COURT OF APPEAL FOR ONTARIO

CITATION: Peters Estate v. Desjardin Securite Financiere, 2016 ONCA 282

DATE: 20160420

DOCKET: C61175

Laskin, Hourigan and Brown JJ.A.

BETWEEN

Chanderdai Peters, Executrix and Trustee of the Estate of Isaac Peters

Plaintiff

(Appellant)

and

Desjardin Securite Financiere, Compagnie D’Assurance Vie / Desjardins Financial Security Life Assurance Company and METRO ONTARIO INC.

Defendant

(Respondent)

James Jagtoo and Frances Jagtoo for the appellant

Rebecca Gosevitz for the respondent

Heard: April 14, 2016

On appeal from the judgment of Justice Laurence A. Pattillo of the Superior Court of Justice, dated September 23, 2015.

ENDORSEMENT

[1] Chanderdai Peters, in her capacity as Executrix and Trustee of the Estate of her son, Isaac Peters, appeals the decision of the motion judge granting summary judgment dismissing her action.

[2] On December 12, 2012, Mr. Peters died as a result of injuries caused by a fall from the balcony of his twelfth floor apartment. The appellant commenced an action claiming payment of an accidental death benefit pursuant to a group policy (the “Policy”) issued by the respondent Desjardins Financial Security Life Assurance Company (“Desjardins”) to Metro Ontario Inc. (“Metro”).

[3] It was not disputed that Mr. Peters was an employee of a wholly owned subsidiary of Metro at the time of his death and that he was covered by the Policy. However, Desjardins brought a motion for summary judgment to dismiss the action on the basis that the appellant could not meet her burden of establishing that the death was caused by accident. In the alternative, Desjardins relied on the suicide exclusion in the Policy.

[4] Applying the roadmap for summary judgments drawn in Hryniak v. Mauldin, 2014 SCC 7, at para. 66, the motion judge first reviewed the record without using the new fact-finding powers and found that there was a genuine issue requiring a trial on the issue whether the appellant had established on a balance of probabilities that Mr. Peters died accidently. He concluded that there was evidence to support both that Mr. Peters died accidently and that he died by suicide. However, the motion judge was of the view that the need for a trial could be obviated by resorting to the powers listed in r. 20.04(2.1) of the Rules of Civil Procedure, R.R.O. 1990, Reg.194.

[5] After reviewing the evidence in detail, the motion judge found that the appellant could not meet her onus of establishing on a balance of probabilities that her son’s death was an accident. Accordingly, he granted summary judgment dismissing her claim.

[6] The appellant does not dispute that it was open to the motion judge to determine the case on a motion for summary judgment. Her criticism is that the motion judge, having embarked on the use of his powers under r. 20.04(2.1), failed to adequately consider and assess the evidence that supported a conclusion that the death was caused by accident. She further submits that there were credibility issues in the evidence that the motion judge did not address.

[7] We disagree. There were no significant credibility issues on the evidence. What were at issue were the inferences to be drawn from the evidence. In our view, the motion judge carefully considered the evidence and drew inferences that were available to him. It was not incumbent on the motion judge to advert to every piece of evidence that might support a conclusion that the death was accidental.

[8] The motion judge was aware of the appellant’s position that the conclusions and opinions reflected in reports prepared by the police officers involved in the case and the Coroner’s office raised credibility issues. In his endorsement, the motion judge stated that he would not consider those conclusions and opinions in his analysis.

[9] In these circumstances, there is no basis to interfere with the motion judge’s conclusion that the appellant did not meet her onus.

[10] The appellant raises the additional issue of the dismissal of her action against Metro. She submits that the motion judge erred in dismissing the action against Metro, given that Metro did not participate in the motion and that the claim against it is based on alleged misrepresentations contained in a booklet produced by Metro explaining the Policy. We agree. The nature of the claim against Metro is different from the contractual claim asserted against Desjardins and it was not open to the motion judge to dismiss the action against it.

[11] The appeal is dismissed, except to the extent that the dismissal of the action against Metro is set aside. As agreed between the parties, Desjardins, as the successful party, is entitled to its costs of the appeal, fixed at $9,500 inclusive of fees, disbursements, and applicable taxes.

“John Laskin J.A.”

“C.W. Hourigan J.A.”

“David Brown J.A.”