COURT FILE NO.: CV-09-383809
DATE: 20180406
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
TIMOTHY BONELLO, TED BONELLO, ANNE CUTAJAR WAGNER, ANDREW BONELLO and MARK BONELLO
Plaintiffs
– and –
GORES LANDING MARINA (1986) LIMITED, JOSEPH DAVIES, and MURRAY E. CARSLAKE and JOSEPH DAVIES JR. also known as JOEY DAVIES
Defendants
Andrew C. Murray, for the Plaintiffs
R. Steven Baldwin, for the Defendants, Gores Landing Marina (1986) Limited and Joseph Davies
HEARD: February 22, 2018
REASONS FOR JUDGMENT
cavanagh j.
Introduction
[1] On August 4, 2007, the plaintiff Timothy Bonello put his left arm through a loop in a rope that was used for a recreational game of tug-of-war. With the commencement of the game, the loop tightened on Mr. Bonello’s arm, causing injury to his left forearm that required amputation. The game took place at a campground among a group of about forty men.
[2] Mr. Bonello sued Gores Landing Marina (1986) Limited (the “Marina”), the owner of the campground, and its principal, Joseph Davies Sr. Mr. Bonello later added the son of Mr. Davies Sr., Joseph Davies Jr., as a Defendant after learning of his role in finding the rope that was used for the game and making it available to the participants. The amended statement of claim asserts that the Marina and Mr. Davies Sr. are liable under the Occupiers’ Liability Act, R.S.O. 1990, c. O.2, and for common law negligence, and that they are also vicariously liable for the negligent actions of Mr. Davies Jr.
[3] The action was dismissed against the defendant Murray Carslake by order dated January 3, 2012. Mr. Davies Jr. did not defend the action, and he has been noted in default. The plaintiffs, other than Timothy Bonello, are not pursuing their claims.
[4] The Marina and Mr. Davies Sr. issued a third party claim against nine men who were cottagers, campers or visitors at the campground and who had participated in the tug-of-war game. In their third party claim, the Marina and Mr. Davies Sr. seek full contribution and indemnity for any and all amounts which may be found owing by these defendants to Mr. Bonello.
[5] The Marina and Mr. Davies Sr. brought a motion for summary judgment dismissing the action as against them that was heard and decided in August 2016. Six of the third parties had also moved for summary judgment dismissing the third party claim for contribution and indemnity as against them. The third parties’ motion for summary judgment was scheduled to be heard, if necessary, following release of a decision on the motion for summary judgment by the Marina and Mr. Davies Sr.
[6] On August 25, 2016, the motion judge granted the motion for summary judgment brought by the Marina and Mr. Davies Sr. The motion judge dismissed the action against the Marina and Mr. Davies Sr., and also dismissed the third party claim for contribution and indemnity.
[7] Mr. Bonello appealed from the motion judge’s judgment to the Court of Appeal. On August 2, 2017, the Court of Appeal allowed his appeal and set aside the judgment. The Court of Appeal held that the motion judge had erred in excluding certain discovery evidence from his consideration, and that the excluded discovery evidence established that the vicarious liability of the Marina and Mr. Davies Sr. for any negligence on the part of Mr. Davies Jr. was a genuine issue requiring a trial. The Court of Appeal set aside the motion judge’s judgment.
[8] In his reasons at paragraph 40, Lauwers J.A., for the court, wrote that he would “leave the parties free to pursue their claims including, if so advised, other motions for summary judgment, without being bound by any of the determinations made in the decision under appeal.”
[9] Following the Court of Appeal’s decision, the Marina and Mr. Davies moved again for summary judgment dismissing Mr. Bonello’s claim as against the Marina and Mr. Davies Sr. This motion is before me. I also heard motions by six of the third parties for summary judgment dismissing the third party claim against each of them. My decision on the third parties’ motions for summary judgment is being released separately.
[10] For the following reasons, I conclude that the moving parties are precluded by operation of the doctrine of issue estoppel from moving a second time for summary judgment dismissing Mr. Bonello’s claims.
Analysis
[11] In response to this motion, Mr. Bonello submits:
a. The moving parties are precluded by the issue estoppel form of res judicata from moving for summary judgment a second time.
b. Alternatively, the moving parties have failed to discharge their onus of showing that there is no genuine issue requiring a trial.
Mr. Bonello asks that the motion for summary judgment be dismissed.
Are the moving parties precluded by the issue estoppel form of res judicata from moving for summary judgment a second time?
[12] The criteria that must be established in order for the issue estoppel form of res judicata to apply to preclude relitigation of a judicial decision are (1) that the same question has been decided, (2) that the judicial decision which is said to create the estoppel was final, and (3) that the parties to the judicial decision or their privies were the same persons as the parties to the proceedings in which the estoppel is raised or their privies: Danyluk v. Ainsworth Technologies Inc., 2001 SCC 44, [2001] S.C.J. No. 46 at para. 24.
[13] The moving parties submit that they are not precluded by the doctrine of issue estoppel from moving a second time for summary judgment for the following reasons:
a. When the motion was first heard by the motion judge, Mr. Bonello did not argue that the moving parties were vicariously liable for the actions of Mr. Davies Jr. (although this was pleaded). They submit that this is a question to be decided on the motion before me, and that this question was not one that was before the motion judge.
b. Mr. Bonello’s summary of the evidence of Mr. Davies Jr. that was excluded by the motion judge (and that the Court of Appeal described at para. 21 of its reasons as a fair summary) does not fully correspond with the actual evidentiary record, and the motion before me would be the first occasion on which the moving parties will have argued their motion for summary judgment based upon the actual evidentiary record.
c. Questions that are before me on this motion of whether the moving parties have shown that there is no genuine issue requiring a trial in relation to (i) whether Mr. Davies Jr. owed a duty of care to Mr. Bonello or, if a duty was owed, (ii) Mr. Davies Jr. breached his duty, were not argued before or decided by the motion judge or the Court of Appeal. The moving parties submit that the requirement for issue estoppel that the same question has been decided is not satisfied.
d. It would be unjust for the moving parties to be called upon to respond to the third parties’ motions for summary judgment in which the questions of whether the participants in the tug-of-war game owed a duty of care to Mr. Bonello or breached any duty of care are central, without having had an opportunity to argue that Mr. Davies Jr. did not owe a duty of care to Mr. Bonello and, if there was a duty of care, he did not breach this duty.
e. Lauwers J.A. wrote at paragraph 40 of his reasons that “I would ... leave the parties free to pursue their claims including, if so advised, other motions for summary judgment, without being bound by any of the determinations made in the decision under appeal.” The moving parties submit that the Court of Appeal expressly left it open to them to bring their motion for summary judgment a second time.
[14] I address each of these submissions in turn.
[15] With respect to the moving parties’ first submission, I do not accept that any failure of the parties to fully argue the vicarious liability issue before the motion judge is relevant to whether, based upon the decision of the Court of Appeal, issue estoppel applies to preclude the moving parties from moving for summary judgment a second time. The Marina and Mr. Davies Sr. rely upon the decision of the Court of Appeal as the judicial decision that gives rise to issue estoppel. Therefore, whether issue estoppel applies turns on the question decided by the Court of Appeal and not on the questions decided by the motion judge. I also note that Mr. Bonello’s counsel advised at the hearing of this motion that submissions were made in writing before the motion judge, through a supplementary factum, in relation to the issue of vicarious liability of the Marina and Mr. Davies Sr. for any negligence on the part of Mr. Davies Jr.
[16] With respect to the moving parties’ second submission, the Court of Appeal found that Mr. Bonello had fairly summarized the excluded evidence that was proffered in support of the argument that the Marina and Mr. Davies Sr. were vicariously liable for the actions of Mr. Davies Jr. The fact that the moving parties disagree with the Court of Appeal that the summary is accurate does not allow them to question this finding through a second motion for summary judgment (unless they are otherwise entitled to move for summary judgment a second time).
[17] The moving parties’ third submission is that their motion for summary judgment calls on me to decide whether they have shown that there are no genuine issues for trial in relation to questions that are fundamental to whether Mr. Davies Jr. was negligent: whether Mr. Davies Jr. owed a duty of care to Mr. Bonello and, if he did, whether he breached this duty. The moving parties submit that (i) the discovery evidence that the Court of Appeal held was admissible is now properly before me, and (ii) the issue of whether the moving parties are vicariously liable for any negligence on the part of Mr. Davies Jr. was not argued before the motion judge or at the Court of Appeal. They submit that, accordingly, the motion before me raises a different question than the one that was decided by the Court of Appeal.[^1] The moving parties submit that the first criterion for the application of the doctrine of issue estoppel, that the same question has been decided, has not been satisfied.
[18] The Marina and Mr. Davies Sr. submit that on this motion they are free to argue on the full evidentiary record that there is no genuine issue requiring a trial with respect to their vicarious liability for any negligence of Mr. Davies Jr., including (i) in respect to his relationship with the Marina and Mr. Davies Sr., and (ii) in respect to whether Mr. Davies Jr. owed a duty of care to Mr. Bonello and, if he did, whether he breached this duty. The moving parties submit, in the alternative, that if I were to conclude that they are precluded from relitigating whether there is a genuine issue for trial in relation to whether they are vicariously liable for any negligence on the part of Mr. Davies Jr. because of his relationship with the Marina and Mr. Davies Sr., they are, nevertheless, not precluded from arguing on the motion before me that there is no genuine issue for trial in relation to the questions of whether Mr. Davies Jr. owed a duty of care to Mr. Bonello or, if he did, whether he breached this duty.
[19] In order to address these submissions, I focus on the nature of the question that the Court of Appeal decided when it allowed the appeal and set aside the motion judge’s summary judgment. In respect of the liability issue, the Court of Appeal identified at paragraph 10 of its reasons the following issue to be decided on the appeal:
Did the motion judge err in concluding that there was no genuine issue requiring a trial in relation to the Marina and Mr. Davies Sr.?
[20] The Court of Appeal decided that the motion judge had so erred, and wrote at paragraphs 30 and 31 of its reasons:
[30] The excluded discovery evidence at issue established that the vicarious liability of the Marina and Mr. Davies Sr. for any negligence on the part of Mr. Davies Junior was a genuine issue requiring a trial. This triggered the motion judge’s discretion to consider exercising the powers in r. 20.04 as an alternative to a full trial or simply finding that a trial was required.
[31] By excluding from his consideration the evidence that purported to establish Mr. Davies Jr.’s negligence and the vicarious liability of the Marina and Mr. Davies Sr., the motion judge was left with the respondents’ bald assertions in the notice of motion for summary judgment that “Joseph Davies Jr. has no connection with Gores Landing”, and Mr. Davies Sr.’s affidavit that he was the only employee of the Marina. I note that embedded in this position is the erroneous legal proposition that the Marina and Mr. Davies Sr. could only be vicariously liable for the actions of Mr. Davies Jr. if he were an employee of the Marina. Vicarious liability can arise as a result of other less formal relationships, including agency, as the statement of claim alleges. (Emphasis added)
[21] The Court of Appeal, at paragraph 37 of its reasons, addressed whether the motion judge had failed to consider Mr. Bonello’s negligence claim at common law, and held that the motion judge’s reasons “do not address the possibility that the Marina and Mr. Davies Sr. could be vicariously liable for the actions of Mr. Davies Jr., who found the rope, provided it to the guests, and participated in the tug-of-war, and arguably should have foreseen the risk of injury arising from the use of the rope.”
[22] Through these passages, the Court of Appeal made it clear that its finding that the excluded evidence established that the vicarious liability of the Marina and Mr. Davies Sr. for any negligence on the part of Mr. Davies Jr. was a genuine issue requiring a trial was made upon consideration of evidence in relation to both (i) whether Mr. Davies Jr. was negligent, and (ii) whether the Marina and Mr. Davies Sr., because of their relationship with Mr. Davies Jr., are vicariously liable for his negligence.
[23] In V.K. Mason Construction Ltd. v. Canadian General Insurance Group Ltd., 1998 CanLII 14615 (ON CA), [1998] O.J. No. 5291, the Court of Appeal considered whether an order dismissing a motion for summary judgment was a final order that could be appealed to the Court of Appeal where the motion judge had made findings that, it was submitted, would bind the trial judge. In his reasons for deciding that the order was interlocutory and an appeal did not lie to the Court of Appeal, Finlayson J.A. addressed the issue estoppel form of res judicata in the context of a motion for summary judgment that is dismissed:
As to res judicata or issue estoppel in the context of a motion for summary judgment that is dismissed, I do not think that the motions court judge’s reasons should be taken as anything more than his explanation for finding that there is a genuine issue for trial. It is the finding that there is a genuine issue for trial that is res judicata.
[24] In order for me to decide the moving parties’ motion for summary judgment on its merits, I would need to decide whether they have shown that there is no genuine issue requiring a trial in relation to the vicarious liability of the Marina and Mr. Davies Sr. for any negligence on the part of Mr. Davies Jr. This is the same question that was decided by the Court of Appeal. The first criterion for issue estoppel is satisfied.
[25] The other two criteria for issue estoppel are also satisfied. The Court of Appeal’s decision that there is a genuine issue requiring a trial conclusively determined this question between the parties and it is final (in the sense in which this word is used in respect of issue estoppel: Donald J. Lange, The Doctrine of Res Judicata in Canada, Fourth Edition (LexisNexis Canada Inc., 2015), at pp. 89-95). As well, the parties to the appeal are the same as the parties on the motion before me in which issue estoppel is raised.
[26] With respect to the moving parties’ fourth submission, I do not consider the fact that (i) the third parties’ motions for summary judgment raise questions of whether the participants in the tug-of-war game owed a duty of care to Mr. Bonello and other participants, and whether any of the third parties may have breached a duty of care, and (ii) the moving parties wish to make submissions with respect to the same questions on their renewed motion for summary judgment, affects whether issue estoppel applies. The moving parties are precluded from moving a second time for summary judgment because of the application of issue estoppel arising from the decision of the Court of Appeal. The Court of Appeal’s decision is binding on the moving parties. The third parties’ motions for summary judgment were not heard and decided by the motion judge. The third parties are not precluded by the doctrine of issue estoppel from moving for summary judgment.
[27] With respect to the moving parties’ fifth submission, they argue that the Court of Appeal authorized them to move again for summary judgment, as they have, and that on this motion they are free to argue on the full evidentiary record that there is no genuine issue requiring a trial with respect to their vicarious liability for any negligence of Mr. Davies Jr.
[28] I disagree with this submission.
[29] The Court of Appeal, in paragraph 40 of its reasons, left the parties to the proceedings “free to pursue their claims including, if so advised, other motions for summary judgment, without being bound by any of the determinations made in the decision under appeal.” The Court of Appeal’s statement expressly refers to “other” motions for summary judgment, which would include the third parties’ motions for summary judgment. If the Court of Appeal had intended to decide only that the discovery evidence that was excluded by the motion judge was properly admissible, and to leave the moving parties free to bring their motion for summary judgment again on the complete evidentiary record, it could have expressly so decided. Instead, the Court of Appeal expressly decided, upon consideration the complete evidentiary record, that there was a genuine issue requiring a trial.
[30] In the context of the Court of Appeal’s reasons for decision, read as a whole, it is clear that by making the statements in paragraph 40 of its decision, the Court of Appeal did not grant leave to the moving parties to bring their motion for summary judgment a second time.
[31] In connection with an order dismissing a motion for summary judgment, Finlayson J.A. held in V.K. Mason that “[i]t is the finding that there is a genuine issue for trial that is res judicata”. I conclude that the moving parties are precluded by operation of the issue estoppel form of res judicata from relitigating the Court of Appeal’s decision that there is a genuine issue requiring a trial through their summary judgment motion brought before me.
Disposition
[32] For these reasons, the moving parties’ motion for summary judgment is dismissed.
[33] If the parties are unable to resolve costs, Mr. Bonello may make written submissions within 20 days and the moving parties may make responding submissions within 15 days thereafter.
Cavanagh J.
Released: April 6, 2018
COURT FILE NO.: CV-09-383809
DATE: 20180406
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
TIMOTHY BONELLO, TED BONELLO, ANNE CUTAJAR WAGNER, ANDREW BONELLO and MARK BONELLO
Plaintiffs
– and –
GORES LANDING MARINA (1986) LIMITED, JOSEPH DAVIES, and MURRAY E. CARSLAKE and JOSEPH DAVIES JR. also known as JOEY DAVIES
Defendants
REASONS FOR JUDGMENT
CAVANAGH J.
Released: April 6, 2018
[^1]: The evidentiary record before the Court of Appeal is the same as the record before me except that Joseph Davies Jr. was examined as a witness on a pending motion on January 29, 2018 and a transcript of this examination was included in the moving parties’ motion materials before me. On this examination, at qq. 459-472, he agreed that his evidence given when he was examined for discovery is accurate and true, and that he did not want to make any corrections to the transcript of this examination for discovery from 2014.