Court of Appeal for Ontario

Date: 2017-07-21 Docket: C62857

Judges: Sharpe, Lauwers and Roberts JJ.A.

Between

Yasmin Jaffer and Alnoor Pardhan Plaintiffs (Appellants)

and

Naureen Pardhan, Yasmin Jaffer and Y.Y. Annette Choy Defendants (Respondents)

Counsel

Ian Furlong, for the appellants

Brendan Haynes and Benjamin Lee, for the respondent, Yasmin Jaffer

Heard and released orally: July 18, 2017

On appeal from: the judgment of Justice P.W. Sutherland of the Superior Court of Justice, dated October 5, 2016.

Reasons for Decision

[1] The appellant Yasmin Jaffer appeals a summary judgment dismissing her claim against herself for statutory vicarious liability as the owner of the vehicle involved in an accident in which she suffered personal injury.

[2] The appellant's claim is based on the deemed statutory liability imposed by the Highway Traffic Act, R.S.O. 1990, c. H.8 (the "Act"), s. 192(2) on the owner of the vehicle.

[3] The appellant was a passenger in the vehicle she owned that was being driven with her consent by her daughter at the time of the accident. In asserting a claim against herself as the vehicle's owner, she relies on a line of authority holding that s. 192(2) of the Act confers a statutory right that overcomes the common law rule that a person cannot sue him or herself: see Dionisi v. Dionisi (1983), 42 O.R. (2d) 597.

[4] In her statement of claim, the appellant pleads that the accident occurred "in the laneway of a private property parking lot located at 7970 Kennedy Road, in the Town of Markham, in the Regional Municipality of York ('the parking lot')".

[5] The motion judge granted summary judgment dismissing the claim on the ground that the accident did not occur on a "highway" as defined in the Act and that accordingly s. 192(2) of the Act had no application.

[6] On this appeal, the appellant seeks to introduce fresh evidence indicating that the accident occurred at the Unionville GO Station parking lot and that, as the parking lot and the laneway are used by the general public, there is a triable issue as to whether the Act applies.

[7] In our view, the motion to admit fresh evidence must be dismissed for the following reasons.

[8] First, it is inconsistent with the position taken by the appellant in her statement of claim.

[9] Second, the evidence clearly could have been available at the time the motion for summary judgment was heard. We do not accept the position of the appellant that the evidence should be admitted on appeal on the ground that she was taken by surprise when this issue was raised on the summary judgment motion. The issue arose entirely because of the appellant's own pleading and the motion judge cannot be faulted for deciding the case on the basis of a point that was raised at the motion.

[10] Finally, we note that the appellant did not bring the proposed fresh evidence forward by following the prescribed procedure of bringing a motion to adduce fresh evidence but rather simply included the affidavits relied on in the Exhibit Book.

[11] We add that given the involvement of the two fully insured defendants, the fact that the appellant did attempt to sue herself, and the availability of underinsured coverage, it is difficult to see how the appellant would suffer any practical prejudice from having the claim against herself dismissed at this point.

[12] Accordingly, the appeal is dismissed.

[13] Costs to the respondent fixed in the amount agreed to by the parties, namely $7,500, inclusive of taxes and disbursements.

Robert J. Sharpe J.A. P. Lauwers J.A. L.B. Roberts J.A.