Court File and Parties
Court of Appeal for Ontario Date: 20231027 Docket: COA-23-CV-0336
Doherty, Nordheimer and George JJ.A.
Between:
Gamma Construction Ltd. Applicant (Appellant)
And:
Sandra Graham, Matthew Graham, Simone Thomas, Girline Smikle, Patrina Thomas, Edward Thomas, Sherica Thomas Washington, Evet Fonglyewquee and Thia Fonglyewquee Respondents (Respondents)
Counsel: Dennis Ong and Cailyn Prins, for the appellant H. Jason Hickman, for the respondents
Heard and released orally: October 19, 2023
On appeal from the judgment of Justice William S. Chalmers of the Superior Court of Justice, dated February 15, 2023.
Reasons for Decision
[1] We do not see any error in the application judge’s conclusion.
[2] The application judge applied the proper test, namely Amos v. The Insurance Corp. of British Columbia, [1995] 3 S.C.R. 405. He concluded that, on the second part of that test, causation was not made out. His conclusion in that regard, that the use of the automobile as it related to the injuries was merely incidental or fortuitous, is unassailable.
[3] We note this causation finding relates only to the proper application of the relevant section of the Insurance Act. It does not in any way relate to whatever liability findings might ultimately be made at trial.
[4] In light of that conclusion, it is unnecessary to deal with the protected defendant argument or the related vicarious liability issue.
[5] The appeal is dismissed with costs to the respondents fixed in the agreed amount of $15,000 inclusive of disbursements and HST.
"Doherty J.A."
"I.V.B. Nordheimer J.A."
"J. George J.A."