DATE: 20060313

DOCKET: C44370 C43818

COURT OF APPEAL FOR ONTARIO

RE:

ARLENE BARRY, CHARLIE BARRY, CHARLA BARRY, SHERRY NOLAN, LORRIE ROBINSON, LEE-ANN BARRY and OWEN BARRY and ASHLEY VINCENT, by their Litigation Guardian, ARLENE (Plaintiffs/Respondents)

• and -

JOSEPH MARTIN CROZIER and DARWIN CROZIER, ALLIANZ INSURANCE COMPANY and WAWANESA INSURANCE COMPANY (Defendants/Appellant)

• and -

RICHARD AUCOIN, LITIGATION ADMINISTRATOR FOR THE ESTATE OF LANA VINCENT (Third Party)

BEFORE:

GOUDGE, SHARPE AND LAFORME JJ.A.

COUNSEL:

Hugh G. Brown

for the appellant Wawanesa Insurance Company

Vicki J. Edgar and Lucy Lee

for the respondents/plaintiffs

Rebecca Balaban

for the respondent Allianz Insurance Company

HEARD & RELEASED ORALLY:

March 1, 2006

On appeal from the decision of Justice John C. Kennedy of the Superior Court of Justice dated October 6, 2005.

E N D O R S E M E N T

[1] The appellant argues that there are two genuine issues for trial. The first is where Carlie was sitting when the crash occurred. In our view, there was no evidence before the motion judge tending to show that Carlie was seated where the appellant must place her to succeed. This was therefore not a genuine issue for trial. Indeed, on what was before him, it was open to the motion judge to make a positive finding that the only evidence specifically placing Carlie in the car had her in the left rear seat. Since the appellant had no evidence to the contrary, there was no need for a trial of this issue.

[2] As to the second issue, namely the damage she would have suffered had she been wearing a seat belt, it was also proper to the motion judge to conclude as he did, that the use of the seat belt would have made no difference for Carlie. One expert clearly said this and the other did not exclude it. This too was not a genuine issue for trial.

[3] The appeal must therefore be dismissed. Costs to the respondents/plaintiffs in the amount of $10,000 and to the respondent Allianz in the amount of $3,500.

"S. T. Goudge J.A."

"Robert J. Sharpe J.A."

"H. S. LaForme J.A."