Superior Court of Justice
Newmarket Court File Nos.: CV-13-114389-00, CV-13-114389-A1, CV-13-114389-A2 Date: 2018-06-15
Between: Shayne Berwick, a party under disability by his Litigation Guardian, Colin Berwick, Colin Berwick, personally and Terry Berwick (Plaintiffs) – and – Steven Raymond Samis, Andrew Kozmik and Karen Kozmik (Defendants) Trevor Middleton, Ruo Hang Liu, Yaqi Wang and Linda-Sue Pearce (Third Parties)
Counsel: B. Cameron, for the Plaintiffs D. Reisler and J. Kuredjian, for the Defendant, Samis A. Wallrap, for the Defendants, Kozmik No one appearing for the Third Parties, Middleton, Liu and Wang A.C. Gluek, for the Third Party, Pearce
Heard: May 15, 2018
Decision on Motions Brought by the Defendants/Third Party Plaintiffs, Samis and Kosmik
Sutherland J.:
Overview
[1] The defendants/third party plaintiffs (the defendants) each bring a motion pursuant to Rule 20 and 21 of the Rules of Civil Procedure[^1] requesting that the plaintiffs’ action, the third party actions and all counterclaims and cross claims be dismissed with costs.
[2] The third party claims of Steven Raymond Samis (Samis) and Andrew Kozmik and Karen Kozmik (Kozmik) was defended by some of the Third Party defendants. Linda-Sue Pearce (Pearce) filed a statement of defence, cross claim and counterclaim. Ruo Hang Liu (Liu) and Yagi Wang (Wang) filed a statement of defence and cross claim. No pleading was filed by Trevor Middleton (Middleton) defending the Third Party claims or the main action. Liu Wang and Middleton were served with the jury notices, the supplemental motion records of Samis and Kozmik along with the factums and book of authorities of Samis, Kozmik and Pearce.
[3] The Plaintiffs do not oppose the relief requested by the defendants dismissing their action. The Third Parties, Liu and Wang and Middleton, though served, did not attend at this motion.
[4] For the reasons to follow, I grant the orders requested by the defendants and dismiss the action of the plaintiffs, the third party claims of Samis and Kozmik and all cross claims and counterclaims with costs.
Background
[5] The action involves an automobile accident that occurred on September 16, 2007. The plaintiff, Shayne Berwick is alleged to have suffered severe injuries as a result of the accident. Shayne Berwick was a passenger in a vehicle driven by Liu which was hit by a vehicle driven by Middleton. The vehicle driven by Middleton was owned by his mother, Pearce.
[6] The plaintiffs commenced this action on May 6, 2013 (“the 2013 action”). Samis commenced his Third Party claim on March 19, 2014. Kozmik commenced their Third Party claim on January 30, 2014.
[7] The plaintiffs commenced an action on June 26, 2008 bearing court file #CV-08-090129 (“the 2008 action”) against Pearce, Middleton, Liu and Wang for injuries he suffered in the motor vehicle accident. In that action, the defendants were not named as defendants. In the 2008 action, Pearce did not add the defendants in that action nor did Pearce commence a Third Party claim against the defendants. Pearce did cross claim.
[8] Liu commenced an action on September 14, 2009 bearing court file #CV-09-386969 against Pearce, Middleton and his insurer, The Personal Insurance Company (“the 2009 action”). Again, the defendants were not named defendants in the 2009 action. Pearce did not issue a third party claim or counterclaim bringing the defendants into the proceeding.
[9] The plaintiffs commences an action against Nicholas Perry and Shiv Kumar on September 15, 2009, bearing court file #CV-09-387093, claiming damages arising from the accident.
[10] As already stated, the defendants, separately, commenced a Third Claim against Pearce in the 2013 action. Pearce claimed by way of counterclaim against the defendants for “contribution and indemnity to the extent to which she is liable for the plaintiffs’ damages and the damages of the plaintiff, Ruo Hang Liu, in court file #CV-09-386969 (Toronto)”, as well as a Crossclaim against the other Third Party defendants for contribution and indemnity for any damages that she is found liable.”
Issue
[11] The issue for the court to determine is whether there is a genuine issue requiring a trial on the claims set forth in the Statement of Defence, Crossclaim and Counterclaim of Pearce.
Is there a genuine issue requiring a trial on the claims set forth in the Statement of Defence, Crossclaim and Counterclaim of Pearce?
Legal Principles of Summary Judgment
[12] The parties do agree that there are no material facts in dispute. The parties do agree on the date the accident took place, the dates of the commencement of the 2008, 2009 and 2013 actions, and the date of the commencement of the Third Party claims of Samis and Kozmik. The parties accordingly agree that there is no issue concerning discoverability. Given that there are no material facts in dispute, the parties agree that the issue for the court to determine is a legal one. I do not accept that the issues are a pure question of law. It seems to me that it is a question of mixed fact and law.
[13] I feel compelled to discuss the defendants bringing motions based on r. 21 and r. 20. My concerns are that r. 21 does not permit the filing of affidavit evidence without leave. A r. 21 motion is based on the pleadings where the facts stated in the pleadings are deemed to be correct and true. While r. 20 does permit that filing of such affidavit evidence. So in effect, without leave granted, a r. 21 motion has affidavit evidence by bringing the same motion under r 20. It seems to me that a r. 21 motion brought by the defendant should be brought promptly and prior to the filing of any pleading by the defendants.
[14] In this case, affidavit evidence was required to set out the history of the various proceedings and the factual matrix from the September 16 2007 motor vehicle accident. The motions were not brought promptly and pleadings were filed by the defendants. I am also of the opinion that bringing one motion under both rr. 20 and 21 is procedurally improper and this motion should have been brought only under r. 20. I have therefore elected to determine the issues by way of the summary judgment rules to determine if there is a genuine issue requiring a trial.
[15] Pursuant to r. 20.01 of the Rules of Civil Procedure, the court must grant summary judgment if it is satisfied there is no genuine issue requiring a trial. In response to a summary judgment motion, one is not permitted to solely rely on allegations or denials in their statement of defence but must provide affidavit material with the specific facts showing that there is a genuine issue requiring a trial.
[16] There will be no genuine issue requiring a trial when a court is able to reach a fair and just determination on the merits. A fair and just determination on the merits is achieved when:
(a) The process allows the judge to make necessary findings of facts;
(b) The process allows the judge to apply the law to the facts; and,
(c) It is a proportionate and more expeditious and less expensive means to achieve a just result.[^2]
[17] On a motion for summary judgment, the court must first determine if there is a genuine issue requiring a trial based on the evidence given on the motion. If there appears to be a genuine issue requiring a trial, the court would then determine if the need for a trial can be avoided using the powers under r. 20.04(2.1) of the Rules of Civil Procedure by weighing the evidence, evaluating the credibility of the deponents, and drawing any reasonable inference from the evidence unless it is in the interest of justice for these powers to be exercised only at a trial. These powers are presumptively available to the judge to give effect to the goals of timeliness, affordability and proportionality in review of the litigation as a whole.[^3]
[18] In contrast, the responding party to the motion must put their “best foot forward” or risk summary judgment being awarded against them. The responding party bears the evidentiary burden to present affidavit material or other evidence to support the allegations or denials in their pleading. Absent this evidence, an adverse inference can be drawn.[^4]
Position of the Parties
[19] The defendants argue that given that the plaintiff does not oppose the relief requested in their motions, and the other Third Party defendants, except Pearce, have not opposed their motions. The Statement of Defence, Counterclaim and Crossclaim of Pearce the argument goes, falls with the dismissal of the action of the plaintiff and the Third Party claims. In effect, there are no damages that Pearce may be liable once the plaintiffs’ action and the Third Party Claims are dismissed. There is no substance to the plaintiffs’ or Third Party’s claims.
[20] Further, the defendants submit that Pearce, if she so desired, could have made a claim against the defendants, in the 2008 or 2009 action. She choose not to do so. Pearce is statutorily barred in bringing such a counterclaim against the defendants or cross claims, by way of her Defence in the 2013 action and the Third Party action. A limitation date for a contribution and indemnity claim will not end until two years from the date the 2009 actions was commenced. Pearce, they argue, is attempting to get through the back door what she is prevented from doing through the front door. In addition, the defendants argue, for policy reasons, there must be finality. If the court accepts the position of Pearce, there is no finality. The pleadings of Pearce in this proceeding is an abuse of process.
[21] Pearce disagrees with the defendants. Pearce argues that there are two limitation dates. The first is the limitation date to bring a claim in the 2008 and 2009 actions, two years from the date of the motor vehicle accident. The second date is the date to bring her claim for contribution and indemnity in the 2013 action, two years from the service of the Third Party actions upon the Third Party defendants. Pearce argues that her Statement of Defence, Counterclaim and Crossclaim was commenced within that two year period and thus, the claims for contribution and indemnity are not statutorily barred. As the reasoning goes, a counterclaim and cross claim are independent actions that are based in equity. They are not subject to the main action or what may occur in the main action. Consequently, the claims of Pearce against the defendants and the co-Third Party defendants should be able to proceed on the merits.
Analysis
Limitations Act
[22] Section 4 of the Limitations Act, 2002 (“the Act”) sets out a basic limitation period of a claim. Section 4 reads: “Unless this Act provides otherwise, a proceeding shall not be commenced in respect of a claim after the second anniversary of the day on which the claim is discovered”.[^5]
[23] Section 5 of the Act sets out the rules for determining when a claim is discovered. There is no issue that the motor vehicle accident occurred on September 16, 2007. The date of the basic limitation date commences for the claim arising from this motor vehicle accident is September 16, 2007. It is not disputed that the 2008 and 2009 actions were commenced within the two year basic limitation period. It further is not in dispute that the 2013 action was not commenced within the basic limitation period.
[24] Section 18 of The Act governs the limitation period for contribution and indemnity claims. Section 18 states:
Contribution and indemnity
18(1) For the purpose of subsection 5(2) and section 15, in the case of a claim by one alleged wrongdoer against another for contribution and indemnity, the day on which the first alleged wrongdoer was served with the claim in respect of which contribution and indemnity is sought shall be deemed to be the day the act or omission on which that alleged wrongdoer’s claim based took place.
[25] Section 1 of The Act defines a claim as “a claim to remedy an injury, loss or damage that occurred as a result of an act or omission.”
[26] The issue for the court to determine, in the circumstances of this case, is when was Pearce “served with the claim in respect of which contribution and indemnity is sought”. Pearce takes the position that it is the date of the commencement of the 2013 action. The defendants take the position that it is the date of the commencement of the 2008 action. Obviously, if Pearce is correct her claim for contribution and indemnity is not statutorily barred. If the defendants are correct, Pearce’s claims are statutorily barred.
[27] The Ontario Court of Appeal has examined section 18 of the Act. In Placzek v. Green[^6], the Court of Appeal acknowledged that a claim for contribution and indemnity is governed by section 18 of the Act and is an action independent of the plaintiff’s claim. The Court of Appeal found that Green delayed commencing his crossclaim more than 2 years after being served with the claim and as such, the crossclaim was barred by section 18 of the Act.
[28] In Waterloo Region district School Board v. CRD Construction Ltd.,[^7] the Court of Appeal had another opportunity to examine section 18 of the Act. As Justice Feldman, speaking for the Court stated:
- In my view, to the extent that the legislature intended to change the law that has been in place since 1948 regarding the requirement for bringing a claim for contribution and indemnity, it did so specifically by changing the limitation period (from one year to two) and the commencement date from which it runs (from the date of the plaintiff’s judgment against a particular tortfeasor to the date when the plaintiff’s claim was served on a particular tortfeasor). The new limitation period under s. 18 applied, as did the former one under s. 8, both to claims that are tried and to those that are settled (ss. 1 and 2 of the Negligence Act)
[29] In addition, the Court of Appeal in the decision Mega International Commercial Bank (Canada) v. Yung[^8], confirmed that the limitation period under section 18 of the Act commences on the date the party seeking contribution and indemnity was served with the Statement of Claim and that the presumptive limitation period start date can be rebutted by the discoverability principles.
[30] In applying to the case at hand, I agree with the counsel for Pearce. Pearce commenced her crossclaims and counterclaim for indemnity and contribution within the prescribed two year periods of being served with the 2013 action. There is no issue of discoverability. Having commenced her crossclaims and counterclaim within that two year period after being served with the 2013 action, Pearce’s claims for contribution and indemnity against the defendants, Liu and Wang are not barred by the Act, as it relates to the 2013 claim.
[31] However, Pearce’s claim for indemnity and contribution with respect to the defendants also relates to the 2009 action.
[32] Pearce made it clear in one of her prayers of relief for contribution and indemnity as against the defendants is with respect to the 2009 action. In reading the words in “their grammatical and ordinary sense harmoniously with the scheme of the Act”[^9], section 18 of the Act indicates that service of claims for indemnity and contribution commences on the date of service of the claim “which contribution and indemnity is sought”. The claim of which contribution and indemnity as against the defendants with respect the 2009 action “is sought” in that action which was commenced on September 14, 2009. It is clear that the contribution and indemnity claims of Pearce as against the defendants in the 2009 action exceeds two years from September 14, 2009. Accordingly, the claim of Pearce against the defendants with respect to “damages of the plaintiff, Ruo Hang Liu, in court file #CV-09-386969 (Toronto)” [^10]is barred by the Act.
Can Pearce’s claims as against the plaintiff and the defendants continue given that the plaintiff’s 2013 action is being dismissed?
[33] As already stated, a claim for contribution and indemnity is an independent claim. In Placzek, Simmons J.A. articulated:
First, rather than being claims for damages out of tort, Mr. Green’s proposed counterclaims are essentially claims for restitution based on unjust enrichment. As such, although Mr. Green’s claims may be related to the tortious acts that underlie the accident, they are not founded on those acts. Rather, they are founded on the acts or omissions giving rise to the claims for restitution.
There is ample authority in Ontario for the proposition that a claim for contribution and indemnity under s. 1 of the Negligence Act is not a damage claim arising out of a tort, but instead is a statutory claim founded on principles of restitution and unjust enrichment.[^11]
[34] Further in the decision of Placzek, Simmons J.A. stated:
- Further, because a claim under s. 1 of the Negligence Act is premised on the unjust enrichment of concurrent tortfeasors that arises when one concurrent tortfeasor bears a disproportionate share of the injured party’s damages, it follows that the “acts or omissions” on which the claim is based are the failures by the other concurrent tortfeasor to pay their fair share of the injured party’s damages before contribution and indemnity claimants liability to the injured party has crystalized.
[35] Thus, a claim for indemnity and contribution is premised on the unjust enrichment of one concurrent tortfeasor bearing a disproportionate share of an injured party’s damages. For a claim to exist and crystalize, there must be a claim by an injured party against concurrent tortfeasors. If no such claim exists because the claim is or is being dismissed, there is no possible claim that can be crystalized to create a claim premised under unjust enrichment. There is no possible enrichment unjust, or otherwise, as between concurrent tortfeasors.
[36] I agree with the general reasoning of Dupont J. in Nadrofsky Corp v. Huron Chevrolet Oldsmobile-Cadillac Inc.[^12] in determining whether a third party claim continues if the main action has been resolved:
I am of the view that if the defendant in an action (which is the counterclaim in this action), is absolved of all blame or found free of negligence, or agreed by the parties to be free of negligence and, therefore, not required to pay any part of the plaintiff’s damages, in the sense that all issues between them are resolved, then the third party proceedings which was launched, fails. In this case I find that to be so, as the claim for contribution or indemnity brought by the plaintiff (who is defendant by counterclaim) is without substance, there being no claim for the third party to indemnify or contribute to.
[37] In this proceeding, the action of the plaintiff is agreed to be dismissed between the plaintiffs and the defendants. The third party action is also agreed to be dismissed as between the third party plaintiffs (the defendants), and the third party defendants, Liu and Wang. The third party defendant, Pearce does not agree to the dismissal of the third party action as it relates to a dismissal of her Statement of Defence, Counterclaim and Crossclaim.
[38] I find that notwithstanding Pearce’s refusal to consent, she no longer has a counterclaim and crossclaim for indemnity and contribution as against the third party plaintiffs/the defendants nor the third party defendants, Liu and Wang. There is no claim of negligence against the defendants and thus, no claim for which Pearce may be liable. The entire claim of the plaintiffs has been resolved. Pearce will not be required in pay any damages awarded to the plaintiffs’ by way of an adjudication or settlement.
[39] Pearce’s claims for contribution or indemnity has no basis in law. There is no substance to the claims, given the complete resolution of the plaintiffs’ claims.
Conclusion
[40] Accordingly, I come to the conclusion given that there are no material facts in dispute, I am able to apply those facts to the law and find that Pearce has no claim for contribution or indemnity. Consequently, the claims of Pearce are dismissed with the dismissal of the plaintiffs’ action and the defendants’ third party claims. The only possible claim of the third party defendants is that of costs for defending the third party claims.
Disposition
[41] For the reasons given, the defendants’ motions are successful and I order that the action of the plaintiffs, the Third Party claims bearing court file #s CV-13-114389-00A1 and CV-13-114389-00A2 and all counterclaims and/or crossclaims in the plaintiffs’ action and the Third Party claims be dismissed.
Costs
[43] If the parties cannot agree on costs, then the defendants to serve and file their written submissions for costs for the motions and if applicable the action within thirty days from the date of this decision, and Pearce, Liu and Wang will have thirty days thereafter to serve and file their submissions concerning the Third party proceedings and motions. There is no right for any reply submissions. The submissions to be no more than five pages, double spaced, exclusive of any cost outline, case law and offers to settle. Submissions are to be filed with the court. If no submissions are received within the time period set out herein, an order will be made that there will be no costs.
Justice P.W. Sutherland
Released: June 15, 2018
[^1]: R.R.O. 1990, Reg. 194. [^2]: Hryniak v. Mauldin, 2014 SCC 7, at para. 49. [^3]: Ibid., at para. 65; and Canaccord Genuity Corp. v. Pilot, 2015 ONCA 716, at para. 31. [^4]: Vincorp Financial Ltd. et al. v. Hope’s Holdings Inc., 2010 ONSC 6819, at para 17. [^5]: S.O. 2002, c. 24, Sche.B. [^6]: [2009] ONCA 83, at paras. 33-50. [^7]: 2010 ONCA 838. [^8]: 2018 ONCA 429, at paras 74-77. [^9]: Rizzo & Rizzo Shoes Ltd. (Re), [1982] 1 S.C.R. 27, at para.21. [^10]: Statement of Defence, Cross Claim and Counterclaim to the Third Party Claim of the Defendants of this Third Party, Linda-Sue Pearce. para 12 (a). [^11]: Supra, foot note 6. [^12]: (1986) 2510; 1986 2510 (ON SC), 56 O.R. (2d) 117 (Ont. H.C.J.), at pg. 4