Court of Appeal for Ontario

Date: 2018-02-20 Docket: C64205 Judges: Hourigan, Roberts and Nordheimer JJ.A.

Between

Carrie Anne Tapak, Dennis Cromarty, Faye Evans, Pam Meady, Jennifer Esterreicher, Anthony Clowes and Johanthan Theriault

Plaintiffs (Appellants)

and

Non-Marine Underwriters, Members of Lloyd's of London also known as Lloyd's of London

Defendant (Respondent)

Counsel

Christopher Hacio, for the appellants

Amanda McBride and Daniel Michaud-Shields, for the respondent

Heard

February 14, 2018

Appeal

On appeal from the judgment of Regional Senior Justice Bonnie Warkentin of the Superior Court of Justice sitting without a jury, dated July 13, 2017, with reasons reported at 2017 ONSC 4304.

Reasons for Decision

[1] The plaintiffs appeal from the order of the motion judge that granted summary judgment dismissing their claim on the basis that the action was barred by the expiration of the two year limitation period under the Limitations Act, 2002, S.O. 2002, c 24, Sched. B.

[2] The action arises out of an accident involving a Greyhound bus that occurred on December 23, 2000. Shaun Davis ("Davis"), a passenger on the Greyhound bus, grabbed the steering wheel of the bus, forcing it across the highway where it rolled onto its side into a ditch.

[3] Several of the bus passengers suffered injuries and one passenger died. They sued Davis, Albert Dolph, the driver of the bus, Greyhound Canada Transportation ("Greyhound") as operator, Her Majesty the Queen in the Right of the Province of Ontario, the Ontario Provincial Police, and two OPP Constables, Corey Parrish and Martin Singleton. A statement of claim was issued on June 20, 2001.

[4] The respondent, Lloyd's of London, was the insurer for Greyhound and provided the defence for Greyhound and for Mr. Dolph, the bus driver. The trial in the action took place over many weeks in 2010 and 2011. The trial judgment was released on January 31, 2012. Davis did not defend the claims against him and did not participate in the litigation in any fashion.

[5] The trial judge concluded that none of the defendants, except Davis, was liable. The plaintiffs appealed the trial judgment. They agreed to bifurcate the appeal so that, should this court dismiss their appeal as to the liability of the other defendants, there was no need to proceed with the appeal on the calculation of damages. The appeal on liability was dismissed on January 18, 2015.

[6] The plaintiffs sought leave to appeal to the Supreme Court of Canada. However that motion was withdrawn when the plaintiffs and the defendants, excluding Davis, who by then was deceased, reached a settlement.

[7] At some point after obtaining judgment against Davis, and after Davis's death in October 2014, the plaintiffs sought to recover their damages from the Motor Vehicles Accident Claims Fund, on the basis that Davis was uninsured. They were denied indemnification from that fund.

[8] In January 2016, counsel for the plaintiffs contacted the respondent seeking payment of the plaintiffs' damages under s. 258 of the Insurance Act, R.S.O. 1990, c. I.8 as against Davis on the basis that the respondent was the insurer for Davis. When the respondent denied that they were the insurer for Davis, a number of the original plaintiffs to the tort action then commenced this action against the respondent on February 24, 2016.

Analysis

[9] There were two issues before the motion judge. The first was whether Davis was an occupant of the Greyhound bus such that the insurance coverage for the bus would cover him. The other was whether the two year limitation period had expired. The motion judge concluded that she could not resolve the first issue on a summary judgment motion because of the factual issues involved. On the second issue, though, the motion judge determined that the two year limitation period had expired and thus the plaintiffs' claim was statute barred.

[10] In reaching her conclusion on the second issue, the motion judge said, at para. 65:

The determination of whether or not Davis was an insured under the Lloyd's policy was a question that should have been determined at the latest, no later than two years after the January 31, 2012 decision by [the trial judge].

[11] The factual findings made by the motion judge that trigger the commencement of the limitation period are entitled to deference from this court – Hryniak v. Mauldin, [2014] 1 S.C.R. 87, 2014 SCC 7 at para. 81. We can see no palpable and overriding error in the conclusion that the motion judge reached based on the record that was before her. In particular, there was nothing that prevented the appellants from pursuing recovery with respect to the judgment against Davis, once they obtained it at trial. As found by the motion judge, the appellants were well aware that the respondent had provided the insurance coverage for the Greyhound bus and therefore any argument that that insurance provided coverage for the judgment against Davis was known to the appellants by that time, at the latest.

[12] The appellants attempt to extend the limitation period in three ways. The first is to rely on the fact that an appeal was taken from the trial judgment. They rely on the decision of this court in Smith et al. v. Tellier et al., (1974), 4 O.R. (2d) 154 for the proposition that a judgment is not final until any right of appeal has been exhausted. The appellants' reliance on that case is misplaced. The appeal of the trial judgment did not seek to alter the liability findings as against Davis. It was directed at the fact that the other defendants had not been found liable. It was only if the appellants were successful on that appeal that the damages might be revisited. That never occurred. The appeal, therefore, had no effect on the finality of the trial judgment against Davis.

[13] The second is to submit that the appeal against the other defendants, if successful, might have eliminated their losses and thus the appellants did not know that this action was "an appropriate means" to seek to remedy its losses until the appeal was dismissed, relying on s. 5(1)(a)(iv) of the Limitations Act, 2002 and Presidential MSH Corp. v. Marr, Foster & Co. LLP (2017), 135 O.R. (3d) 321, 2017 ONCA 325. In our view, s. 5(1)(a)(iv) is not intended to be used to parse claims as between different defendants and thus permit one defendant to be pursued before turning to another defendant. Rather, it is intended to address the situation where there may be an avenue of relief outside of a court proceeding that a party can use to remedy their "injury, loss or damage" – see, for example, 407 ETR Concession Co. v. Day, 2016 ONCA 709, 133 O.R. (3d) 762.

[14] The third is the argument that the appellants only sought declaratory relief and therefore, under s. 16(1)(a) of the Limitations Act, 2002, the two year limitation period does not apply. That argument cannot succeed because the claim in this action was not limited to declaratory relief. The claim also sought consequential relief, namely damages, so s. 16(1)(a) does not apply.

Conclusion

[15] The appeal is dismissed. The respondent is entitled to its costs of the appeal that we fix in the amount of $10,000.00 inclusive of disbursements and HST.

"C.W. Hourigan J.A."

"L.B. Roberts J.A."

"I.V.B. Nordheimer J.A."