NEWMARKET COURT FILE NO.: CV-09-386969-00A1 DATE: 20170707 CORRIGENDUM: 20170711

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Ruo Hang Liu Plaintiff – and – The Personal Insurance Company, Trevor James Middleton and Linda-Sue Pearce Defendants

Counsel:

No one appearing for the Plaintiff J. Cescon for Plaintiffs, Shayne Berwick, by his Litigation Guardian Colin Berwick, Colin Berwick, personally, and Terry Berwick (in action nos. CV-09-387093-00, CV-08-090129-00 and CV-13-114389-00) (“Berwick plaintiffs”) L. Covens and student-at-law A. Mealia for the Defendant, The Personal Insurance Company A. Charles Gluek for the Defendant, Linda Sue-Pearce No one appearing for the Defendant, Steven Raymond Samis A. Wallrap for the Defendants, Andrew Kozmik and Karen Kozmik (in action CV-13-114389-00)

HEARD: June 9, 2017

CORRECTED DECISION FROM MOTION

The text of the original decision has been corrected with the text of the corrigendum (released today’s date).

SUTHERLAND J.:

Overview

[1] The defendant The Personal Insurance Company (“Personal”) brings a summary judgment motion for:

(a) A declaration in the following four actions: CV-09-386969-00A1, CV-09-387093-00, CV-08-090129-00 and CV-13-114389-00 (“the four actions”), that:

(i) Linda-Sue Pearce (“Pearce”) is the owner of a 1998 green Ford F-150 truck, with plate number 6404RH (“the truck”) and insured by Wawanesa Insurance with Policy Number 7829723, which was operated by the Defendant Trevor James Middleton (“Trevor”) at the time of a motor vehicle collision on September 15, 2007; and

(ii) The determination of ownership and outcome will bind all the parties named in the four actions.

(b) An order dismissing the action bearing Court File No. CV-09-386969-00A1 against Personal with costs.

[2] The four actions involve an automobile collision that took place on September 15, 2007. The plaintiffs in the four actions were injured in the collision. The defendant Trevor was the driver of the truck that collided with the vehicle in which the plaintiffs were occupants, a white Honda Civic. The defendant Pearce is the mother of Trevor and was the registered owner of the truck at the time of the collision. Trevor was charged and convicted of two counts of criminal negligence causing bodily harm and four counts of aggravated assault. The convictions and sentence were upheld by the Ontario Court of Appeal on August 2, 2012. [1]

[3] The defendant Trevor is self-represented and was not in attendance at the motion. The court was advised that the defendant Steven Raymond Samis opposed the motion, though he too was not in attendance and filed no materials. The third party, Nicholas Perry, was also not in attendance, filed no materials and, as the court was advised, supported the motion. The Berwick plaintiffs gave submissions in support of the relief requested by Personal that Pearce is the owner of the vehicle.

[4] All the parties in the four actions were served. Counsel in attendance each agreed that there were no concerns of service upon all parties in the four actions.

[5] The factual situation of the collision was summarized by the Court of Appeal as follows:

[5] …In the early morning of Sunday, September 16, 2007, between midnight and 1:30 a.m., seven friends drove to the bridge at the mouth of a river that flows into Lake Simcoe in the township of Georgina to go fishing. Three of the seven were of Asian descent.

[6] At the same time, the appellant and a group of about 15 to 20 young adults met up in three trucks. Some of the people had been at parties. The appellant and others had been at a bar called the Mansion House. The appellant was a designated driver and said that he was not drinking that night. The three trucks eventually converged at De La Salle Park. The appellant asked one of his friends if he wanted to “party” or “come party” with him. The appellant started driving and the others followed. According to the friends, none of them knew where they were going. Eventually they ended up at the Blue Bridge where the anglers were fishing.

[7] A number of the partyers got out of their trucks and went down towards the water. Although most assumed the appellant left his truck, no one could say for sure. He denied it. One member of the group, Peter Way, asked another member, Ryan Hall-Leah, what was going on. He said he didn’t know but asked the group, whereupon an unknown male said that they were going “nip-tipping”. Peter Way knew that “nip” was a derogatory reference to Asians, but asked the group anyway what “nip-tipping” was. Another unknown person answered: “we’re going to push them in the river.” It was not the appellant who made either of these statements.

[8] A number of the partyers, including Steven French, who was extremely drunk, and Nick Perry, went onto the dock where the anglers were fishing. Mr. French asked them about their fishing licenses.

[9] Ruo Hang Liu, one of the fishermen, said that someone approached him, said he was Canadian and that he was doing his Canadian duty by asking to see his fishing licence. When he went to get it someone pushed him into the water. Similarly, Charles Hogan, another fisherman, said that someone who smelled of alcohol asked him about his fishing licence and when he went to get it he was pushed into the water. Mr. Way said that he heard an argument where someone said that this was their fishing turf or their fishing area, and then two of the partyers pushed two of the fishermen into the water. No one admitted to the pushing.

[10] There was conflicting evidence as to whether the appellant went down to the dock, whether he was part of any argument, and whether he was one of the people who pushed either of the fishermen into the water. He denied that he went down to the water at all. Mr. French and Mr. Way, who both said they saw the appellant at the dock, agreed that they could have been mistaken. Mr. French specifically testified that he thought he saw the appellant pushing someone in the water to his right out of the corner of his eye. Mr. French later conceded that he was guessing about this, and agreed that he was drunk and “next to blind” in his right eye.

[11] Following the pushing, everyone but Mr. Perry ran up and got into the trucks which pulled away with the appellant in the lead. When the appellant realized that Mr. Perry was not with them, he returned to the bridge where the people in the appellant’s truck saw Mr. Perry lying on the ground. The appellant got out to attend to him. He looked beaten up and badly hurt. Some of the fishermen were observed running from the scene and getting into a white Honda Civic, while a second white car was also driving away.

[12] The appellant was angry. He followed the Honda and ended up smashing it several times, ultimately hitting the car so hard that it left the road, hit a tree, and came to rest back on the road. The appellant said he was attempting to stop the occupants from getting away. After the Honda was stopped, he got out of his truck, saw that people were injured and asking for help, but he drove away to see how Mr. Perry was and did not call 911. Two of the occupants of the Honda were badly injured, one severely. [2]

[6] The occupant of the Honda that was severely injured was Shayne Berwick, who was left with permanent brain damage after suffering a traumatic brain injury, fractured skull, a blood clot in the brain, 10 broken ribs and a punctured lung. [3]

[7] On March 6, 2012, Healey J. ordered that three actions, CV-08-090129-00, CV-09-386969-00, CV-09-387093-00, along with their corresponding third-party claims be tried together or one after the other or as the trial judge may direct in the Ontario Superior Court of Justice in Newmarket.

[8] On September 25, 2014, Vallee J. ordered that the actions bearing Ontario Court File Nos. CV-08-090129-00, CV-09-386969, CV-09-386969-00A1, CV-09-387093 and CV-13-114389-00 be tried together or tried one immediately after the other or as the Trial Judge may otherwise direct.

[9] The issue for this court to decide is whether the defendant Pearce is the owner of the truck for which the insurance policy bearing policy number 7829723 with Wawanesa Insurance is effective.

[10] All the parties have agreed that if Pearce is the owner of the truck the action against Personal in Court File No. CV-09-386969-00A1 be dismissed.

[11] For the reasons below, I grant the relief requested by Personal.

Is Linda-Sue Pearce an Owner of the Truck?

Position of the Parties

[12] Personal and Berwick plaintiffs submit that there is no genuine issue requiring a trial. Pearce at all material times was the registered owner of the truck. At no time did she take any steps to remove herself as the registered owner of the truck. There was no selling of the vehicle by her to her son, Trevor. The evidence of Trevor and Pearce that Trevor was the owner of the truck does not coincide with the actions of the both of them.

[13] Pearce submits that Trevor was the owner of the truck. He bought the truck. He paid the insurance on the truck. The reason that she was the registered owner was to secure her loan that she gave to Trevor to purchase the truck. If Trevor did not pay back the loan, she would be able to sell the truck. She had her own vehicle. She drove the truck only a few times. It was her intention to transfer the ownership and get personalized licence plates for Trevor on the truck as a gift for his birthday. Before she could transfer the ownership and obtain the personalized licence plates, the collision occurred. Thus, even though she was the registered owner of the truck, the true owner of the truck was Trevor.

Legal Principles

Summary Judgment

[14] Pursuant to r. 20.01 of the Rules of Civil Procedure, [4] the court must grant summary judgment if it is satisfied there is no genuine issue requiring a trial. In response to a summary judgment motion, one is not permitted to solely rely on allegations or denials in their statement of defence but must provide affidavit material with the specific facts showing that there is a genuine issue requiring a trial.

[15] There will be no genuine issue requiring a trial when a court is able to reach a fair and just determination on the merits. A fair and just determination on the merits is achieved when:

(a) The process allows the judge to make necessary findings of facts;

(b) The process allows the judge to apply the law to the facts; and,

(c) It is a proportionate and more expeditious and less expensive means to achieve a just result. [5]

[16] On a motion for summary judgment, the court must first determine if there is a genuine issue requiring a trial based on the evidence given on the motion. If there appears to be a genuine issue requiring a trial, the court would then determine if the need for a trial can be avoided using the powers under r. 20.04(2.1) of the Rules of Civil Procedure by weighing the evidence, evaluating the credibility of the deponents, and drawing any reasonable inference from the evidence unless it is in the interest of justice for these powers to be exercised only at a trial. These powers are presumptively available to the judge to give effect to the goals of timeliness, affordability and proportionality in review of the litigation as a whole. [6]

[17] In contrast, the responding party must put their “best foot forward” or risk summary judgment being awarded against them. The responding party bears the evidentiary burden to present affidavit material or other evidence to support the allegations or denials in their pleading. Absent this evidence, an adverse inference can be drawn. [7]

Analysis

[18] Section 192(2) of the Highway Traffic Act [8] (HTA) states that the owner of a motor vehicle “is liable for loss or damage sustained by any persons by reason of negligence in the operation of the motor vehicle… on a highway.” An owner is not liable if the motor vehicle “was without the owner’s consent in the possession of some person other than the owner or the owner’s chauffeur.” There is no issue of consent in the circumstances of this action.

[19] A motor vehicle may have more than one owner under the provisions of the HTA. [9] “Owner” or “ownership” is not defined in the HTA.

[20] The presumption of ownership of a motor vehicle operated on a highway under the HTA is rebuttable. [10] The onus is on the party who wishes to prove that he or she is not the owner of the motor vehicle notwithstanding being the registered owner of the motor vehicle. [11]

[21] The party wishing to prove that registered ownership is not ownership of the motor vehicle must prove, on the balance of probabilities, that he or she does not retain indicia of title. Per Gillese J. in Dalton (Litigation Guardian of):

[22] Where the registered owner does not retain indicia of title, has no control over the vehicle, and has done everything that could reasonably be expected to be done to transfer ownership, she will not be "an owner" of the vehicle within the meaning of the Highway Traffic Act. [12]

[23] Other actions or circumstances that indicate the change of ownership of a motor vehicle include the following:

(a) Removal of the licence plates from the motor vehicle;

(b) Transfer of ownership by agreeing to sell the motor vehicle either verbally or supported by a written bill of sale;

(c) The signing of the registration of ownership of the motor vehicle;

(d) No longer having an insurable interest in the motor vehicle;

(e) Not being responsible for the certification or repairs of the motor vehicle;

(f) No longer having possession of the motor vehicle;

(g) Acknowledgment of ownership by the other person; and

(h) The accepting of the proceeds of sale of the motor vehicle. [13]

[24] Accordingly, the determination of whether Pearce was the owner of the truck, as in any case to determine this issue, is a factual determination based on the evidence provided.

[25] The evidence presented on this motion revealed that Pearce was the registered owner of the truck. The insurance on the truck was in both Trevor’s name, as the primary driver, and Pearce’s name, as the secondary driver. The payment of the insurance premiums was through Trevor’s bank account. Pearce deposited money into this account from time to time, but she did not necessarily make the insurance premium payments. Any maintenance on the truck and the gas for the truck was paid for by Trevor. The truck was parked at the residence of Pearce and Trevor, where he lived with Pearce and her partner. The Bill of Sale of the truck was in Pearce’s name, though the evidence of Pearce and Trevor regarding who was present at the purchase of the truck and the negotiations of the purchase are dissimilar. Trevor’s evidence is not consistent on this issue. He deposes that he was there alone. He also deposed in his examination for discovery that he thought his mother was there, but was not certain. Pearce deposes she was not there. Her partner, Howard Booscher, deposes that he was present with Trevor when the truck was purchased.

[26] Pearce went and obtained the truck from impound once the police were finished inspecting the truck. This, however, is not surprising given that Trevor was under arrest at that time.

[27] There was only one set of keys for the truck and those were in the possession of Trevor.

[28] Mr. Booscher, Pearce and Trevor gave evidence that the truck was Trevor’s truck. Pearce lent money to Trevor to purchase the truck and the ownership was put in Pearce’s name to secure the payment of the loan by Trevor. There is no written documentation evidencing the loan and no evidence on the amount of the loan. Pearce gave evidence that the loan was paid off in full by Trevor prior to the collision and thus, Pearce no longer had any interest in the truck. Interestingly, notwithstanding that the truck was registered in her name to secure her loan for the purchase of the truck, Pearce gave evidence that there is no written loan documentation or documentation on the payment of the loan in full because Trevor is her son and she trusted him.

[29] The registered ownership was planned to be changed to provide personal licence plates to Trevor as a gift on his birthday which was to be on November 7, 2007; however, the collision occurred before his birthday.

[30] After the collision, the truck was sold to Steven French, who was one of the individuals present with Trevor at the collision. The negotiations of the sale were between Trevor and Steven French. All the proceeds from the sale went to Trevor.

[31] Pearce has directed the court to several cases to support her submission that Trevor, and not her, was the owner of the truck, namely Mossop v. Canadian General Insurance Co., [14] Smith v. Mikel [15] and Fedele v. Burke Estate. [16]

[32] In Mossop, Patrick Mossop purchased a truck from his father, Hubert Mossop for $1,000. Patrick paid by cheque. Hubert cashed the cheque. Hubert also signed the back of the ownership transferring the truck to Patrick. Patrick was involved in an accident prior to obtaining a certificate of mechanical fitness and transferring the ownership of the truck to himself. In the circumstances of this case, R.E. Holland J. found that Hubert was no longer an owner of the truck given that here was no indicia of ownership, possession and control.

[33] In Smith, the issue was the ownership of snowmobiles. The action arose from a single snowmobile accident. The circumstances are that the snowmobile was traded to the defendant B&K by a non-party. B&K then sold to Doug Wolfe. Mr. Wolfe told a representative of B&K that he was purchasing the snowmobile for his brother. Mr. Wolfe paid for the snowmobile and took possession. He took the snowmobile to his home. He received a Bill of Sale for the purchase of the snowmobile approximately a week later. The Bill of Sale was put in Doug Wolfe’s name and not his brother Jason Wolfe, even though Doug Wolfe advised B&K that he was purchasing the snowmobile for his brother, Jason. The snowmobile was still registered in the name of B&K approximately three days after Doug Wolfe took possession of it. B&K provided the ownership of the snowmobile to Jason Wolfe and advised him to transfer the ownership into his name. The defendant, William Mikel, purchased the vehicle from Jason Wolfe in mid-December 2000 and took possession of the snowmobile. William Mikel was involved in an accident with the snowmobile near the end of February 2001. On the date of the accident, B&K was still the registered owner of the snowmobile. On a summary judgment motion brought by B&K to have the action dismissed against it, Rady J. granted the motion dismissing the action against B&K. Rady J. found that B&K was not an owner of the snowmobile mainly because it did not have any control or possession of the snowmobile at the time of the accident. Rady J. further found that imperfect compliance with statutory obligations to transfer ownership of the snowmobile in itself is not an indicium of ownership. As Rady J. stated: “The only real question is whether the individual/entity is in fact an owner. That is the only basis upon which vicarious liability is founded.” [17]

[34] In Fedele, the defendant, Katherine Hudson, and her insurer brought a motion for summary judgment seeking an order dismissing the action against her. The issue on the motion was whether Ms. Hudson was an owner of a 1991 Toyota Celica that was involved in a motor vehicle accident on January 24, 2006. Ms. Hudson and the driver of the Celica, Paul Burke were in a tumultuous relationship which ended in the summer of 2005. Mr. Burke was killed in the accident. The uncontroverted evidence of Ms. Hudson is that she was the registered owner of the Celica until July 26, 2005. At that time, she transferred her ownership interest to Mr. Burke and that he enjoyed the care and control of the Celica. He had the keys. Ms. Hudson did not drive the vehicle. In December 2005, Mr. Burke applied for renewal of the licence plates on the car. At the time of the accident, Mr. Burke was the registered owner of the Celica.

[35] Ms. Hudson deposed that Mr. Burke told her that he arranged for insurance for the Celica when in fact he did not. Ms. Hudson further deposed that she had forgotten to cancel the insurance on the Celica. It was argued that since the insurance was not cancelled by Ms. Hudson, she was an owner of the Celica. Harvison Young J. agreed with Rady J. that imperfect compliance with statutory rules regarding insurance on a motor vehicle in itself does not support a finding of ownership of the vehicle. Harvison Young J. reviewed the evidence as a whole and determined that based on the unconverted evidence of Ms. Burke there was no indicia of ownership in that she did not have possession or control of the Celica. Accordingly, there was no evidence to rebut the presumption that the registered owner of the vehicle, Mr. Burke, was the owner of the Celica, not Ms. Hudson.

[36] After reviewing these cases, I find that their respective factual matrixes are significantly different than this case.

[37] In this case, there is no dispute that the truck was originally registered in Pearce’s name to provide her with control of the truck. If Trevor did not repay the loan, she could take the truck and sell it. Further, the plates were never removed from the truck. The insurance remained in her name, as well as Trevor’s. Trevor lived in the same household as Pearce. The truck was parked at her residence. Accordingly, there was a measure of control and possession of the truck by Pearce.

[38] The arrangement was between parent and child. As such, there was a measure of trust between Pearce and Trevor. It is understandable that there would be no documentation of the loan. But there was no evidence given showing a payment of money by Pearce to Trevor or directly to the dealer to purchase the truck. The trust element of the relationship would translate, I would think, that the truck would not be required to be registered in Pearce’s name to secure payment. I am cognizant that the only evidence of the fact there was a loan given to Trevor by Pearce is that of Pearce, her partner, and Trevor. There is no evidence contradicting their affidavit evidence. It seems to me that the truck was owned by Pearce for Trevor to drive and pay for the expenses of the truck, but control of the truck was with Pearce.

[39] I find that Pearce’s initial and continued registration of the truck in her name was deliberately done to maintain control of the truck, and, given that Trevor lived with her, possession, of the truck to secure the loan.

[40] Continuing on this analysis, the next question is, was the loan paid off? Again, there was no documentary evidence given that the loan was repaid. There was no evidence presented showing Trevor making payments to his mother. There was no evidence provided indicating the date the loan was allegedly repaid. No evidence showing the final payment of the loan. All the evidence that was presented is in the affidavits of Pearce and Trevor. The responding party has an obligation to put their best foot forward. Accordingly, this court is to presume that the best evidence Pearce has on the loan and the repayment of the loan is what has been presented on this motion. The evidence provided does not satisfy this court, on the balance of probabilities, that if there was a loan, that it was paid off.

[41] In any event, if the loan was paid off, I am not satisfied that the paying off of the loan relinquished Pearce’s intention to have control and possession of the truck.

[42] Further, I am not persuaded that there was a contemplated gift to provide personalized licence plates to Trevor for his birthday in November and that is why the ownership of the truck was not transferred to Trevor upon the repayment of the loan. Pearce states that she did not want Trevor to pay for the licence plates to transfer the ownership of the truck and then pay for personalized licence plates. In effect, Pearce did not want the government to collect payment twice for licence plates. I find this submission wanting given the lack of evidence to support this assertion. No evidence was provided to support that any process was started to change to personalized licence plates. There was no evidence of the cost of the change, that the forms to obtaining ownership of the licence plates had been filled out or of the names to be used on the ownership forms. I find this justification for why the registered ownership was not transferred once the alleged loan was repaid to be too coincidental.

[43] Based on the evidence provided, I find that Pearce has not rebutted the presumption of ownership of the truck.

[44] I am satisfied based on the evidence provided on this motion that this court is able to make a fair and just determination regarding the ownership of the truck. Therefore, I do not find that there is a genuine issue requiring a trial on the question of whether Pearce was the owner of the truck.

[45] Consequently, I find that Pearce was an owner of the truck. I am satisfied, on the balance of probabilities that the presumption of ownership applies.

[46] Given that I have found that Pearce was an owner of the truck, there is no requirement for the OPCF 44R Endorsement for underinsured and uninsured coverage to apply. Personal’s policy of insurance is not required and as such, Personal is no longer a necessary defendant in this action. All parties agreed if I found Pearce to be an owner of the truck that Personal is not required as a named defendant in this action because Pearce’s policy of insurance with Wawanesa Insurance applies.

Disposition

[47] For the reasons given, I make the following:

(a) A declaration in the following four actions: CV-09-386969-00A1, CV-09-387093-00, CV-08-090129-00 and CV-13-114389-00 that:

(i) Linda-Sue Pearce was the owner of a 1998 green Ford F-150 truck, with plate number 6404RH insured with Wawanesa Insurance Policy Number 7829723 operated by the defendant, Trevor James Middleton, at the time of a motor vehicle collision on September 15, 2007.

(ii) The determination of ownership in paragraph (i) above shall bind all the parties named in the four actions.

(b) An order dismissing the action bearing Court File No. CV-09-386969-00A1 against Personal.

Costs

[48] If the parties cannot agree on costs, Personal and Berwick plaintiffs to serve and file their respective submissions of costs within twenty-one days from the date of this decision, and the defendant Pearce will have fourteen days thereafter to serve and file her submissions. The submission to be no more than three pages, double-spaced, exclusive of any cost outline, case law and offers to settle. Submissions are to be filed with the court. If no submissions are received within the time period set out herein, an order will be made that there will be no costs.

Justice P.W. Sutherland Released: July 7, 2017

CORRIGENDUM

1. Style of Cause has been corrected to reflect Plaintiff representation as follows:
   • No one appearing for the Plaintiff
   • J. Cescon for Plaintiffs, Shayne Berwick, by his Litigation Guardian Colin Berwick, Colin Berwick, personally, and Terry Berwick (in action nos. CV-09-387093-00, CV-08-090129-00 and CV-13-114389-00) (“Berwick plaintiffs”)
2. Style of Cause has been corrected to reflect Defendant representation as follows:
   • No one appearing for the Defendant, Steven Raymond Samis
   • A. Wallrap for the Defendants, Andrew Kozmik and Karen Kozmik, (in action CV-13-114389-00)
3. Paragraph 3, line 5: “plaintiff, Ruo Hang Liu (“Liu”)” is deleted and replaced with “ Berwick plaintiffs”.
4. Paragraph 8, line 2: “CV-08-09129-00” deleted and replaced with “CV-08-090129-00”.
5. Paragraph 12, line 1: “ Liu” is deleted and replaced with “Berwick plaintiffs”.
6. Paragraph 48, line 1: “plaintiff Liu” is deleted and replaced with “Berwick plaintiffs”.

Footnotes:

[1] R. v. Middleton, 2012 ONCA 523. [2] Ibid at paras. 5-12. [3] Affidavit of Catherine A. Bruder sworn October 20, 2016, at para. 5. [4] Rules of Civil Procedure, R.R.O. 1990, Reg. 194. [5] Hryniak v. Mauldin, 2014 SCC 7, at para. 49. [6] Ibid at para. 65; and Canaccord Genuity Corp. v. Pilot, 2015 ONCA 716, at para. 31. [7] Vincorp Financial Ltd. et al. v. Hope’s Holdings Inc., 2010 ONSC 6819, at para. 17. [8] Highway Traffic Act, R.S.O. 1990, c. H.8. [9] Hayduk v. Pidoborozny, at p. 886; and Due (Litigation Guardian of) v. Waters, 2014 ONSC 6007, at para.13. [10] Hayduk, supra note 9; and Dalton (Litigation Guardian of) v. Emerson Estate (1999), 103 O.T.C. 53, at para. 20, (Ont. S.C.). [11] Hayduk, supra note 9; and Mazur v. Elias Estate, [2002] O.T.C. 586, at para. 10 (Ont. S.C.); reversed on other grounds, Mazur v. Elias Estate. [12] Dalton (Litigation Guardian of), supra note 10, at para. 20. See also, Mazur, supra note 11, at para. 10; Hayduk, supra note 9; and Due (Litigation Guardian of), supra note 9, at para. 14. [13] Martin v. Zivkovic, 2010 ONSC 2427. [14] (1985), Mossop v. Canadian General Insurance Co., 11 C.C.L.I. 49, (Ont. H.C.). [15] Smith v. Mikel. [16] Fedele v. Burke Estate, 2009 CarswellOnt 9671, (Ont. S.C.). [17] Smith, note 15, at para. 28.