Court of Appeal for Ontario

Citation: 2017 ONCA 840 Date: 2017-11-03 Docket: M48164 (C60828)

Panel: Cronk, van Rensburg and Pardu JJ.A.

Between

Trillium Motor World Ltd. Moving Party (Respondent/Appellant by way of cross-appeal)

and

General Motors of Canada Limited and Cassels Brock & Blackwell LLP Respondent (Appellant/Respondent by way of cross-appeal)

Counsel

For the moving party: Bryan Finlay, Q.C., Marie-Andrée Vermette, Michael Statham, David Sterns, Allan D.J. Dick and Andy Seretis

For the respondent: Peter H. Griffin and Rebecca Jones

Heard: In Writing

Reasons for Decision

Introduction

[1] This court's decision in this solicitor's negligence case was released on July 4, 2017: Trillium Motor World Ltd. v. Cassels Brock & Blackwell LLP, 2017 ONCA 544 ("Trillium v. CBB"). The moving party, Trillium Motor World Ltd. ("Trillium"), brings a motion in writing to vary the court's direction to the trial judge set out at para. 404(3) of the court's reasons. Specifically, Trillium seeks an order stipulating that, on the new damages hearing directed by this court at para. 404, the trial judge retains discretion to determine the final quantification of damages and the process for calculating the final award of damages, subject to a ceiling of $36.9 million.

[2] The respondent, Cassels Brock & Blackwell LLP ("CBB"), resists the motion.

[3] For the reasons that follow, we dismiss the motion.

Discussion

[4] In support of its motion, Trillium relies on rr. 1.04, 37.14(6), 59.06 and 61.16 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. Rule 61.16(6.1) states:

Subject to rules 37.14 and 59.06, an order or decision of a panel of an appellate court may not be set aside or varied under these rules.

[5] Rule 61.16(6.1) applies to the decision that Trillium seeks to vary. Thus, in order for this court to grant the relief sought, Trillium must bring itself within rr. 37.14 or 59.06.

[6] In our view, Trillium is unable to do so. Rule 37.14 has no application to this case. Rule 59.06 permits a party to bring a motion for relief other than that initially awarded. However, this court's authority under r. 59.06 to reconsider a decision is limited and will be exercised sparingly and only where it is clearly in the interests of justice to do so: see Hoang v. Mann Engineering Ltd., 2015 ONCA 838; First Elgin Mills Development Inc. v. Romandale Farms Ltd., 2015 ONCA 54, 381 D.L.R. (4th) 114; Mujagic v. Kamps, 2015 ONCA 360, 125 O.R. (3d) 715.

[7] The need for the urged variation, according to Trillium, arises from one particular interpretation of para. 404(3) of this court's reasons in Trillium v. CBB, in particular, the words "x percent" set out in parentheses in that paragraph. Paragraph 404, in its entirety, reads as follows:

[404] For these reasons, I would hold that the question of the final quantification of damages be returned to the trial judge for further consideration in accordance with the following:

(1) the proper starting value for the loss of chance should be $74.5 million (and not, as the trial judge found, $92 million). Applying a 55 percent contingency, the damages award would be $40.975 million. This figure should be rounded to $41 million;

(2) account should be taken of the opt-outs from the Class, (10 percent), bringing the figure to $36.9 million; and

(3) a determination should then be made, to the extent possible, of how many class members were Participation Form Dealers (x percent) to arrive at a new, final number.

[8] Trillium contends that it is possible to interpret the language of para. 404(3) as directing the trial judge to determine the final quantification of damages by the mathematical exercise of simply multiplying the $36.9 million figure referenced in para. 404(2) by the percentage of class members found to be Participation Form Dealers and Saturn Dealers, an approach to the calculation of damages expressly rejected by the trial judge on the parties' March 22, 2016 motion to settle the terms of the trial judgment.

[9] We are not persuaded that this is one of those rare cases in which it would be in the interests of justice to invoke this court's narrow jurisdiction under r. 59.06.

[10] The July 2017 reasons of this court must be read as a whole and in the context of the issues raised and arguments advanced on appeal. The reasons do not address the mathematical approach to the calculation of damages at issue on this motion, as urged by CBB before the motion judge and rejected by him. That issue was not argued on the appeal.

[11] Given this court's decision on appeal, the appropriate methodology and process for the calculation of damages in this case, including whether or not to adopt a mathematical approach to the quantification of damages in the manner urged by CBB, will be for the trial judge to determine at the new damages hearing. Subject to the directions provided by this court at para. 404, nothing in this court's reasons purports to constrain the trial judge's discretion in this regard.

Disposition

[12] For these reasons, the motion is dismissed. CBB is entitled to its costs of the motion. If counsel are unable to agree on the quantum of those costs, CBB shall deliver its brief written costs submissions to the Registrar of this court within 14 days from the date of these reasons. Trillium shall deliver its responding, and similarly brief, costs submissions within 14 days thereafter.

E.A. Cronk J.A. K. van Rensburg J.A. G. Pardu J.A.