D'Costa v. Mortakis et al. [Indexed as: D'Costa v. Mortakis]
47 O.R. (3d) 417
[2000] O.J. No. 794
Docket No. C30593
Court of Appeal for Ontario
Osborne, A.C.J.O., Catzman and O'Connor JJ.A.
March 13, 2000
Appeal -- Standard of appellate review -- Record comprising written material -- Appellate court may intervene where lower court disregards relevant evidence -- Plaintiff suing for damages for personal injuries arising out of automobile accident -- Motions judge dismissing action pursuant to s. 266(3) of Insurance Act -- Motions judge erring by disregarding relevant evidence -- Insurance Act, R.S.O. 1990, c. I.8, s. 266(3).
Insurance -- Automobile insurance -- No-fault provisions -- Actions -- Immunity from tort claims for personal injuries arising from motor vehicle accident -- Exceptions -- Plaintiff suing for damages for personal injuries arising out of automobile accident -- Motions judge dismissing action pursuant to s. 266(3) of Insurance Act -- Motions judge erring by disregarding relevant evidence -- Insurance Act, R.S.O. 1990, c. I.8, s. 266(3).
In May 1991, D was injured in an automobile accident. She sued the defendants for damages for personal injuries arising out of the accident. The defendants moved to have her action dismissed pursuant to s. 266(3) of the Insurance Act. By order dated August 28, 1998, Hoilett J. granted the defendants' motion. He found that D's injuries were not sufficiently serious to bring her claim within the exceptions to the immunity from liability provided by the Insurance Act. D appealed.
Held, the appeal should be allowed.
An appellate court may interfere with a finding of fact if the court below disregards evidence relevant to the issue being determined. The motions judge erred by basing his decision solely on evidence that related to D's condition before 1997, and he erred by disregarding the uncontradicted evidence of the deterioration of her condition in the 18 months that preceded the argument of the motion. The evidence that he disregarded was capable, if accepted, of establishing that D's injuries came with the exception in s. 266(1)(b). Accordingly, the decision of the motions judge must be set aside. There was no benefit in remitting the case to another motions judge. Given that the entire record was written evidence, the appellate court was in the position to dispose of the motion. Although there was also the option of adjourning the motion to the trial judge, in this case, the proper course was to dismiss the defendant's motion as D had satisfied the onus of showing that her claim came within the exceptions. Further, there was little to be gained by adjourning the matter because the defendants would be free to raise again at trial the defence provided by s. 266.
APPEAL from an order of Hoilett J. pursuant to s. 266(3) of the Insurance Act, R.S.O. 1990, c. I.8, dismissing the plaintiff's action.
Cases referred to Carter v. Brooks (1990), 1990 2623 (ON CA), 2 O.R. (3d) 321, 41 O.A.C. 389, 77 D.L.R. (4th) 45, 30 R.F.L. (3d) 53 (C.A.); Chilman v. Dimitrijevic (1996), 1996 646 (ON CA), 28 O.R. (3d) 536, 135 D.L.R. (4th) 61, 19 M.V.R. (3d) 187 (C.A.); Equity Waste Management of Canada Corp. v. Halton Hills (Town) (1997), 1997 2742 (ON CA), 35 O.R. (3d) 321, 40 M.P.L.R. (2d) 107 (C.A.); Grossi v. Bates (1995), 1995 10681 (ON SC), 21 O.R. (3d) 564 (Div. Ct.); Harper v. R., 1982 11 (SCC), [1982] 1 S.C.R. 2, 133 D.L.R. (3d) 546, 40 N.R. 255, 65 C.C.C. (2d) 193; Meyer v. Bright (1993), 1993 3389 (ON CA), 15 O.R. (3d) 129, 110 D.L.R. (4th) 354, 48 M.V.R. (2d) 1 (C.A.) [leave to appeal to S.C.C. refused (1994), 17 O.R. (3d) xvi, 172 N.R. 160n] Statutes referred to Courts of Justice Act, R.S.O. 1990, c. C.43, s. 134(1)(a) Insurance Act, R.S.O. 1990, c. I.8 (am. 1993, c. 10, ss. 1, 23; 1996, c. 21, s. 26), ss. 266, 267.1
Robert A. Besunder, for appellant. Ian R. Stauffer, for respondents.
The judgment of the court was delivered by
[1] O'CONNOR J.A.: -- The appellant sued the respondents for damages for personal injuries arising out of an automobile accident. By order dated August 28, 1998, Hoilett J. allowed the respondents' pre-trial motion under s. 266(3) of the Insurance Act, R.S.O. 1990, c. I.8, and dismissed the appellant's action. Hoilett J. found that the injuries suffered by the appellant were not sufficiently serious to bring her claim within the exceptions to the immunity from liability provided to the respondents in s. 266(1) of the Insurance Act.
[2] The appellant argues that the motions judge erred in basing his decision solely on evidence that related to the appellant's condition before 1997 and by disregarding the evidence of the deterioration of her condition during the ensuing 18 months that preceded the argument of the motion on June 19, 1998.
[3] I agree with the argument and for the reasons below, I would allow the appeal.
Facts
[4] On May 9, 1991, the appellant Cheryl D'Costa was a passenger in the front seat of a vehicle owned by the respondent Mortakis Tailor Ltd. and driven on Highway 417 in the City of Ottawa by the respondent Constantin Mortakis. Mortakis lost control of the vehicle and it struck a concrete median. There were no other vehicles involved in the accident.
[5] Shortly afterwards, Ms. D'Costa was taken by friends to the Ottawa General Hospital. The attending emergency doctor diagnosed a myofascial neck pain and a sprained right wrist. There is no indication in the hospital record that Ms. D'Costa complained of losing consciousness at the time of the accident. She was released from hospital the same day. On May 12, Ms. D'Costa went to the Riverside Hospital in Ottawa complaining of neck pain, back pain and head pressure. She was diagnosed as having a cervical sprain and given a cervical collar.
[6] Following the accident, Ms. D'Costa was treated by her family doctor. Initially, her principal complaints were neck pain and headaches. She managed these problems through massage therapy, chiropractic treatments, analgesics and non-steroidal anti-inflammatory medication. In August 1992, she began to complain of pain in her back, her jaw and her hip.
[7] At the time of the accident, Ms. D'Costa was 17 years of age. After the accident she continued her education and in June 1993 graduated from high school. While at high school, she participated in several sporting activities, including soccer, volleyball and swimming. She continued to be involved in the Duke of Edinburgh Award Program, a program designed to recognize extracurricular achievement in physical fitness and community service. She qualified for the silver and gold achievement levels. As part of this program, she went on five backpacking expeditions between October 1991 and September 1993.
[8] In September 1993, Ms. D'Costa enrolled in the physical education course at the University of Toronto. This is a four- year degree program which she successfully completed in June 1997.
[9] On her arrival in Toronto, Ms. D'Costa was referred to Dr. Harold Becker who was asked to co-ordinate the assessment of her injuries. In January 1994, Dr. Becker reported that Ms. D'Costa had suffered a temporomandular joint (jaw) injury and that she was experiencing ongoing symptoms from soft tissue neck and back strain. Dr. Becker's full report is not in the material that was filed with this court. However, it appears from later reports that he also concluded that Ms. D'Costa had suffered a closed head injury from which she was experiencing symptoms of a post-concussive syndrome, including suffering from headaches. Dr. Becker referred Ms. D'Costa to a physiotherapist and to a number of other physicians for further assessment and treatment. On January 21, 1994, Ms. D'Costa began this action.
[10] On September 1, 1994, Ms. D'Costa was involved in a second motor vehicle accident. At her examination-for- discovery, she testified that the second accident exacerbated her existing injuries, but that by March 1995 she had returned to the same physical condition she was in following the accident of May 9, 1991. Dr. Becker saw Ms. D'Costa again in December 1994 and reported that the second accident caused her problems to flare up to some extent but that her main difficulties clearly related to the first accident.
[11] In a report dated December 15, 1994, Dr. Becker noted that Ms. D'Costa was experiencing cognitive difficulties. He said that she demonstrated problems consistent with a closed head injury. She continued to have headaches and those "appear to be prolonged, indicating a likely long-term problem." He also noted that she was still reporting pain in her neck, back, jaw and right knee. Dr. Becker observed that Ms. D'Costa was a very straightforward young woman and that he expected that she would continue to improve.
[12] Dr. Becker saw Ms. D'Costa again on June 20, 1996. He reported that she continued to present with ongoing post- concussive symptoms relating to a closed head injury. He said that physically, she demonstrated a normal clinical examination. However, she reported continuing pain and difficulty with higher levels of physical activity. He said that he did not know what her future held and that it was unclear if she could remain in the field of physical education training. He said he thought that she would be able to function as a stewardess (her summer job at the time) without difficulty.
[13] Ms. D'Costa began to see Dr. Lhotsky, a family physician, in March 1996. In October 1996, he reported that her complaints had not changed since he had started to see her. She complained of persistent headaches, neck pain, tiredness, problems with concentration, easy frustration, memory lapses and overall a depressed mood. He was of the opinion that physically she had reached a plateau and that some of her symptoms might continue indefinitely.
[14] Ms. D'Costa was examined for discovery on July 9, 1996 and again on November 7, 1996. She testified that there were some components of her course work in the physical education program at the University of Toronto that she was unable to complete because of her injuries. She mentioned pole-vaulting, hurdles, swimming and gymnastics. On the other hand, she was able to take part in a large number of physical activities. She completed a neuromuscular conditioning course that involved an exercise program of running, weight training and sit-ups. She went on a three-day canoe trip in Algonquin Park. She competed as a coxswain on the University of Toronto rowing team in the fall of 1993 and as a member of the Argonaut rowing club in the spring of 1994. She maintained a B- and B average in her academic and practical courses respectively. She said that her injuries had a detrimental effect on her marks in high school and at university.
[15] In October 1996, private investigators conducted video surveillance of Ms. D'Costa over a four-day period. The written reports of the surveillance describe Ms. D'Costa as walking quickly with a strong gait. There was no evidence that her actions were limited by pain or discomfort. The motions judge who saw the videos said, ". . . they portray an average young university student of extraordinary energy."
[16] In the summers of 1994, 1995 and 1996, Ms. D'Costa was employed as a full-time stewardess at Royal Airlines. She remained employed on a part-time basis during her third and fourth years at university. From October 1995 to December 1996 she also worked part-time shifts as a hostess at the Sheraton Centre in Toronto.
[17] In June 1996, Ms. D'Costa was seen by a neurologist, Dr. M.B. Weber. He was of the opinion that Ms. D'Costa had likely suffered a mild concussion at the time of the accident and that she had developed a post-concussion syndrome. Dr. Weber reviewed the results of an EEG and of a brain mapping study. He concluded that there was objective evidence to support his clinical diagnosis that Ms. D'Costa had suffered a concussion followed by the clinical features of a post-concussion syndrome. He said that the studies corresponded with Ms. D'Costa's complaints of dysphasia and dyslexia.
[18] At the request of her accident benefits insurer, a clinical psychologist, Judith Shapiro conducted a neuropsychological assessment of Ms. D'Costa. In her report of October 1, 1996, Ms. Shapiro said that to the extent that Ms. D'Costa's cognitive abilities were less than expected, it was questionable whether such a result was a sequela to a head injury suffered in the accident. The cognitive complaints, in her opinion, were more consistent with a pre-existing neuropsychological weakness or with emotional difficulties than with a head injury. She said that Ms. D'Costa should be reassured that she likely did not have a head injury. She also said that Ms. D'Costa's complaints and her neuropsychological profile were suggestive of post-traumatic stress disorder and that the deficiencies identified were quite mild in nature. She concluded that overall the prognosis was quite favourable.
[19] Ms. D'Costa graduated from university in June 1997 and began full-time employment as a stewardess with Royal Airlines.
[20] On January 4, 1998, Dr. Lhotsky reported that Ms. D'Costa continued to complain of intermittent neck pain, upper and lower back pain, right hip and knee pain and headaches. He arranged for an appointment for her at the Rothbart Pain Management Clinic. He said her long-term prognosis remained guarded.
[21] On March 6, 1998, the respondents brought the motion under s. 266(3) seeking a determination that Ms. D'Costa's injuries did not come within the exceptions to the immunity set out in s. 266(1) and seeking to have her action dismissed. In support of the motion, the respondents relied on material that, with one minor exception, related to Ms. D'Costa's condition before 1997.
[22] In response, Ms. D'Costa introduced a number of medical reports and her own affidavit. The most important medical reports were those of Dr. G.D. Gale of the Rothbart Pain Management Clinic. He had seen Ms. D'Costa on March 9 and March 25, 1998. In a report dated April 22, 1998, Dr. Gale concluded that Ms. D'Costa had significant limitations both physically and cognitively which affected her work as an airline stewardess as well as her domestic and recreational activities. He said that she was partially disabled even though she managed to hold down her job. He also said that it was only a matter of time before she would have to give up the job entirely. It was six and one-half years since the accident and there would probably not be any further spontaneous improvement in her condition.
[23] It was Dr. Gale's opinion that the post-concussion syndrome diagnosed by Dr. Weber and the musculoskeletal problems would deteriorate over time and that there would come a point when she could no longer work. He said that if she should lose her job with Royal Airlines, she would have great difficulty finding another type of work. He noted that there were further tests to be done with respect to her musculoskeletal injuries. Diagnostic blocks of the cervical spine, the lumbar spine and the sacroiliac joints were scheduled for September 1998. If positive, these tests would provide objective evidence of the spinal and sacroiliac joint injuries.
[24] In May 1998, Ms. D'Costa took leave from her job on the basis of her physical limitations. On May 11, 1998, Dr. Gale certified that Ms. D'Costa was unfit to work for a period of three weeks due to spinal injury and cervicogneic headaches.
[25] On June 5, 1998, Dr. Gale provided an attending physician's statement in support of a disability coverage claim being made by Ms. D'Costa. In that statement he noted that her symptoms were getting worse and that the period during which she would be unable to work was unknown. He stated that she was unable to work because of physical limitations in bending, lifting and standing.
[26] In an affidavit sworn on June 16, 1998, Ms. D'Costa described her condition during the time she held full-time employment with Royal Airlines. She said that she had tried to maintain full-time employment, but that her physical injuries, most significantly her low back pain, had been aggravating her and were getting worse. The ongoing pain interfered with her ability to perform her job tasks, such as leaning over passengers to pass them items and carrying full pots of coffee.
[27] Ms. D'Costa said she wished to return to work. She said that Dr. Gale questioned whether she will ever be able to work for an airline again. He had advised her that she would likely have to choose between being a mother and a career woman, since physically she will be capable of doing only one or the other.
[28] The respondents did not cross-examine Ms. D'Costa on this affidavit.
[29] The motion was heard on June 19, 1998. In a brief endorsement dated August 28, 1998, the motions judge allowed the motion and dismissed Ms. D'Costa's action.
The Legislation
Section 266(1) of the Insurance Act provides as follows:
266(1) In respect of loss or damage arising directly or indirectly from the use or operation, after the 21st day of June, 1990, of an automobile and despite any other Act, none of the owner of an automobile, the occupants of an automobile or any person present at the incident are liable in an action in Ontario for loss or damage from bodily injury arising from such use or operation in Canada, the United States of America or any other jurisdiction designated in the Statutory Accident Benefits Schedule involving the automobile unless, as a result of such use or operation, the injured person has died or has sustained,
(a) permanent serious disfigurement; or
(b) permanent serious impairment of an important bodily function caused by continuing injury which is physical in nature. [See Note 1 at end of document]
[31] Section 266(3) and (4) establishes procedures for determining if an injured person comes within one of the exceptions in s. 266(1). Those sections read as follows:
266(3) In an action for loss or damage from bodily injury arising directly or indirectly from the use or operation of an automobile, the judge shall, on motion made before or at trial, determine if the injured person has, as a result of the accident, died or has sustained,
(a) permanent serious disfigurement; or
(b) permanent serious impairment of an important bodily function caused by continuing injury which is physical in nature.
(4) Even though a defence motion under subsection (3) is denied, the defendant may, at trial, in the absence of the jury, and following the hearing of evidence, raise the defence provided in subsection (1).
[32] If a case comes within one of the exceptions, the immunity created by s. 266(1) does not apply and the injured person may sue for loss or damage from bodily injury at large: Meyer v. Bright (1993), 1993 3389 (ON CA), 15 O.R. (3d) 129, 110 D.L.R. (4th) 354 (C.A.).
[33] In Chilman v. Dimitrijevic (1996), 1996 646 (ON CA), 28 O.R. (3d) 536 at p. 541, 135 D.L.R. (4th) 61, this court described the onus on a motion under s. 266(3) as follows:
To summarize, in establishing whether a plaintiff has met the requirements of s. 266(3) with respect to personal injuries, whether at trial or on a pre-trial motion:
(a) The onus is on the party alleging the injury to bring himself or herself within the statutory exception.
(b) With respect to past or existing matters, the standard of proof is upon a balance of probabilities.
(c) With respect to what will happen in the future, a party can satisfy the onus by showing upon expert or cogent evidence that there is a substantial possibility that a particular event or a condition may occur.
Motion Judge's Reasons
[34] In his endorsement, the motions judge said that the essential facts set out in the respondents' factum were admitted as accurate. Those facts, supported by several minutes of videotaped surveillance, led him to observe that the appellant's athletic and academic accomplishments after the accident were enviable by any standard. He said that there was nothing to be gained by a review of the conflicting expert opinions because expert opinions can never be a substitute for common sense. He concluded that the undisputed facts belied Ms. D'Costa's entitlement to assert the claim which he found did not come within the exception in s. 266(1)(b) upon which she relied. He, therefore, allowed the motion and dismissed the action.
Analysis
[35] Ms. D'Costa argues that the motions judge erred by basing his decision solely on evidence that related to her condition before 1997 and by disregarding the medical evidence and the evidence of the deterioration of her condition up to the time of the motion.
[36] The motions judge's finding that Ms. D'Costa's condition fell short of coming within the exception set out in s. 266(1) (b) was a finding of fact and as such is deserving of deference from this court.
[37] It is well settled that an appellate court may interfere with a finding of fact if the court below disregards evidence relevant to the issue being determined. In Harper v. R., 1982 11 (SCC), [1982] 1 S.C.R. 2, 133 D.L.R. (3d) 546, Estey J. expressed this principle as follows, at p. 14 S.C.R., p. 563 D.L.R.:
An appellate tribunal has neither the duty nor the right to reassess evidence at trial for the purpose of determining guilt or innocence. The duty of the appellate tribunal does, however, include a review of the record below in order to determine whether the trial Court has properly directed itself to all the evidence bearing on the relevant issues. Where the record, including the reasons for judgment, discloses a lack of appreciation of relevant evidence and more particularly the complete disregard of such evidence, then it falls upon the reviewing tribunal to intercede.
[38] These comments were made in the context of an appeal from a decision that was made after a trial. However, the same principle applies to appeals from judgments or orders made after a motion where the entire record consists of documentary or written evidence: Equity Waste Management of Canada Corp. v. Halton Hills (Town) (1997), 1997 2742 (ON CA), 35 O.R. (3d) 321 at p. 336, 40 M.P.L.R. (2d) 107 (C.A.); Carter v. Brooks (1990), 1990 2623 (ON CA), 2 O.R. (3d) 321 at pp. 329-30, 77 D.L.R. (4th) 45 (C.A.).
[39] In the present case, the motions judge seems to have completely disregarded the evidence led by Ms. D'Costa that related to her condition after 1996 and most particularly her condition in the period immediately leading up to the motion. He based his decision on the evidence of the surveillance which took place in 1996 and on the undisputed facts set out in the respondents' factum. Although that factum was not before this court, the reference is clearly to the athletic, academic and employment activities of Ms. D'Costa that were described by her on her examination for discovery and which I have summarized above. These activities obviously took place prior to the examination for discovery which was completed in November 1996.
[40] The motions judge dealt with the various medical reports by making two brief comments. First, he said that there was nothing to be gained from reviewing conflicting expert opinions. The difficulty with this comment is that most of the medical reports were not in conflict. Arguably, there was conflict between the report of Ms. Shapiro, the clinical psychologist, and Dr. Weber, the neurologist, about whether Ms. D'Costa had suffered a concussion in the accident and whether that accounted for the cognitive difficulties she was experiencing in 1996. That aside, there was no serious conflict in the other reports. In particular, the reports of Dr. Lhotsky and Dr. Gale about Ms. D'Costa's condition in the six months leading up to the motion were the only reports relating to her condition at that time. Dr. Gale certified that immediately before the motion Ms. D'Costa was not able to work. He was not able to say when, if at all, she would be able to return to work.
[41] The motions judge also said that expert opinions can never be a substitute for common sense. He said that the undisputed facts belied Ms. D'Costa's entitlement to a claim. Clearly, the motions judge was skeptical about the seriousness of Ms. D'Costa's complaints. The effect of the motion judge's conclusion, however, was to substitute his view of Ms. D'Costa's condition for that of the two doctors who had seen her in 1998. With respect, this was not really an exercise of common sense, but more of an expression of a medical opinion that her condition could not have deteriorated to the extent described in the uncontradicted reports of the two doctors.
[42] In adopting this approach, the motions judge also implicitly rejected the evidence of Ms. D'Costa that in May 1998 she was physically not able to work as a stewardess. As I mention above, there was no cross-examination of Ms. D'Costa on her affidavit. The motions judge did not refer to this evidence nor did he give any reason to justify disregarding it out of hand.
[43] In summary, I am satisfied that the motions judge erred in disregarding the evidence that related to Ms. D'Costa's condition in the months leading up to the hearing of the motion in June of 1998.
[44] I am also satisfied that the evidence that the motions judge disregarded was capable, if accepted, of establishing that Ms. D'Costa's injuries came within the exception in s. 266(1)(b). In Meyer v. Bright, at p. 137, this court said that the appropriate approach in cases considering this exemption is to answer sequentially the following three questions:
Has the injured person sustained permanent impairment of a bodily function caused by continuing injury which is physical in nature?
If the answer to question 1 is yes, is the bodily function, which is permanently impaired, an important one?
If the answer to question 2 is yes, is the impairment of the important bodily function serious?
[45] The evidence in this case, if accepted, establishes that Ms. D'Costa suffered soft tissue injuries and a closed head injury, both of which are physical in nature and that six and one-half years after the accident those injuries prevented her from working at her chosen occupation. The prognosis was that her condition was unlikely to improve. For Ms. D'Costa, the bodily functions impaired by these injuries are important and the impairment is serious in that she is unable to perform the physical tasks necessary for her job. This condition, if it is found to exist, would come within the exception in s. 266(1) (b). Accordingly, in my view, the decision of the motions judge must be set aside.
Disposition
[46] I see no benefit in remitting this case to another motions judge for disposition. This court has the authority to make any order that ought to or could have been made in the court below: s. 134(1)(a) Courts of Justice Act, R.S.O. 1990, c. C.43. The entire record consists of affidavits, medical reports and other written evidence. We are in as good a position as a judge in the court below to dispose of the respondents' motion.
[47] Counsel suggested that if we were to allow the appeal, we should either dismiss the respondents' motion or adjourn it to the trial judge.
[48] One interpretation of the language in s. 266(3) appears to require the judge hearing a motion before trial to decide the issue raised by the motion rather than adjourn it to the trial judge. The section reads, ". . . the judge shall, on motion made before or at trial, determine if the injured person . . ." comes within one of the exceptions in s. 266(1). However, this court in Chilman v. Dimitrijevic held that a judge hearing a pre-trial motion may adjourn the motion to the trial judge if the motion is premature or if the motion judge is unable for any reason to fairly determine the issue: see also Grossi v. Bates (1995), 1995 10681 (ON SC), 21 O.R. (3d) 564 (Div. Ct.) at p. 566. I accept that adjourning the motion to the trial judge is an available option.
[49] In my view, however, the proper course in this case is for this court to dismiss the respondents' motion. The respondents chose to bring the motion before trial. Ms. D'Costa filed material, medical reports and her affidavit, which, if accepted, would bring her claim within the exception in s. 266(1)(b). The respondents did not challenge this evidence either by way of cross-examination or by filing material in response. Rather, they chose to rely on the argument that the evidence introduced by Ms. D'Costa was not credible in light of the evidence of Ms. D'Costa's physical capabilities before 1997. That argument, it seems to me, asks the court to substitute its view of Ms. D'Costa's condition at the time of the motion for the opinion of the two doctors who saw her in 1998 and whose reports are in the record. I am not prepared to do that on the basis of the record before this court. Accordingly, I am of the view that Ms. D'Costa has satisfied the onus of showing that her claim comes within the exception in s. 266(1)(b).
[50] Finally, I would observe that there is little to be gained by adjourning this motion to the trial judge. The respondents will be free, at trial, after the evidence is heard, to raise again the defence of the immunity provided in s. 266(1). If they do so, the trial judge will determine the issue on the basis of the evidence introduced at trial. That evidence may be significantly different than the evidence introduced on the pre-trial motion. The fact that the respondents' pre-trial motion was dismissed will not be a bar to the respondents bringing a new motion at trial. [See Note 2 at end of document]
[51] In the result, I would allow the appeal, set aside the order of the motions judge and dismiss the respondents' motion with costs of the motion and the appeal to the appellant.
Order accordingly.
Notes
Note 1: In 1993, the Insurance Act was amended (see S.O. 1993, c. 10). For automobile accidents occurring after the effective date (January 1, 1994), s. 266 was replaced by s. 267.1. Although there are some significant changes in these amendments, the language creating the exceptions from the immunity established by the new section is the same as the comparable language in s. 266(1).
Note 2: Under the amendments to the Insurance Act mentioned above, this is no longer the case. Section 267.1(3) provides that a pre-trial motion may only be brought on the consent of the parties or by order of a pre-trial judge. Section 267.1(4) provides that the determination of the judge on a pre-trial motion is binding on the parties at trial.