Since both Elizabeth and her mother pled different conclusions about the consent issue, consent is a live issue that is yet to be determined. Second, the appellant contends that Elizabeth clearly has an adverse interest to her mother in this proceeding beyond the cross-claim for indemnification that she filed against the appellant, the appellant's entire defence hinges on disproving Elizabeth's claim that she had consent to use the car on the day of the accident.

[10] The respondent refutes the allegation that the motion judge did not consider Elizabeth's transcript evidence, as consideration of this evidence allowed him to find the inconsistency between her statement of defence and cross-claim and her transcript. [page271]

[11] In our view, the transcript of Elizabeth's discovery was admissible under rule 39.04(1) in this case. Paragraph 8 of Elizabeth's statement of defence and cross-claim is not an admission as it is not binding on her and is simply an assertion against the other party.

B. Should the motion judge have clearly ruled that the discovery transcript of Celina Carroll could be admitted and considered?

[12] Rule 39.04(2) provides that a party may not use one's own discovery transcript during the proceeding. However, as the motion judge noted, rule 31.11(6)(a) does allow for a narrow exception when a party is deceased, but only during trials. Rule 31(11)(6)(a) provides:

31(11)(6) Where a person examined for discovery,

(a) has died . . .

any party may, with leave of the trial judge, read into evidence all or part of the evidence given on the examination for discovery as the evidence of the person examined, to the extent that it would be admissible if the person were testifying in court.

[13] Although the motion judge did not explicitly rule on the admissibility of the appellant's transcript evidence, in our view rule 31.11(6)(a) makes it clear that such evidence may only be admitted in the limited circumstances described therein and only at trial with leave of the trial judge.

C. Did the motion judge err in refusing to grant the motion for summary judgment?

[14] The motion judge concluded, at para. 41 of his reasons, as follows:

For the reasons which follow, I do not believe this to be an appropriate case to grant summary judgment. Specifically, I am troubled by the deficient evidentiary record filed by Celina and in particular the lack of direct evidence from Elizabeth which could have explained the discrepancies set out below.

[15] Even if the transcript of Elizabeth's examination for discovery were taken into account and considered, the important issue of express or implied consent raised in this action is not capable of being determined on this record without a trial. As counsel for the respondent has pointed out, the decision of the Court of Appeal for Ontario in Fernandez v. Araujo (2015), 2015 ONCA 571, 127 O.R. (3d) 115, [2015] O.J. No. 4202 (C.A.) (released after the decision under appeal) overrules earlier authority and establishes [page272] that vicarious liability is based on consent to possession rather than consent to operation of (in this case) the automobile driven by Elizabeth.

[16] In our view, the record of evidence in this regard (even including the evidence of Elizabeth and Celina) is far from conclusive on that issue. Accordingly, it raises a genuine issue for trial.

[17] The motion judge considered and rejected the option of ordering a mini-trial pursuant to rule 20.04(2.2). His exercise of discretion in that regard is entitled to deference. In any event, we agree with him.

[18] The issue of the plaintiff's damages also remains outstanding. In these circumstances, a mini-trial of the discrete issue of whether Elizabeth has Celina's express or implied consent to possess the automobile would not significantly further the objectives articulated in Hryniak v. Mauldin.

[19] Nothing in these reasons prevents the parties from taking steps to resolve the issue of the plaintiff's damages and to agree on all facts necessary to seek a speedy and cost-effective and just determination of this issue of express or implied consent.

[20] For these reasons, this appeal is dismissed.

DAMBROT J.: --

Costs

[21] I have endorsed the appeal book, "Appeal dismissed for oral reasons delivered by Stewart J. Costs of the leave motion fixed by the motion judge at $4,000 awarded to the respondent. Upon the agreement of counsel costs of the appeal fixed at $14,000 also awarded to the respondent."

Appeal dismissed.

End of Document