ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CV-09-371270
(Toronto)

DATE: 20120207

BETWEEN:

JONATHAN BROWN, CLAUDETTE BROWN, IAN BROWN and RACHEL BROWN, a minor, by her litigation guardian Claudette Brown
Plaintiffs

– and –

VINCENT CAPPUCCITTI, SYLVIA CAPPUCCITTI, DANNY CAPPUCCITTI, ONTARIO POTATO DISTRIBUTION (ALLISTON) INC. 1991 and THE PERSONAL INSURANCE COMPANY
Defendants

Daniel Czutrin, for the Plaintiffs

S. Wayne Morris, for the Defendant Personal Insurance Company

Vanda A. Santini, for the Defendant Ontario Potato Distribution (Allison) Inc.

Alan L. Rachlin, for proposed statutory third party, Aviva Canada Inc.

HEARD: February 1, 2012

J.S. O’Neill

REASONS ON MOTION

[ 1 ] On this motion, I am required to review the pleadings, and to answer, if possible the two questions framed by the Moving Party. When reviewing the pleadings in the amended Statement of Claim, particularly in paragraphs 13, 14 and 15, I accept that I am to follow the framework outlined by Iacobucci, J., at paragraphs 50, 51 and 52 of the Scalera decision [2000] 1. S.C.R. 551. Scalera was a sexual assault case. In the present case, the damages and injuries were caused or occasioned through the use and operation of a motor vehicle.

[ 2 ] Both intentional driving acts (paragraph 15) and negligent driving acts (paragraph 15) are set out in the amended Statement of Claim. Vincent Cappuccitti pleaded guilty to dangerous driving contrary to s. 249 of the Criminal Code . At paragraph 25 of its factum, the Personal Insurance Company reproduced portions of the decision in R v. Beatty where, at paragraph 20, Justice Charron (as she then was) wrote:

“It is well established that dangerous driving is based on a form of negligent conduct.”

[ 3 ] At paragraph 47, she stated:

“...it is not necessary for the Crown to prove that the accused had a positive state of mind, such as intent, recklessness or wilful blindness...”

[ 4 ] On my review of the pleadings and my knowledge that a conviction was entered for dangerous driving, I am unable to conclude at this juncture that the driver in question possessed the necessary or requisite intent, as opposed to a degree or degrees of negligence, to bring about the loss or damage on the date in question. Stated simply, I cannot, at this time choose, analyse or determine with certainty whether the mix of pleadings with respect to negligence or intentional acts are more properly characterized as being primarily one, rather than the other. In my view, to determine this issue at this early stage in the action, without additional information that might come to light, could render a possible injustice to some of the parties.

[ 5 ] I agree with counsel for the Personal Insurance Company that in effect, the motion is premature and that in any event, question one and possibly question two cannot be answered at this time.

[ 6 ] Accordingly, the motion is dismissed but without prejudice to return it to the court if the moving party deems it appropriate at a later date convenient to the parties. In so dismissing the motion, I would indicate again that the pleadings as framed, measured against the occurrence itself, and the plea of guilty to dangerous driving, certainly leave available arguments with respect to why and how negligent driving may have caused damages and loss in this case, as opposed to only intent to bring about such loss or damages.

[ 7 ] The Responding parties are entitled to their costs of this motion on the partial indemnity scale. Unless agreed to by the parties, I will fix those costs upon receipt of a bill of costs and submissions from the parties not to exceed 10 pages. Costs submissions to be filed by the Responding parties by February 27, 2012 and a response to be filed by the moving party by March 5, 2012. Documentation to be filed with the Trial Coordinator’s office at Parry Sound (fax 705-746-6189).

[ 8 ] Order Accordingly.

Justice J.S. O’Neill

Released: February 7, 2012

ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: JONATHAN BROWN, CLAUDETTE BROWN, IAN BROWN and RACHEL BROWN, a minor, by her litigation guardian Claudette Brown Plaintiffs – and – VINCENT CAPPUCCITTI, SYLVIA CAPPUCCITTI, DANNY CAPPUCCITTI, ONTARIO POTATO DISTRIBUTION (ALLISTON) INC. 1991 and THE PERSONAL INSURANCE COMPANY Defendants reasons on motion Justice J.S. O’Neill

Released: February 7, 2012