Court of Appeal for Ontario
Citation: Nasir v. Kochmanski, 2012 ONCA 758 Date: 2012-11-07 Docket: C55471
Before: Simmons, Armstrong and Watt JJ.A.
Between:
Ibrahim Nasir, a minor, by his litigation guardian Tahir Nasir and Tahir Nasir, personally Plaintiffs/Respondents
and
Aggie Kochmanski Defendant/Appellant
and
Ume Rabab Third Party/Respondent
Counsel: Karim N. Hirani and Tracey Hamilton, for the appellant Hassan Fancy, for the respondents
Heard and released orally: November 1, 2012
On appeal from the order of Justice Fletcher Dawson of the Superior Court of Justice, dated April 5, 2012.
Endorsement
[1] In this proceeding the infant plaintiff sues the appellant for damages arising from a motor vehicle accident. The infant plaintiff alleges that the appellant was the driver of the motor vehicle that struck him.
[2] The motion judge, Dawson J., struck out the appellant’s third party claim against the infant plaintiff’s mother. He found that it had already been determined on another motion in the proceeding decided by Hill J. that the infant plaintiff’s claim against the defendant is limited to those damages attributable to the defendant’s proportionate degree of negligence in accordance with Taylor v. Canada (Minister of Health), 2009 ONCA 487, [2009] 95 O.R. (3d) 561 (C.A.).
[3] In the other motion, Hill J. refused the appellant’s request for leave to issue third party claims against the infant plaintiff’s grandmother and uncle. The primary basis for this decision was that the limitation period applicable to the third party claims had expired. However, Hill J. also observed that the limited nature of the appellant’s exposure in the main action was an additional basis for refusing leave.
[4] We do not read the statement of claim as pleaded as being limited to the defendant’s proportionate degree of fault. Rather, we read Hill J.’s observations as being premised on the position taken by the infant plaintiff’s counsel on the motion.
[5] The appellant has appealed Dawson J.’s order out of an abundance of caution because the formal order of Dawson J. does not refer to the limited nature of the infant plaintiff’s claims and the appellant’s counsel does not read the statement of claim as being so limited.
[6] In response to our inquiry today, the infant plaintiff’s counsel acknowledges that the order of Dawson J. may be amended to refer to the restricted nature of the plaintiff’s claim. As we have said, while we do not read the statement of claim as being so limited, in light of counsel’s acknowledgement, para. 1 of the formal order of Dawson J. is amended to read as follows:
- This court orders that the defendant’s third party claim as against Ume Rabab is hereby struck because the plaintiff limits his claim against the defendant to those damages that would be apportioned to the defendant in accordance with the relative degree of fault that is attributable to the defendant’s negligence. It will be open to the court at trial to apportion fault to other parties, if deemed appropriate, even though those parties are not joined as parties to the action.
[7] The appeal is otherwise dismissed.
[8] The proceedings before us and before the motion judge were entirely unnecessary. There will be no order as to costs of the appeal or of the motion to extend time to perfect. The orders of Dawson J. as to costs of the motion and the third party proceeding are set aside and replaced with orders for no costs.
“Janet Simmons J.A.”
“Robert P. Armstrong J.A.”
“David Watt J.A.”