DATE: 20050215

DOCKET: C40786

COURT OF APPEAL FOR ONTARIO

RE:

JONATHAN P. HELE (Plaintiff/Appellant) -and- KATHARINE SHEFFIELD, WILLIAM L. CLARK, Estate Trustee of the Estate of Toni Lynn Clark, deceased, and WILLIAM L. CLARK (Defendants/Respondents)

BEFORE:

LABROSSE, LANG and JURIANSZ JJ.A.

COUNSEL:

D. Grant Fedorak

for the appellant

David A. DiLella

for the respondent Katharine Sheffield

Nadine Nasr

for the respondents William L. Clark, Estate Trustee of the Estate of Toni Lynn Clark, deceased and William L. Clark

HEARD AND ENDORSED:

February 14, 2005

On appeal from the judgment of Justice Ernest Loukidelis of the Superior Court of Justice dated September 18, 2003.

A P P E A L B O O K E N D O R S E M E N T

LABROSSE J.A.:

[1] The majority is of the view there is a triable issue as to whether it was reasonably foreseeable that the conduct of the deceased could result in damages to an innocent driver who was involved in the accident. That statement of claim is defective. However, it is supplemented by the affidavit of the plaintiff. It is acknowledged that we are entitled to look at the contents of the affidavit.

[2] Costs of the motion and appeal fixed at $5,000, in the event of the trial.

LANG J.A. (dissenting):

[3] I would dismiss the appeal. The statement of claim denies any contribution to or involvement in the accident and I do not read the affidavit as acknowledging or claiming otherwise. I also do not see s. 267 of the Insurance Act, R.S.O. 1990, c. H.8 as changing the common law on nervous shock. As the motion judge found that it was not reasonably foreseeable that Mr. Hele would suffer nervous shock, the claim cannot succeed. I see no reason to interfere with the motion judge’s finding.