Court of Appeal for Ontario
Date: 2019-02-12
Docket: C64375 & C65014
Panel: Doherty, Simmons and Pardu JJ.A.
Parties
Between
Ruo Hang Liu Plaintiff (Respondent)
and
The Personal Insurance Company, Trevor James Middleton and Linda-Sue Pearce Defendants (Appellant / Respondent)
and
Nicholas Perry and Shiv Kumar Third Parties
Counsel
Jeffrey R. LeRoy, for the appellant
Brian Cameron, for the respondent Shayne Berwick, plaintiff in actions CV-08-090129-00, CV-09-387093 and CV-13-114389-00
Louis Covens, for the respondent The Personal Insurance Company
Luke Hamer, for the respondent Ruo Hang Liu
Heard: January 30, 2019
On appeal from: the orders of Justice Phillip Sutherland of the Superior Court of Justice, dated July 11, 2017 and January 12, 2018, with reasons reported at 2017 ONSC 4232, [2017] I.L.R. I-5985, and 2018 ONSC 324.
Reasons for Decision
Background
[1] Ms. Pearce appeals from the motion judge's refusal to allow her to withdraw an admission made by her during the argument of a summary judgment motion. The focus of the summary judgment motion was whether the appellant was the actual owner, as well as the registered owner, of a Ford truck driven by her son when it was involved in a collision.
[2] The appellant's son, Trevor Middleton, was convicted by a jury of criminal negligence causing bodily harm and aggravated assault as a result of his actions in deliberately ramming a Honda Civic. There were four occupants of the Honda, including the driver Ruo Hang Liu.
[3] Shayne Berwick, one of the occupants of the Honda who was injured in the collision, brought three lawsuits, including one against both drivers and the alleged owners of both vehicles. Mr. Liu sued his own insurer, The Personal Insurance Company ("Personal"), claiming relief against Personal in the event that the parties legally responsible were uninsured or underinsured. The appellant was insured by a policy issued by Wawanesa Insurance ("Wawanesa").
[4] The motion judge found that the appellant was the actual owner of the Ford truck. The appellant takes no issue with this finding. It was agreed at the time of the motion that this conclusion would bind the parties in all of the actions. In the course of the argument of the motion, all parties, including the appellant, agreed that if the appellant was the owner of the truck, Wawanesa would respond to the claim, and that because the limits of both the Personal and Wawanesa policies were the same, the action against Personal could be dismissed.
[5] The motion judge accordingly dismissed the action against Personal. After his decision was released, the appellant moved to withdraw her agreement to the effect that if she were found to be the owner of the truck, she would be liable under s. 192(2) of the Highway Traffic Act, R.S.O. 1990, c. H.8, for the losses caused by her son's driving.
The Appellant's Position on Withdrawal
[6] In written submissions made to the motion judge, the appellant's counsel stated:
It was not my intent, thought or wish, as the argument revolved around the ownership issue, to concede that the defendant, Pearce, will be vicariously liable with her policy with Wawanesa in play if Middleton is not found to be driving negligently on September 16, 2007; or, in other words, it was not my intent, thought, or wish to concede that the defendant, Pearce, will be vicariously liable if Middleton is found to be driving with an intent to injure others.
[7] Subsection 192(2) of the Highway Traffic Act provides as follows:
The owner of a motor vehicle or street car is liable for loss or damage sustained by any person by reason of negligence in the operation of the motor vehicle or street car on a highway, unless the motor vehicle or street car was without the owner's consent in the possession of some person other than the owner or the owner's chauffeur. [Emphasis added.]
[8] The appellant wished to argue that this section made her vicariously liable for the negligent driving of her son, but not for intentional assaults using a vehicle. She asked the motion judge for an amendment to qualify the dismissal of the action against Personal by adding that the dismissal was operative only if she was found vicariously liable pursuant to s. 192(2) of the Highway Traffic Act because of her son's negligence.
Motion Judge's Decision
[9] The motion judge rejected the appellant's request to withdraw her agreement. He concluded that her son's criminal conviction for criminal negligence conclusively established that he was negligent, and that the appellant as owner was therefore liable pursuant to s. 192(2) of the Highway Traffic Act.
[10] In the alternative, the motion judge indicated that he would not exercise his discretion to allow the appellant to withdraw her admission because no reasonable explanation for the proposed withdrawal from the agreement was given, and because the appellant had never pleaded that she was not liable for the intentional acts of her son. He noted that she was aware of the nature of her son's driving, and concluded that a change in strategy and defence position did not qualify as a reasonable explanation that would allow her to withdraw her admission.
Arguments on Appeal
[11] The appellant argues that the motion judge erred in finding that the criminal conviction for criminal negligence foreclosed an argument that her son's acts were intentional and not negligent. She points out that her son was also convicted of aggravated assaults because of his driving. The torts of negligence and battery are not mirrored perfectly by criminal negligence, which requires a marked and substantial departure from the conduct expected of a reasonable driver, and aggravated assault, requiring an intention to apply force where that application of force results in specified injuries. The appellant wishes to argue at trial that s. 192(2) of the Highway Traffic Act makes her vicariously liable only for negligence, not intentional torts.
[12] Further the appellant argues that the motion judge erred by applying a stricter test applicable to the withdrawal of admissions in pleadings, rather than a test more appropriate for the withdrawal of an admission made in the course of argument.
[13] The motion judge applied a test drawn from Antipas v. Coroneos, 26 C.P.C. (2d) 63 (Ont. H.C.) and Szelazek Investments Ltd. v. Orzech, 44 C.P.C. (3d) 102 (Ont. C.A.):
(a) is the admission one of purely fact, law, or mixed fact [and] law? A court would be more likely to exercise its discretion if the admission is a pure question of law that is incorrect than an admission which is only factual or of mixed fact and law;
(b) does the proposed amendment raise a triable issue in respect to the truth of the admission?;
(c) is there a reasonable explanation for the withdrawal, such as inadvertence or wrong instructions?; and,
(d) has the party wishing to withdraw the admission established that the withdrawal will not result in any prejudice that cannot be compensated for in costs?
[14] The appellant submits that the motion judge should have applied the test for withdrawal of admissions described in Serra v. Serra, 2009 ONCA 105, 93 O.R. (3d) 161, at para. 114, that an admission of mixed fact and law may be withdrawn "if, in all the circumstances, there is a triable issue that ought to be tried in the interests of justice rather than left to an admission of fact". The appellant also relies on Patterson v. Scherloski, [1971] 3 O.R. 753 (H.C.), at p. 757, where the court stated that "[t]he discretion of the Court ought to be warily exercised, normally, to defeat fiction, to help establish truth, and to relieve clients of fatal mistakes by lawyers."
Analysis
[15] The appellant does not seek an order from this court setting aside the dismissal of the action against Personal. Rather, she claims relief potentially limiting only her own liability, as requested in paragraphs 62(1)-(3) of her factum:
The appellant, Linda-Sue Pearce, is only vicariously liable for the defendant, Trevor James Middleton's driving on September 16, 2007 if Middleton was driving negligently;
Pearce's admission in her submissions to Sutherland J. on June 9, 2017 is restricted to the following: Pearce is only vicariously liable for Middleton's driving on September 16, 2007 if Middleton was driving negligently;
Withdrawal of Pearce's admission that she is vicariously liable without qualification for Middleton's driving on September 16, 2007;
[16] If the appellant were successful in the arguments she proposes to make, she would not be vicariously liable, and Wawanesa would not be liable to pay the loss. However, Personal would not be available to respond to the loss caused by an uninsured or underinsured driver because the action has been dismissed against Personal as a result of the appellant's admission before the motion judge. This amounts to prejudice to other injured parties who might wish to have resort to that policy. That prejudice cannot be remedied by an order for costs. This and the other factors listed by the motion judge are relevant to the inquiry as to whether the interests of justice favour allowing a withdrawal of the admission. Under these circumstances, we agree that the interests of justice do not require that the appellant be allowed to advance her proposed arguments. The appellant should not be permitted to withdraw her admission.
[17] We express no opinion about the viability of the appellant's argument that s. 192(2) of the Highway Traffic Act does not make owners vicariously liable for intentional torts committed by a driver.
Disposition
[18] Accordingly, the appeal is dismissed, with costs to each of The Personal Insurance Company and Shayne Berwick in the agreed sum of $4,000 inclusive of HST and disbursements, for a total of $8,000.
"Doherty J.A."
"Janet Simmons J.A."
"G. Pardu J.A."