COURT OF APPEAL FOR ONTARIO

CITATION: Caton v. Devecseri Estate, 2014 ONCA 52

DATE: 20140123

DOCKET: C55789

Hoy A.C.J.O., Cronk and Epstein JJ.A.

BETWEEN

Jeremy Caton

Plaintiff (Respondent)

and

Dale Orlando, Litigation Administrator of the Estate of Steven Devecseri, Jeffrey Bradfield, Paul Latanski and Kingsway General Insurance Company

Defendants (Appellant/Respondents)

and

Royal & Sunalliance Insurance Company of Canada added pursuant to Section 258(14) of the Insurance Act, R.S.O., 1990, c.I.8

Statutory Third Party (Respondent)

Todd J. McCarthy and Michael W. Chadwick, for the appellant Jeffrey Bradfield

Brigette A. Morrison, for the respondent Kingsway General Insurance Company

Raymond A.D. Watt, for the respondent Jeremy Caton

John J. Aikins, for the respondent Royal & Sunalliance Insurance Company of Canada

Heard: January 16, 2014

On appeal from the judgment of Justice B.G. MacDougall of the Superior Court of Justice, sitting with a jury, dated June 20, 2012, as amended on July 16, 2012.

ENDORSEMENT

[1] The appellant and the late Steven Devecseri were riding their motorcycles together. Devecseri collided, head-on, with the respondent Jeremy Caton’s car. The appellant did not hit Caton’s car. The trial judge charged the jury as to the appellant’s potential liability as both a joint and a concurrent tortfeasor. The jury found the appellant 10% at fault and Devecseri 90% at fault for the accident.

[2] The appellant advances four grounds of appeal: (1) the trial judge erred by telling the jury that his instruction on the “but for” test of causation did not apply to the appellant’s potential liability as a joint tortfeasor; (2) on the evidence, the trial judge erred by charging the jury on joint tortfeasors; (3) the trial judge’s charge was not balanced, and was unfair; and (4) the trial judge erred by dismissing, post-verdict, the appellant’s attempted renewal of his Rule 21.01 motion, which the trial judge had declined to deal with on the eve of trial, for a determination whether or not Devecseri’s insurance coverage with the respondent insurer, Royal & Sunalliance Insurance Company of Canada (“Royal”), responded in the circumstances.

[3] In disposing of this appeal, it is unnecessary for us to address the first two grounds of appeal. In our view, based on the answers to the questions put to the jury, it is clear that the jury found the appellant liable as a concurrent tortfeasor, as well as a joint tortfeasor. The trial judge charged the jury on the “but for” causation test in relation to the appellant’s potential liability as a concurrent tortfeasor, and the evidence at trial supported a charge to the jury on the basis of concurrent liability. Accordingly, the first two alleged errors are of no moment.

[4] As to the appellant’s third ground of appeal, in our view, read as a whole, the charge was not unbalanced or unfair to the appellant. The trial judge carefully summarized the appellant’s evidence and his position on the question of liability. The appellant’s counsel, like other counsel, was actively involved in reviewing and commenting upon the trial judge’s draft charge. The appellant’s counsel did not object to the trail judge’s instruction on concurrent liability or object on the basis of the overall fairness of the charge. This strongly suggests that this experienced counsel saw no overall imbalance or unfairness in the charge on the basis now urged before this court. At the end of the day, we are satisfied that this jury would have understood that it was free to accept or reject any of the liability theories advanced by the respondents against the appellant.

[5] As to his final ground, the appellant does not argue that the trial judge erred in refusing to grant him leave to initiate his Rule 21.01 motion on the eve of trial; rather, he takes issue with the trial judge’s dismissal of his motion after the trial was completed. We see no error in the trial judge’s having done so.

[6] The order adding Royal – Devecseri’s insurer – as a statutory third party to the action provided that the insurance coverage issue would be disposed of in a separate action, brought after trial, or as directed by the trial judge.

[7] Rule 21.01 permits a party to “move, before a judge, (a) for the determination, before trial, of a question of law raised by a pleading in an action where the determination of the question may dispose of all or part of the action, substantially shorten the trial or result in a substantial saving of costs” (emphasis added). The trial had been completed. Furthermore, because the motion was brought under Rule 21.01, no evidence was admissible on the motion without leave of the judge. The trial judge was of the view that the motion could not be determined without evidence. In these circumstances, it was open to the trial judge to dismiss the appellant’s Rule 21.01 motion and require the coverage issue to be determined in a separate action, as contemplated by the order adding Royal as a statutory third party to the action.

[8] We accordingly dismiss this appeal. The respondents Jeremy Caton and Kingsway General Insurance Company are entitled to their costs of the appeal in the amount of $15,000 each, inclusive of disbursements and HST. The respondent Royal is entitled to its costs of the appeal, inclusive of disbursements and HST, in the amount of $10,000.

“Alexandra Hoy A.C.J.O.”

“E.A. Cronk J.A.”

“Gloria Epstein J.A.”