Guadagno v. Chancey, 2015 ONSC 2237

CITATION: Guadagno v. Chancey, 2015 ONSC 2237

COURT FILE NO.: 07-CV-9640CM

DATE: 20150408

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

David Guadagno, by his Litigation Guardian, Maria Marusic, Margherita Altobelli, Giovanni Guadagno and Madeline Guadagno

Plaintiffs

– and –

Jessica Chancey, Alberto Ham-Chi Operating as Acapulco Delight Restaurant, Tom Wesolowski, Dariusz Wesolowski and Jozef Wesolowski, Paul Erdman, and Alex Marinello

Defendants

Giovanni Guadagno, acting in person

Kevin C. Bunt, for the Defendant, Paul Erdman

HEARD: March 19, 2015

REASONS FOR SUMMARY JUDGMENT

Carey J.:

[1] Approximately ten years ago, in August 2005, after a night of drinking and drug use, David Guadagno (“David”) drove a car owned by Paul Erdman through a stop sign at an intersection in Harrow, into the side of another vehicle at a very high speed. As a result of this accident he suffered catastrophic injuries and is no longer competent. Today he resides in Italy with his mother and his sister. He is receiving 24-hour care which is funded through his own insurance company. He is now 45 and will never be able to live on his own or work again. His claim and that of his mother and sister were recently settled and his claim dismissed by order of Campbell J. The claims, which were for approximately $15 million, were settled for $50,000, inclusive of costs. David’s father, Giovanni Guadagno (“Giovanni”), and his mother, Margherita Altobelli, are divorced and have been at odds over David’s care and who should be his attorney and litigation guardian since his accident. Giovanni refused to consent to the settlement and the dismissal. As a result, counsel for Paul Erdman who leased this BMW SUV on behalf of Alex Marinello, bring their second motion for summary judgment. They rely on the material change in the circumstances with the dismissal of the primary action and the admissions as to the viability of the main action contained in the affidavits of Celina DeVuono and Claudio Martini that were before Campbell J. They say it is now clear that s. 192 of the Highway Traffic Act, R.S.O. 1990, c. H.8 (“HTA”) does not apply to make either Paul Erdman or Alex Marinello vicariously liable for the negligence in the operation of the vehicle in this case as there is no evidence of any persons’ negligence other than the plaintiffs’ and the section should not operate to instill liability in the owner of a vehicle where the plaintiff is 100 per cent liable. They also argue that the derivative nature of the plaintiff Giovanni’s Family Law Act claim means that it cannot survive the dismissal of the main action.

[2] Giovanni also lives primarily in Italy and through an interpreter told the court of his reasons for opposing the dismissal of his claim. He did not file any material and has not been represented by counsel in a little over two years. It is clear that he feels that he was not well served by previous counsel and that counsel acted in conflict of interest in assisting his former wife in becoming the litigation guardian. He told the court about the legal proceedings in Italy and his inability to see his son for some time due to the dispute between himself and his ex-wife. He feels that he should be the power of attorney for his son and that he should have been the litigation guardian on this matter. His submissions did not seem to take issue with the $50,000 settlement but that there should have been a different distribution of the proceeds.

[3] The moving party defendants’ material did not indicate that a previous summary judgment motion had been dismissed by Pomerance J. in This Court. However information was found in the affidavit and material attached to the motion record before Campbell J., on February 24, 2015, which the moving party brought to the court’s attention. The same argument that is made today concerning the applicability of s. 192 to the HTA was before Pomerance J. on August 24, 2009. She dismissed the motion as a novel legal argument existed which was not almost certain to fail: see Endorsement of Pomerance J., dated August 28, 2009, attached as Appendix “A”.

[4] It is highly unusual to see a second motion for summary judgment following a dismissal. Here, however, the circumstances have changed as the counsel that resisted the first motion has concluded that the chance of success of the plaintiffs at trial “is unlikely”.

[5] It is clear from the material before Campbell J. that after the dismissal of the motion counsel for the plaintiffs were unable to find witnesses to support their theory and were faced with the inability of their severely injured plaintiff to remember the events of the day.

[6] It is clear to me that this matter has settled for what is clearly a nuisance value to the defendant insurers. Given the admissions in the statement of claim and the conclusions of counsel for the plaintiffs, I agree with the conclusion of Celina DeVuono which was accepted by Campbell J. in approving the settlement of David, a person under disability. The inability to prove the theory of the plaintiffs as set out in the statement of claim is a material change from the circumstances that were in front of Pomerance J. The lack of witnesses and evidence make it clear now that the claim based under s. 192 of the HTA of Ontario alleging negligence that Mr. Erdman is in law responsible for has no likelihood of success.

[7] I further agree that the law is clear that a derivative claim such as the claim of Giovanni pursuant to the Family Law Act “does not have a legal life of its own”. As stated by Tausendfreund J. in McRitchie v Natale, [2011] O.J. No. 2489, at para. 15:

Such a claim is a derivative right and subject to the entitlement of the injured person personally to maintain an action for damages in the circumstances alleged in the statement of claim: See Drummond Estate v. Reid Estate, 1993 CanLII 5482 (ONSC) at para. 17, Von Cramn v. Riverside Hospital of Ottawa et al, 1986 CanLII 2584 (ON CA), [1986] O.J. No. 999 at para. 11 and Smith et al v. College of Physicians and Surgeons 1998 CanLII 1523 (ONCA) para. 38.

[8] As the court went on to say in the McRitchie decision, a consent order as was entered in the main litigation that ends part of an action “is of the same strength and effect for purposes of the res judicata doctrine as a judgment issued by the court on completion of a trial or hearing . . .”. I do not find it significant that there was a small settlement that was approved by the court in the dismissal of the action. The settlement was clearly entered into on an economic basis by the defendants. The nuisance value payment does not change the fact that the claim on any objective view had no chance of success, and thus pursuant to r. 20.04 I am satisfied that summary judgment should issue as there is no genuine issue requiring a trial with respect to the plaintiff, Giovanni Guadagno’s family law claim.

[9] The issues that Mr. Guadagno has with former counsel and his ex-wife do not constitute a reason to deny the defendant, Paul Erdman, closure in this matter.

[10] As to costs, the moving party has submitted a costs outline requesting total costs of $17,306.52. It is clear to me that Mr. Guadagno was confused about the nature of today’s hearing, had not been able to retain a lawyer and services of an interpreter prior to the motion. Mr. David Deluzio, a lawyer, who appeared as a friend of the court, indicated concerns about some cognitive impairments and language difficulties that made it difficult for Mr. Guadagno to understand the circumstances. Additionally, I am satisfied on the evidence before me, some of it supplied by the moving party, that Mr. Guadagno has no assets in this country or likely in Italy and any costs order would only be effective to discourage an appeal. That consideration is not an appropriate one for me under Rule 57 and accordingly there will be no order as to costs.

Original signed “Carey J.”

Thomas J. Carey

Justice

Released: April 8, 2015