Court of Appeal for Ontario

Date: 2018-01-25

Docket: M48484 (C60918)

Panel: Doherty, MacFarland and Rouleau JJ.A.

Between

Kossay El-Khodr Plaintiff (Respondent/Moving Party)

and

Raymond C. Lackie, John MacPhail, ATS Andlauer Transportation Services GP Inc. and Trailcon Leasing Inc. Defendants (Appellants/Responding Parties)

Counsel

Joseph Y. Obagi and Elizabeth A. Quigley, for the moving party

Barry A. Percival, Q.C. and James W. Gibson, for the responding parties

Heard: In writing

Reasons for Decision

[1] By way of a motion in writing, the moving party seeks an order:

(i) withdrawing the reasons for decision in this appeal dated September 19, 2017 (reported at 2017 ONCA 716);

(ii) granting a rehearing of the within appeal before the same five-judge panel which has recently been approved to hear appeals in Carroll v. McEwen (C62293); Cadieux v. Cloutier (C63160) and Persad v. Silva (C62935);

(iii) in the alternative, a stay of the decision rendered in this appeal, pending determination in the appeal in the new trilogy of cases to be scheduled before a five-judge panel which has been convened to determine issues which are over-lapping in the within appeal; and

(iv) such further and other relief as this Honourable Court may deem just.

[2] The grounds upon which this motion is brought can be summarized as follows:

(i) This court, in its ruling, effectively over-ruled Bannon v. Hagerman Estate (1998), 38 O.R. (3d) 659 (C.A.) and its progeny without notice to counsel that it intended to do so and where any such challenge could only and ought to have been heard by a five-judge panel;

(ii) This court in its reasons addressed an entirely new issue, one not raised by either party, dealing with the trial judge's treatment of the Ontario Drug Benefit Program and in so doing ignored relevant jurisprudence of this court in Lurtz v. Duchesne (2005), 194 O.A.C. 119 (Ont. C.A.).

(1) This Court did not Overrule Bannon

[3] This motion can be dealt with very briefly.

[4] A reading of this court's reasons, in particular paras. 55 through 61 thereof, call into question whether Bannon remains good law in Ontario, but nowhere in the reasons does this court "overrule Bannon" as the moving party's materials suggest. In particular, at para. 72 of the reasons, we noted:

Bannon may no longer be good law in this province; and significant changes have been made to the statutory scheme since Bannon was decided. I leave these questions for another day as I conclude, for the reasons expressed below, that the Gilbert case can be distinguished on its facts.

[5] As the responding parties note in their factum filed on this motion:

The Reasons for Decision were based on new insurance legislation which came into force after the decision in Bannon v. McNeely was decided. Bannon was decided under a former statutory regime for the deduction of benefits (page 27 Court of Appeal Reasons in El-Khodr v. Lackie).

[6] There simply can be no doubt that the issues of deductibility and/or assignment of past and future statutory accident benefits payments were front and center in this appeal and in the companion case of Cobb v. Long, 2017 ONCA 717, that was argued with this appeal. Similarly, and as noted in the quotation above, this court's decision in Gilbert v. South, 2015 ONCA 712, 127 O.R. (3d) 526 was not "overruled" by this decision; it was factually distinguished.

(2) The Treatment of the Ontario Drug Benefit Program was not a new Issue

[7] The issue of the Ontario Drug Benefit Program and its applicability was argued during the appeal. The trial judge's treatment of the issue was the subject of a ruling made at trial after the point was argued before her.

[8] In this court, the issue was squarely addressed by the moving party at paras. 66 through 70 of his factum filed in the appeal, and in paras. 32 through 35 of the responding parties' factum filed in the appeal.

[9] The issue of whether the liability insurer of the responding parties was entitled to an assignment of the moving party's entitlement to statutory accident benefits payments in relation to these expenses was directly before the court and was the subject of oral argument by both parties.

[10] As noted, at para. 23 of the reasons, the moving party is not prejudiced in any way given that the jury's award compensated him fully for medical expenses both past and future to which he was entitled and no deduction nor any assignment of those benefits was made from the jury's verdict for the reasons stated.

[11] Although we have addressed this motion on its merits, that fact should not be taken as any indication that this was a proper motion to be brought. It was not. The issues raised here, in their essence, were that the moving party was treated unfairly because the court decided matters that were not raised by the parties and without notice to them. Such issues are properly the subject for a further appeal, and not a motion for reconsideration. The right to reconsideration and/or withdrawal of the court's reasons is a narrow one. It is only in rare circumstances and where it is in the interests of justice that a court, having decided a matter, will reconsider: First Elgin Mills Development Inc. v. Romandale Farms Ltd., 2015 ONCA 54, 381 D.L.R. (4th) 114, at paras. 7 and 8.

[12] The moving party has, in any event, filed a motion for leave to appeal to the Supreme Court of Canada.

[13] For these reasons the motion is dismissed.

[14] The responding parties shall have ten days from the release of these reasons to file brief submissions on the costs of this motion. The moving party shall have ten days thereafter to file brief responding submissions.

"Doherty J.A."

"J. MacFarland J.A."

"Paul Rouleau J.A."