COURT FILE NO.: CV-10-099223-00
DATE: 20121214
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: FREDERICK SMITH, Plaintiff
AND:
ANDREA SMITH, ENTERPRISE RENT-A-CAR CANADA LIMITED AND HER MAJESTY THE QUEEN IN RIGHT OF THE PROVINCE OF ONTARIO, REPRESENTED BY THE MINISTER OF TRANSPORTATION FOR THE PROVINCE OF ONTARIO, Defendants
BEFORE: THE HONOURABLE MR. JUSTICE J.R. McCARTHY
COUNSEL: J. Nisker, for the Plaintiff
E. Pullan, for the Defendant, Enterprise Rent-A-Car Canada Limited
HEARD: by written submissions
ENDORSEMENT
[1] On October 16, 2012 I released my decision on this motion. The defendant Enterprise Rent-A-Car was partially successful only. It succeeded in obtaining partial summary judgment on that aspect of the plaintiff’s claim related to alleged defects in the rented Nissan. It did not succeed in obtaining an order dismissing the plaintiff’s claim against it for vicarious liability arising out of the operation of the vehicle by the co-defendant Andrea Smith. Accordingly, Enterprise remains in the action.
[2] I accept that Enterprise, in light of its present non-exposure, may not take an active role in defending the action going forward. However, Enterprise remains a party defendant and retains full rights to protect its interests throughout and to seek costs of the action, pre and post motion, upon the disposition of the matter on its merits.
[3] The majority of the materials submitted and the bulk of oral argument before me centred on the vicarious liability aspect of the plaintiff’s claim. Enterprise did not succeed on that aspect of the motion.
[4] In light of the divided success on the motion, it is appropriate that the parties should bear their own costs of the motion. I exercise my discretion therefore, to award no costs to either party.
McCARTHY J.
Date: December 14, 2012