CITATION: 2011 ONSC 3192
COURT FILE NO.: 08-01528, Appeal No: DC-10-231,
DATE: 2011-05-30
SUPERIOR COURT OF JUSTICE – ONTARIO – Divisional Court
RE: Kiera Hammond, Appellant
-and-
State Farm Mutual Automobile Insurance Company, Respondent
BEFORE: Reid, J.
COUNSEL: Jane Paproski, for the Appellant
Joseph Sullivan, for the Respondent
HEARD: Motion Heard May 16, 2011
E N D O R S E M E N T
[1] The Appellant seeks an Order, pursuant to section 110 of the Courts of Justice Act, transferring this appeal to the Ontario Court of Appeal. The motion comes before me sitting as a single judge of the Divisional Court. For the reasons set out below, the motion is dismissed.
[2] The facts are not in dispute.
[3] The action was dismissed by Arrell J. by judgment dated July 27, 2010 following a motion for summary judgment.
[4] A Notice of Appeal was served on August 12, 2010 but mistakenly filed in the Divisional Court rather than in the Ontario Court of Appeal.
[5] The parties acknowledge that the Divisional Court derives its jurisdiction from statute and agree that it has no jurisdiction to hear this appeal since the subject matter of the action falls outside the monetary limits of section 19 (1.2)(c) of the Courts of Justice Act.
[6] Counsel for the Respondent advised counsel for the Appellant by e-mail on September 28, 2010 that he considered the matter to be in the wrong court. For reasons that were not explained, but which presumably relate to inadvertence, the e-mail did not come to the attention of the appropriate person in the office of Appellant's counsel in a timely way with the result that it was not until February 2011 that the jurisdictional error was acknowledged by the Appellant. Thereafter, counsel for the Appellant moved expeditiously to deal with the issue.
[7] If the Notice of Appeal had been filed in the Court of Appeal, that court would be dealing with the appeal on its merits in due course, since appeal is as of right.
[8] Counsel agreed that I should direct myself to the criteria set out by Rosenberg J. (as he then was) in Dunnington v. 656956 Ontario Ltd. (1992) 90 OR (3d) 124. That decision, which has been followed by subsequent Divisional Court panels, states that in exercising discretion under section 110 of the Courts of Justice Act to transfer a file to the Court of Appeal in a case where the Divisional Court does not have jurisdiction to hear the matter, there are three criteria to be considered, namely:
(a) Does the Appellant have a meritorious appeal?
(b) Will the respondent suffer undue prejudice as a result of further delay while the appeal is waiting to be heard by the Court of Appeal?
(c) Has the Appellant moved expeditiously once it was known that the jurisdiction was being disputed.
[9] The first criterion of the three presumably is designed to avoid wasting judicial resources at the Court of Appeal on cases that have little chance of success even though, but for the filing error, that “gatekeeper” function would not otherwise exist. The second criterion deals with fairness to the Respondent, and the third relates to the court’s responsibility to manage its process.
[10] There is no evidence of any undue prejudice to the Respondent that might occur while the appeal is pending if the jurisdictional change is granted. Counsel for the Appellant indicates that she is prepared to proceed without delay to perfect the appeal. The time anticipated to bring the matter to a hearing at the Court of Appeal is not significantly different from the time that could be anticipated for scheduling a hearing before a panel of the Divisional Court. This case is unlike Dunnington and the cases that follow it where the matters had already been dealt with at a hearing in Divisional Court so that the transfer to the Court of Appeal was adding a further period of delay.
[11] As noted above, counsel for the Appellant moved expeditiously once the jurisdictional dispute became known to her. The inadvertent gap of about five months between receipt of the e-mail from Respondent’s counsel and the Appellant’s response, while significant, was not so great as to override the general mandate described in Rule 1.04 of the Rules of Civil Procedure which requires a liberal construction of the Rules to secure the "just, most expeditious and least expensive determination of every civil proceeding on its merits."
[12] Before deciding the issue of whether or not the Appellant has a meritorious appeal, I must determine what that test means. It is not the function of this court to predict the ultimate outcome of an appeal on the merits. That would usurp the role of the Court of Appeal and could not have been what the court in Dunnington intended. Therefore to be “meritorious” must mean that the Appellant has an arguable case that could reasonably, but not necessarily be successful. I have reviewed the matter in that fashion, and considered the Appellant’s case in light of the two key conclusions of Arrell J. in dismissing the action.
[13] According to the Appellant, the appeal raises a novel point of law which should be dealt with by the Court of Appeal, the result of which could be significant not just for the Appellant but for the personal injury bar in Ontario.
[14] The substance of the Appellant’s claim attempts to relate the Ontario Court of Appeal decision in McArdle v. Bulgar (2007) ONCA 659 to this case. McArdle dealt with a plaintiff’s entitlement to statutory uninsured motorist coverage. That case reviewed the extended definition of "insured" in section 224 of the Insurance Act which applied to "every person who is entitled to statutory accident benefits under the contract, whether or not described as an insured person." Since the plaintiff in that case was entitled to accident benefits, she was found to be an “insured” under s. 224 which informed the narrower definition of “person insured under the contract” in s. 265, and was therefore entitled to payment through the uninsured motorist coverage.
[15] In the case at bar, the Appellant contends that a similar reasoning should apply to her situation. The Appellant was a passenger in a vehicle involved in a collision. The other vehicle was insured (but underinsured), and payments to the maximum policy limits were made to the Appellant and two other injured parties, pro-rata in 2004.
[16] The Appellant has continued to receive Statutory Accident Benefits through the insured’s policy. She claims that she should be entitled to receive the underinsured benefits available under the optional Family Protection Coverage (OPCF 44) as well. The Appellant claims that she is an "eligible claimant" under OPCF 44, which means she must be either an “insured person” or another person who is entitled to maintain an action because of an injury to an insured person. An “insured person” under OPCF 44 is defined as a named insured under the policy. The Appellant does not meet these criteria but claims that since she is an “insured” under s. 224 (by virtue of McArdle), and since s. 226 requires that the Insurance Act provisions take precedence when there is a conflict with an insurance contract, she is entitled to coverage. Arrell J. determined on the summary judgement motion that there was a distinction between optional and statutory coverage and that the Appellant was not an “insured person” such that she would fall within the OPCF 44 definition.
[17] Arrell J. found an additional rationale for dismissing the action in that the applicable limitation period had expired no less than ten, and possibly twenty-two months prior to the commencement of the claim. Counsel for the Appellant argued before me that the potential claim was only “discovered” once the McArdle decision was released in 2007 and that as a result the limitation period in effect was extended. I was not presented with any case law that would justify such a conclusion. Assuming that the McArdle decision applies by analogy, in effect the Appellant is saying that she has been alerted to a potential statutory interpretation that might change pre-existing assumptions. If that was the case, it seems to me that a great many statute-barred cases could be resuscitated by subsequent statutory interpretations, with the result that the certainty offered as a matter of public policy by the Limitations Act 2002 would be subverted.
[18] A previous claim issued by the Appellant in 2002 on the same basis as this claim was dismissed on a motion for summary judgment in 2003, without opposition from the Appellant on the basis that there was no sustainable cause of action.
[19] Applying Dunnington, while I consider the argument about statutory interpretation under the Insurance Act to be of at least arguable merit, I am not able to determine that the appeal is meritorious in view of the limitations period issue which appears conclusive in favour of the Respondent. As a result, this motion for transfer to the Court of Appeal is dismissed.
[20] If the parties are not able to resolve the question of costs of the motion, I may be spoken to on that issue.
Reid, J.
DATE: May 30, 2011
COURT FILE NO.: 08-01528, Appeal No: DC-10-231
DATE: 2011-05-27
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Kiera Hammond, Appellant
-and-
State Farm Mutual Automobile Insurance Company, Respondent
BEFORE: Reid, J.
COUNSEL: Jane Paproski for the Appellant
Joseph Sullivan, for the Respondent
ENDORSEMENT
Reid, J.
DATE: May 30, 2011