Ruling on Terms of Judgment

Court File and Parties

COURT FILE NO.: CV-09-0097-00 DATE: 2018/07/11 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Sheila Donleavy and Kenneth Edwards Plaintiffs – and – Ultramar Ltd., Kilpatrick Fuels Limited and Joe Burns Defendants

COUNSEL: R. Steven Baldwin and S. Daniel Baldwin, Counsel for the Plaintiffs Todd J. Burke, Counsel for the Defendant, Ultramar Ltd. Joseph Villeneuve, Counsel for the Defendants, Kilpatrick Fuels Limited and Joe Burns

HEARD: July 3, 2018

CORTHORN J.

Introduction

[1] Reasons for judgment in the trial of this action were released in December 2017. The parties were directed that in the event they were unable to resolve the issues of either pre-judgment interest or costs, they would arrange to appear before me to make submissions. Submissions on both issues were made on July 3, 2018.

[2] The parties were unable to agree upon the wording of the judgment to be taken out in this matter. Submissions were also made on July 3, 2018, with respect to the wording of the judgment.

Background

[3] The plaintiffs’ claims for damages had two components: 1) a subrogated claim on behalf of the plaintiffs’ homeowner’s insurer; and 2) the claims of the individual plaintiffs for general non-pecuniary damages and for special damages. The parties agreed, prior to the commencement of trial, that the subrogated portion of the claim would be assessed at $750,000.

[4] The only damages claimed for which an assessment was required at trial were those claimed by the individual plaintiffs. Ms. Donleavy was awarded $20,000 for general non-pecuniary damages and Mr. Edwards, $10,000. The claims by the individual plaintiffs under other heads of damages were not allowed.

[5] The primary focus of the trial was the issue of liability, including contributory negligence as alleged on the part of the plaintiffs. Liability was apportioned 60 per cent to the defendant, Ultramar and 40 per cent contributory negligence on the part of the plaintiffs.

[6] Ultramar was successful on its crossclaim against the co-defendants, Kilpatrick Fuels Limited and Joe Burns. Ultramar is entitled to indemnity from Kilpatrick Fuels/Burns for 50 per cent of the amounts it is required to pay to the plaintiffs. The crossclaim by Kilpatrick Fuels against Ultramar was dismissed.

[7] The court was provided with two alternative draft judgments—one prepared by counsel for the plaintiffs (“the Plaintiffs’ Draft”) and the other prepared by counsel for Ultramar (“the Ultramar Draft”). Kilpatrick Fuels and Burns do not take a position on the wording of the judgment.

[8] The plaintiffs and Ultramar agree with respect to a number of the paragraphs to be included in the judgment, with slight differences in wording as between the drafts. The differences are not substantive. For the wording of the paragraphs on which there is agreement, I rely on the Plaintiffs’ Draft.

[9] The paragraphs to which there is agreement are set out below, although not in the order in which they shall ultimately appear in the judgment:

1. THIS COURT ORDERS that the Plaintiffs’ claims against the Defendants Ultramar Ltd. and Kilpatrick Fuels [Limited] based in breach of contract be and are hereby dismissed.
2. THIS COURT ORDERS that the crossclaim of Kilpatrick Fuels Limited against Ultramar Ltd. is dismissed.
3. THIS COURT ORDERS that Ultramar [Ltd.] shall pay Sheila Donleavy the sum of Twelve Thousand Dollars ($12,000.00) for general non-pecuniary damages.
4. THIS COURT ORDERS that Ultramar [Ltd.] shall pay Ken Edwards the sum of Six Thousand Dollars ($6,000.00) for general non-pecuniary damages.

[10] The paragraphs about which there is disagreement are those related to the subrogated claim, the success of Ultramar on its crossclaim, pre-judgment interest, and costs.

[11] I note that the Plaintiffs’ Draft includes a provision for post-judgment interest (at two per cent per year). The Ultramar Draft is silent on post-judgment interest. No issue was taken by any of the defendants with respect to the inclusion of a term providing for post-judgment interest and prescribing the rate of two per cent per year. The relevant paragraph is therefore included in the terms of the judgment reflected in the concluding section of this ruling.

[12] Set out below in chart form are the paragraphs about which there is disagreement as between the plaintiffs and Ultramar.

Plaintiffs’ Draft

2. THIS COURT ORDERS that Ultramar shall pay the Plaintiffs the sum of Four Hundred Fifty Thousand Dollars ($450,000.00) being the subrogated interest of the Plaintiffs’ insurers.
3. THIS COURT ORDERS that Ultramar shall have judgment on its crossclaim against Kilpatrick Fuels Limited such that Kilpatrick Fuels Limited shall pay Ultramar Fifty percent (50%) of the amounts owing by Ultramar to the plaintiffs.

Ultramar Draft

2. THIS COURT orders the Defendant Ultramar Ltd. to pay the sum of Four Hundred Fifty Thousand Dollars ($450,000.00) being 60% of the agreed upon general damages of $750,000, to the Plaintiffs’ subrogated insurer.
3. THIS COURT ORDERS that Ultramar Ltd.’s cross-claim against the Defendant Kilpatrick Fuels Limited be and is hereby granted.
4. THIS COURT orders the Defendant Kilpatrick Fuels Limited to pay the sum of Two Hundred and Thirty Four Thousand ($234,000.00) to Ultramar Ltd., being fifty percent (50%) of the general damages and non-pecuniary damages payable by Ultramar Ltd. to the Plaintiffs and their subrogated insurer.

The Issue

[13] I am not being asked to settle the terms of the judgment (Parc Downsview Park Inc. v. Penguin Properties Inc., 2017 ONSC 7079, at para. 3). The parties are not requesting clarification of the outcome at trial (as reflected in paragraph 209 of the Reasons for Judgment).

[14] The sole issue to be determined is, taking into consideration the purpose to be served by a judgment, how is the result at trial to be reflected in the judgment?

Analysis

[15] Reasons for judgment provide parties to a trial with the reasoning that led to the result. The purpose of the judgment is to describe the result (see Perrell and Morden, The Law of Civil Procedure in Ontario, Third Edition, Lexis Nexis, 2017, Chapter 11, at p. 973 (item 11.14)).

a) The Subrogated Claim

[16] The ‘result’ is that which may be enforced. In this matter, for example, the plaintiffs may enforce payment of specific monetary amounts totalling $468,000. For enforcement purposes, how that $468,000 is calculated is irrelevant (i.e. as 60 per cent of each of $750,000, $20,000, and $10,000). For that reason, I find that paragraph 2 (as appears in the chart above) of the Plaintiffs’ Draft is the proper wording to reflect the ‘result’ of the subrogated claim.

[17] I also reject the wording of paragraph 2 from the Ultramar Draft because it provides for payment of $450,000 to “the Plaintiffs’ subrogated insurer”. The insurer is not a party to the action. The damages awarded with respect to the subrogated claim are payable to the plaintiffs. The relationship between the plaintiffs and their homeowner insurer, and the terms pursuant to which monies recovered on the subrogated claim are to be paid by the plaintiffs to their insurer, are matters of contract as between them.

[18] I also note the inconsistency in the approaches taken in the Ultramar Draft. The reference to 60 per cent liability on the part of Ultramar appears only in the paragraph dealing with the subrogated claim. The paragraphs that deal with the damages awarded to the individual plaintiffs make no reference to the gross amounts of the damages ($20,000 and $10,000) or to 60 per cent. No explanation was given for the difference in approach as between the subrogated claim and the personal claims.

[19] Ultramar submits that reference to the 60 per cent liability on its part will be of assistance to the Court of Appeal. I disagree and turn once again to the Perrell and Morden text. At paragraph 11.6 of the text, the authors explain that:

• The order made by the court is different from the reasons for decision;
• The reasons for decision provide the explanation for the court’s conclusion;
• An appeal is from the order and not from the reasons for decision;
• The parties look to the reasons for decision to determine whether there are grounds for appeal;
• The parties are bound by the terms of the order or judgment; they are not bound by the reasons; and
• A judgment may be correct even if the reasons for it are wrong.

[20] The bullet points highlight the distinction between a judgment and the reasons for the judgment. There is in my view no basis, in this matter, to detract from that distinction.

b) Ultramar’s Crossclaim

[21] Paragraph 5 of the Plaintiffs’ Draft accurately reflects the result achieved by Ultramar on its crossclaim; Ultramar is entitled to indemnity from Kilpatrick Fuels for 50 per cent of the amounts owing by Ultramar to the plaintiffs. The amount to be paid by Ultramar to the plaintiffs includes damages, pre-judgment interest and, if awarded, costs.

[22] Paragraphs 5 and 6 of the Ultramar Draft lead to ambiguity. They identify that Ultramar was successful on the crossclaim, but restrict its recovery on the crossclaim to 50 per cent of damages only.

[23] Elsewhere in the Ultramar Draft specific figures are set out for pre-judgment interest and the recovery by Ultramar from Kilpatrick Fuels/Burns of 50 per cent of pre-judgment interest. The Reasons for Judgment do not provide for payment of pre-judgment interest. It would be inappropriate to refer to specific amounts payable for pre-judgment interest in a judgment dated December 2017, when no determination had been made as of that date as to the pre-judgment interest payable. That issue remained to be and was subsequently addressed.

[24] Ultramar may rely on paragraph 5 of the Plaintiffs’ Draft to enforce payment by Kilpatrick Fuels/Burns of 50 per cent of all “amounts”—whether those amounts are damages payable pursuant to the judgment or pre-judgment interest and costs, the latter if awarded, payable pursuant to an order made subsequent to the release of the Reasons for Judgment.

[25] I have slightly revised the wording of paragraph 5 of the Plaintiffs’ Draft. It now reads as follows:

THIS COURT ORDERS that the crossclaim of Ultramar against Kilpatrick Fuels Limited is granted and that Kilpatrick Fuels Limited shall pay Ultramar Fifty percent (50%) of the amounts owing by Ultramar to the plaintiffs.

[26] This revised version of paragraph 5 from the Plaintiffs’ Draft appears in the concluding section of this ruling.

c) Pre-judgment Interest and Costs

[27] At paragraph 210 of the Reasons for Judgment, I addressed the issues of pre-judgment interest and costs. I directed the parties to arrange to appear before me for submissions in the event they were unable to resolve one or both of those issues. The Plaintiffs’ Draft includes wording taken directly from paragraph 210.

[28] Paragraph 210 does not provide for anything that is enforceable; it directs the parties as to the steps to be taken in the event they are unable to resolve the issues of pre-judgment interest and costs.

[29] By July 3, 2018, when they appeared before me again, the parties had reached an agreement with respect to the amounts owing for pre-judgment interest. The only substantive issue addressed on July 3, 2018, was the issue of costs. I reserved my decision with respect to costs. The parties agreed that pre-judgment interest is to be set out in my ruling as to costs. That ruling will lead to an order being taken out with respect to pre-judgment interest and costs.

[30] Paragraph 7 in the Plaintiffs’ Draft is therefore not included in the judgment.

Disposition

[31] In summary, a judgment shall be issued and entered in accordance with the preamble paragraphs that appear in both the Plaintiffs’ Draft and the Ultramar Draft, and with the following numbered paragraphs:

1. THIS COURT ORDERS that the Plaintiffs’ claims against the Defendants, Ultramar Ltd. and Kilpatrick Fuels Limited based in breach of contract be and are hereby dismissed.
2. THIS COURT ORDERS that Ultramar Ltd. shall pay the Plaintiffs the sum of Four Hundred Fifty Thousand Dollars ($450,000.00), being the subrogated interest of the Plaintiffs’ insurers.
3. THIS COURT ORDERS that Ultramar Ltd. shall pay Sheila Donleavy the sum of Twelve Thousand Dollars ($12,000.00) for general non-pecuniary damages.
4. THIS COURT ORDERS that Ultramar Ltd. shall pay Ken Edwards the sum of Six Thousand Dollars ($6,000.00) for general non-pecuniary damages.
5. THIS COURT ORDERS that the crossclaim of Ultramar Ltd. against Kilpatrick Fuels Limited is granted and that Kilpatrick Fuels Limited shall pay Ultramar Ltd. Fifty per cent (50 %) of the amounts owing by Ultramar Ltd. to the plaintiffs.
6. THIS COURT ORDERS that the crossclaim of Kilpatrick Fuels Limited against Ultramar Ltd. is dismissed.
7. THIS COURT ORDERS that the sums in the judgment bear post-judgment interest at the rate of two per cent (2 %) per annum.

Madam Justice Sylvia Corthorn Released: July 11, 2018

COURT FILE NO.: CV-09-0097-00 DATE: 2018/07/11 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Sheila Donleavy and Kenneth Edwards Plaintiffs – and – Ultramar Ltd., Kilpatrick Fuels Limited and Joe Burns Defendants

RULING ON TERMS OF JUDGMENT Madam Justice S. Corthorn

Released: July 11, 2018