COURT OF APPEAL FOR ONTARIO
DATE: 20060630
DOCKET: C44340
RE: MARIE J. CARRIERE and CHRISTINE JANET ZAREMBA, a minor by her Litigation Guardian, MARIE J. CARRIERE (Plaintiffs (Appellants)) – and – KEVIN SCULLION as Litigation Administrator for THE ESTATE OF MIKE McKINNON (Defendant (Respondent))
BEFORE: SIMMONS, ARMSTRONG AND LAFORME JJ.A.
COUNSEL: Sergio Grillone for the appellant Nestor E. Kostyniuk for the respondent
HEARD & ENDORSED: June 28, 2006
On appeal from the order of Justice William P. Somers of the Superior Court of Justice dated September 16, 2005.
A P P E A L B O O K E N D O R S E M E N T
[1] Neither party tendered admissible expert evidence on the summary judgment motion concerning the interpretation of the applicable Manitoba statute. In the unique circumstances of this case, involving a visitor to Manitoba who was injured in a motor vehicle accident solely as a result of the actions of another visitor to Manitoba, in our view, the proper interpretation of the statute presents a genuine issue for trial and the motion judge erred in determining it on a summary judgment motion.
[2] Accordingly, the appeal is allowed and the summary judgment is set aside. The costs order below is set aside. Costs of the appeal to the appellant on a partial indemnity scale fixed at $2,500.00 inclusive of disbursements and G.S.T.