Court of Appeal for Ontario

Citation: Swain v. Gorman, 2015 ONCA 194

Date: 20150324

Docket: C59353

Before: Lauwers, Hourigan and Pardu JJ.A.

BETWEEN

Mary Swain

Plaintiff (Appellant)

and

Sherry Gorman, Estate of Clifford Ross, by the estate trustee Shirley Ross, and Shirley Ross, personally

Defendants (Respondents)

Counsel:

Andrew Kerr, for the appellant Mary Swain

Joanne R. Witt and R. Boucher, for the respondent Ross

Chris G. Paliare and Tina H. Lie, for the respondent Sherry Gorman

Heard and released orally: March 2, 2015

On appeal from the order of Justice Susan E. Healey of the Superior Court of Justice, dated August 13, 2014.

ENDORSEMENT

[1] In this summary judgment motion concerning the defendant's liability in a multi-vehicle motor vehicle action, the motion judge exercised her powers under r. 20.04. She relied on the evidence of the appellant and another witness, as well as on the accident report, in concluding that the respondent was not liable for the accident.

[2] The fact that, somewhat unusually, the respondent's own evidence about her position in the accident queue was not accepted by the motion judge, was fully explained by her on the basis that it was inconsistent with the other evidence, and particularly with the complete absence of damage to the front of the respondent's car. The appellant has shown no palpable and overriding error or any legal error. The appeal is dismissed.

[3] The appellant seeks leave to appeal the award of costs on the basis that the motion judge did not consider whether it was appropriate to pass the costs of the motion along to the respondent Ross. This was not raised in argument before the motion judge and we decline to address it.

[4] The costs of the appeal are payable by the appellant to the respondent Sherry Gorman in the amount of $9,000 and to respondent Ross in amount of $4,500.

"P. Lauwers J.A."

"C.W. Hourigan J.A."

"G. Pardu J.A."