Court File and Parties

COURT FILE NO.: CV-13-486213-00A1 DATE: 20190425 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: AHMAD HAROON FAROOQI, MARZIA FAROOQI, SABA FAROOQI, NIGA FAROOQI, JAWAD FAROOQI and EMAD FAROOQI by their Litigation Guardian, MARZIA FAROOQI, Plaintiffs

AND:

CLARICE LORENZO, HENRY MARTINEZ, THEVAKANTHAN NADARAJAH, MANPREET SINGH GILL and FREEWAY AUTO SERVICE, Defendants

AND:

HER MAJESTY THE QUEEN IN RIGHT OF THE PROVINCE OF ONTARIO AS REPRESENTED BY THE MINISTER OF TRANSPORTATION FOR THE PROVINCE OF ONTARIO, Third Party

BEFORE: Darla A. Wilson J.

COUNSEL: Slavko Ristich, for the Plaintiffs Sandi Smith, for the Defendants Clarice Lorenzo and Henry Martinez Leonard Collier, for the Defendant Thevakanthan Nadarajah Harry Brown, for the Defendants Manpreet Singh Gill and Freeway Auto Service Sean McGarry, for the Third Party

HEARD: April 23, 2019

Endorsement

[1] I convened a case conference with counsel on this matter, after they attended in Civil Practice Court to obtain a date for a Summary Judgment motion. Justice Archibald noted that I approved the Rule 7 motion in the companion matter, which was an accident benefits claim. As a result, he directed that counsel attend before me prior to a date being fixed for the hearing of a Summary Judgment motion.

[2] Regrettably, I was not provided with much material that was of assistance prior to the case conference. I did receive a brief containing some documents, but it was not clear who sent this to me and none of the counsel sent any material outlining the issues to be canvassed at the case conference.

[3] After speaking with counsel, I was advised that this action arises from a motor vehicle accident which occurred August 3, 2011. A number of defendants are sued and examinations for discovery have been completed. There is a Third Party action against the Ministry; I have no information as to the basis of this claim.

[4] The Defendant Gill was a tow truck driver who attended at the scene of an accident on the 401 highway. He was talking to the Plaintiff Ahmad Farooqi when the vehicles driven by the Defendants Nadarajah and Loranzo collided and the Nadarajah car hit Farooqi. As a result, he claims damages for the injuries he sustained.

[5] Gill takes the position that no liability rests with him; the other Defendants, (except for Lorenzo and Martinez), the Plaintiffs and the Third Party concur and are content with an order dismissing the action against him and Freeway Auto Service. Lorenzo and Martinez take the position that some liability rests with Gill.

[6] Gill wishes to bring a partial summary judgment motion, seeking an order that no liability rests with him and requests an order dismissing the action against him. Ms. Smith, counsel for Lorenzo and Martinez, advises that she will oppose this motion; she has retained an engineer to provide an expert report on the liability issue and expects to have the report in 6 weeks’ time. Counsel agreed that the motion could be heard on a paper record without the necessity of viva voce evidence.

[7] The Court of Appeal has made it clear that “a motion for partial summary judgment should be considered to be a rare procedure…”: Butera v. Chown, Cairns LLP, 2017 ONCA 783.

[8] The Court must consider the advisability of a summary judgment motion in the context of the litigation as a whole: Baywood Homes Partnership v. Haditaghi, 2014 ONCA 450. In particular, as in the case at hand, a partial summary judgment motion which would dismiss the claim against one defendant with the action proceeding against the other defendants risks “creating duplicative proceedings or inconsistent findings of fact.” Hryniak v. Mauldin, 2014 SCC 7.

[9] In my view, the motion contemplated by Gill is not appropriate for disposition on a summary judgment motion for the reasons articulated in the cases referred to above. However, the entire issue of liability seems to me an issue that could be decided on a summary judgment motion. A Court could determine on a paper record the issue of liability and the trial proceed on damages only, which would be a more efficient use of the trial time and accords with the reasoning of Hryniak, supra.

[10] If counsel agree to proceed by way of summary judgment motion on the issue of liability, they are to contact Michelle Chen and obtain a date to attend in CPC to book the motion date. Given that my only involvement in this action is that I approved the Rule 7 motion in the companion action, I am not seized of this matter.

D.A. Wilson J. Date: April 25, 2019