COURT FILE NO.: 14-49836 DATE: 2019-06-21

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Nadia Moushi, Geoffrey Fenyves and Joseph Fenyves, a minor under the age of 18 years, by his litigation guardian, Carlo Tittarelli Plaintiffs

AND:

Lauren Stephen, Brenda Stephen, TD General Insurance Company, and St. Joseph’s Healthcare Hamilton Defendants

AND:

Dr. John Sollazzo, Dr. Parkash Kaur Singh, Dr. Zainab Samaan, Dr. Fahad Abuguyan, Dr. Shuang Xu, and Dr. Laura Elizabeth Rosato a.k.a. Dr. Laura Elizabeth Matsos Third Parties

AND:

Brenda Stephen and St. Joseph’s Healthcare Hamilton Fourth Parties

BEFORE: The Honourable Mdm. Justice L. Sheard

COUNSEL: Sabrina L. Seibel, Counsel for the Plaintiffs M. Edward Key, Counsel for the Defendant, Lauren Stephen Cameron Malcolm, Counsel for the Defendant and Fourth Party, Brenda Stephen Kevin Temple, Counsel for the Defendant, TD General Insurance Company Joseph J. Masterson and Elizabeth Funduk, Counsel for the Third Parties Andrea Dias, Counsel for the Defendant and Fourth Party, St. Joseph’s Healthcare Hamilton

HEARD: April 30, May 1, and 2, 2019

ENDORSEMENT ON MOTIONS FOR SUMMARY JUDGMENT

Overview

1At 12:10 p.m. on October 27, 2012, the co-defendant, Lauren Stephen (the “Son”) was discharged from St. Joseph’s Healthcare Hamilton following an overnight involuntary admission for a psychiatric evaluation. Less than 30 minutes later, the Son drove head-on into a vehicle driven by a plaintiff, Nadia Moushi (the “Moushi Vehicle”). The Son was driving a vehicle owned by his mother, Brenda Stephen, a defendant and fourth party in these proceedings (the “Mother’s Vehicle” and the “Mother,” respectively).

2At the time of the Son’s discharge, the plan was for him to start a three-day program at a detox centre later that afternoon. The Son was to be driven to the detox centre by the Mother, and the Son’s sister, Rachel, after stopping at the Son’s home so he could shower, change, and pack.

3When they arrived at his home, the Son grabbed the Mother’s car keys, jumped into the driver’s seat, locked the car doors, and sped off down the street. Moments later, he collided with the Moushi Vehicle. The plaintiffs’ claims relate to the injuries and losses flowing from the collision.

4The Son and the Mother each move for summary judgment.

5The Son seeks the dismissal of the plaintiffs’ claims and all crossclaims against him. The Son says that he is not civilly liable for his actions because he was suffering from a mental disorder at the time of the collision.

6The Mother seeks the dismissal of the claims against her, both as a defendant and as a fourth party. She asserts that the Son did not have her consent to possess the Mother’s Vehicle and, therefore, she is not vicariously liable for the collision or any injuries or losses caused by the Son. The Mother also denies that she was negligent.

7The parties agree that if I find that the Son did not have the Mother’s consent to possess the Mother’s Vehicle, in law, the Mother cannot be found vicariously liable to the plaintiffs for the injuries and losses arising from the Son’s operation of the Mother’s vehicle.

8The plaintiffs also claim against the Mother in negligence. They allege that the Mother failed to (a) ensure that the Son did not take the car keys from her, and/or (b) take proper “care and control” of the Son who, while in a “psychotic state,” was discharged into the Mother’s care.

9The Mother denies that she owed a duty of care to the plaintiffs and/or that she breached any duty owed.

10For the reasons set out below, I grant the summary judgment motions brought by the Son and by the Mother.

The Parties

11The plaintiffs sued the Son, the Mother, their own insurer, TD General Insurance Company (“TDGI”), and St. Joseph’s Healthcare Hamilton (the “Hospital”). The defendants delivered statements of defence and crossclaims.

12The Son issued a third party claim for contribution and indemnity from the doctors alleged to have been involved in his care while he was at the Hospital on October 26 and 27, 2012 (the “Doctors”). The Doctors defended the third party claim and the main action.

13The Doctors issued a fourth party claim seeking contribution and indemnity from the Mother and the Hospital.

The Parties’ Positions on the Motions

14The positions of the parties on the motions are as follows:

• plaintiffs oppose both motions for summary judgment;
• if the claims against him are not dismissed, the Son takes the position that the Mother should remain a party and her motion should be dismissed;
• the Mother takes no position on the Son’s motion;
• the Hospital takes no position on the Mother’s motion but opposes the Son’s motion;
• the Doctors take no position on the Mother’s motion; they support the Son’s motion; and
• TDGI takes no position on either motion.

Preliminary Issues

15While the two motions were argued separately, preliminary issues were raised that affected both motions. I deal first with the preliminary issues identified below:

(i) Can the motions for summary judgment be decided without determining whether, if the actions were dismissed as against the Son and the Mother, the plaintiffs would still have the potential to recover from TDGI and/or the Motor Vehicle Accident Claims Fund (the “Fund”)? (ii) If the answer to (i), above, is “No,” is the court able to determine that issue on the materials before it on the motions for summary judgment? (iii) Is the medical report prepared at the request of the plaintiffs by Dr. Derek Pallandi, psychiatrist, dated January 30, 2019 [1] (the “Pallandi Report”) properly before the court on the Son’s summary judgment motion?

Issue (i): Plaintiffs’ Potential to Recover from Either TDGI or the Fund

16At the outset of argument on the Mother’s motion, the plaintiffs submitted that if the Mother and Son are successful on their motions, the plaintiffs would be left without any recourse to motor vehicle insurance (i.e. including under the TDGI policy). That argument is also set out in the plaintiffs’ factum on the Son’s motion (paras. 63-64).

17The plaintiffs submitted that both the Mother and the Son owned automobiles covered by motor vehicle insurance and their respective vehicles are not “uninsured automobiles” for the purposes of the TDGI policy or the Fund. The plaintiffs assert, therefore, that if their claims against the Mother and the Son are dismissed, the plaintiffs would not have the right to pursue their first party claim against TDGI (uninsured or underinsured motorist coverage). The plaintiffs also submit that, for similar reasons, they would not be entitled to any recovery from the Fund.

18The Hospital argued that neither motion for summary judgment should proceed until a determination has been made as to whether the plaintiffs would be entitled to recover from TDGI and/or the Fund.

19The Son and Mother submit that the potential availability of this insurance is irrelevant to the issue of the respective liability of the Son and the Mother.

20The potential inability of the plaintiffs to recover under the TDGI policy or from the Fund was not identified as an issue in the motion records nor was it addressed in the affidavits filed. When the issue was raised at the hearing, the plaintiffs were invited to consider whether to request an adjournment of the motions so that the insurance issues could be properly pleaded, with supporting evidence. The parties whose interests were affected by the outcomes of the motions took the position that they would be prepared to have the court consider the availability of motor vehicle insurance, provided the plaintiffs made a formal admission that they would have no recourse against TDGI if the actions are dismissed as against the Son and the Mother.

21Although the plaintiffs initially made that admission, they were invited by the court to take the lunch hour to give it further consideration. When the hearing resumed, the plaintiffs asked to withdraw both the formal admission made that morning and the argument set out in paras. 63 and 64 of the plaintiffs’ factum on the Son’s motion. Those requests were granted.

Disposition of Issue (i)

22The issues on the motions are whether the Son had the Mother’s implied consent to possess the Mother’s vehicle, whether he was mentally ill such that he cannot be held civilly liable for his actions, and whether the Mother had a duty to the plaintiffs and breached that duty. The potential availability of insurance coverage is not relevant to the issues to be determined on the motions. Accordingly, I conclude that the determination of the motions for summary judgment does not depend on a determination of the insurance issue.

Issue (ii): Is the Pallandi Report Properly before the Court?

23The Son seeks to rely on the Pallandi Report to establish that, at the time of the collision, he was mentally incapable of understanding or appreciating the concept of a duty of care and was incapable of discharging any such duty.

24Dr. Pallandi was retained by the plaintiffs. They chose not to include the Pallandi Report in their motion materials. Rather, the Son includes the Pallandi Report in his motion materials, as an exhibit to the affidavit of Sonia Cianciosi, a law clerk employed with the Son’s lawyers. Ms. Cianciosi states that plaintiffs served the Pallandi Report on the Son’s lawyer on March 4, 2018 [sic]. [2]

25Initially, the plaintiffs submitted that the Son could not rely on the Pallandi Report because it lacks a Form 53, Acknowledgement of Expert’s Duty, as required by the [Rules of Civil Procedure] (https://www.ontario.ca/laws/regulation/900194) [3] (the “Rules”). Form 53 requires the expert to acknowledge that it is his/her duty to provide (a) opinion evidence that is fair, objective, and non-partisan, and relates only to matters within the area of that expert’s expertise, and (b) such additional assistance as the court may require.

26Later in the hearing, the plaintiffs additionally argued that the Pallandi Report ought not to be considered by the court because it was not attached as an exhibit to an affidavit sworn by Dr. Pallandi.

27The admissibility of an expert report that does not satisfy the requirements of r. 53.03(2.1) was considered in [Sanzone v. Schechter, 2016 ONCA 566, 402 D.L.R. (4th) 135] (https://www.minicounsel.ca/oca/2016/566) [4]. In Sanzone, in response to a motion for summary judgment brought by the defendants, the plaintiff sought to rely on a letter of opinion from their expert. The appellate court upheld the motion judge’s decision not to admit the letter, which lacked a proper statement of the dentist’s qualifications; did not set forth the reasons for the dentist’s opinion in the depth as required by r. 53.03 (2.1)(6); and was not accompanied by a Form 53.

28The Son submits that the court ought to permit him to rely upon the Pallandi Report because:

i) it was prepared by the plaintiff’s expert, pursuant to [s. 105 of the Courts of Justice Act, R.S.O. 1990, c. C.43] (https://www.ontario.ca/laws/statute/90c43) and r. 33, with the Son having been examined by Dr. Pallandi; ii) the plaintiffs’ decision not to rely on their expert’s report does not preclude the Son from relying on it; iii) at no time prior to the hearing did the plaintiffs object to the use of the Pallandi Report. The Pallandi Report was filed with the court on March 13, 2019. Had the plaintiffs given notice of their objection, the Son would have had the opportunity to either summons Dr. Pallandi to give oral evidence on this motion or seek leave to examine him pursuant to r. 39.03; iv) at no time prior to, or even at, the hearing did the plaintiffs move to strike any portion of Ms. Cianciosi’s affidavit; and v) the Son had no authority to require Dr. Pallandi to complete a Form 53, or to swear an affidavit. Dr. Pallandi was retained by and took instruction from the plaintiffs and their counsel, respectively.

29The Son asks the court to distinguish Sanzone on its facts and, instead, to adopt the reasoning of Edwards J. in [Duggan v. Lakeridge Health Corporation, 2017 ONSC 7340] (https://www.minicounsel.ca/scj/2017/7340) [5], a medical malpractice action. In Duggan, the plaintiffs sought to rely on a report from the plaintiffs’ occupational therapist (the “OT”) in support of their r. 20 motion for an order that the defendant make a further advance payment. The defendant physician objected to the plaintiff’s reliance upon the OT report, which was before the court by way of an exhibit to an affidavit sworn by a law clerk in the office of plaintiff’s counsel. The defendant submitted that because the OT had not sworn an affidavit, the defendant was unable to cross-examine the OT. Despite the lack of strict compliance with r. 53.03, Edwards J. allowed the plaintiffs to rely on the OT report. Edwards J. noted that had the defendant wished to examine the OT, they could have done so pursuant to r. 39.03, as a witness on a pending motion.

30Edwards J. agreed with the court in [Doran v. Melhado, 2015 ONSC 2845] (https://www.minicounsel.ca/scj/2015/2845) [6], which noted that even if a party complies with r. 53, pursuant to [s. 52 of the Evidence Act] (https://www.ontario.ca/laws/statute/90e23) [7] a party still requires leave of the court for a report to be admissible as evidence. Although the procedural requirements of s. 52(2) of the Evidence Act and r. 53.03 had not been met in Duggan, Edwards J. concluded that the OT report was properly before him on the motion. He found that were he to disregard the OT opinion evidence, he would fail to give effect to r. 1.04, which requires the Rules to be liberally construed to ensure the “just, most expeditious and least expensive determination of every civil proceeding on its merits.” [8]

31I accept the Son’s submissions that Sanzone is distinguishable on its facts. Unlike the report proffered in Sanzone, the Pallandi Report includes details of Dr. Pallandi’s training and experience, as well as most of the information required under r. 53.03 (2.1). [9]

32I find the reasoning of Edwards J. in Duggan to be applicable to this case and the facts here to be even more compelling than in Duggan. Dr. Pallandi is the plaintiffs’ expert. In the circumstances, I have no concern about lack of impartiality or potential bias on Pallandi’s part, to the prejudice of the plaintiffs.

33The plaintiffs retained Dr. Pallandi as their expert and chose the questions put to him. These questions are central to the issues on these motions. In addition to his examination of the Son, Dr. Pallandi was able to review the Son’s medical records, various psychiatry reports, and the opinions/reports of Dr. Olubukola Kolawole, the court-appointed forensic psychiatrist who prepared reports for use in the Son’s criminal trial. Dr. Pallandi was also provided with the pleadings in this action, the Son’s motion record, video files, the affidavit of James P. Lemyre, an independent eyewitness to the collision, the file from the Ministry of the Attorney General, and the motor vehicle accident report of October 27, 2012.

Disposition of Issue (ii)

34For all the reasons set out above, I conclude that the Pallandi Report is properly before me.

The Motions: An Overview

The Mother’s Motion

35The Mother’s motion for summary judgment was argued prior to the Son’s motion. In broad terms, the issues to be decided on the Mother’s motion are:

(i) Is a motion for summary judgment appropriate in this case? (ii) Did the Son have the Mother’s implied consent to possess the Mother’s vehicle? (iii) Did the plaintiffs suffer injuries and losses by reason of the negligence of the Mother?

The Son’s Motion

36Stated broadly, the issues to be decided on the Son’s motion are:

(i) Is a motion for summary judgment appropriate in this case? (ii) Did the Son suffer from an acute mental disorder that rendered him incapable of understanding or appreciating a duty to take care for others and/or rendered him unable to discharge that duty?

Evidence on the Motions: An Overview

37The collision occurred on October 27, 2012. As of May 2019, examinations for discovery had not yet taken place. For the last two years, the parties have focused on the motions for summary judgment. That focus has resulted in an ample evidentiary record.

38The evidence on both motions includes affidavits from key parties and witnesses. While separate motion records were filed on each motion, some evidence applied to both motions - such as the transcripts from the cross-examinations. Exhibits to affidavits filed include the Son’s medical records; the Pallandi Report; the motor vehicle accident report; the transcripts of the cross-examinations of the Son, Mother, and Dr. Kolawole; and the transcripts of the Son’s criminal trial before Culver J. [10] and of his hearing before the Ontario Review Board.

39The expert opinions of Drs. Kolawole and Pallandi are largely based upon the Son’s medical records and their respective examinations of the Son. Drs. Kolawole and Pallandi reviewed other evidence, including the accident report, and the affidavit evidence of the parties and eye witness, James P. Lemyre. Mr. Lemyre was not cross-examined on his affidavit.

40The Son recovered from the one-time psychotic episode that preceded the collision. The experts and treating physicians agree that the Son’s psychotic episode was caused by substance abuse. The Son has since been able to abstain from abuse of alcohol and marijuana. Both the plaintiffs and the Son acknowledge that the Son’s memory of events is poor.

Findings of Facts

41For the most part, the parties agree on the facts relevant to both motions. Based on the evidence put forth on both motions or as summarized in the parties’ facta, [11] I find the following facts:

(a) on October 27, 2012, the Son was 37 years old and lived in Hamilton. He left home permanently in 1994 to attend university, attained a PhD in English, and, pre-collision, taught at McMaster, Laurier, and York Universities; (b) in 2007 and 2008, while a student at McMaster, the Son was counselled and treated for paranoid and delusional thoughts and hallucinations associated with “polysubstance misuse” (THC and alcohol); (c) before October 2012, the Son had never experienced a psychotic episode; (d) the Mother lived with her husband in Orangeville, Ontario. She is a retired schoolteacher. She has one other child, the Son’s younger sister, Rachel; (e) in the months and weeks leading up to the collision, the Son was using alcohol and marijuana regularly. He was feeling low, had financial problems, and was involved in a dispute with his landlord. He became depressed and paranoid and felt that others were conspiring against him. He believed he was under surveillance for weeks prior to the collision. He was misinterpreting things, especially as they concerned his landlord; (f) on October 25, 2012, the Son felt unsafe in his apartment and stayed at a friend’s house; (g) on October 26, 2012, the Son called the Mother. He told her that he wanted to come home and asked her to come get him as he did not want to drive himself. He stated that he was in a very dark place. The Mother realized the Son was having some sort of breakdown, contacted the hospital in Orangeville, and was advised that it would be better for the Son to seek mental health services in Hamilton. The Mother drove to Hamilton that day, met the Son at the friend’s home, and took him to his own home, where they talked for about two hours. The Son was weeping, sweating, and shaking. The Son wanted the Mother to take him to her home in Orangeville. Instead, she took him to the local hospital; (h) at the hospital, the Son continued to sweat, shake, and weep. He told the Mother how much he loved her and his sister and that “he didn’t know if he could come through this, that he didn’t know if he could go on”; (i) after being in the hospital triage area for perhaps an hour, the Mother noticed a change in the Son’s mood: he told her to go home and look after his father and that he would wait alone for a referral to a psychiatrist. The Mother thought to herself “How dumb do you think I am?”; (j) the Mother got up and spoke to a police officer at the opposite side of the triage area; (k) the Mother identified the Son to the officer and said “He is saying to me that he doesn’t know if he could go on. I think he might try to end his life. Please don’t let him leave this hospital”; (l) the Mother returned to sit beside the Son. About ten minutes later, the Son “bolted” toward the police officer. The Mother thought the Son was just trying to get away from everybody; (m) the Mother saw the police officer and a security person tackle the Son and handcuff him; (n) the Mother did not see the Son reach for the policeman’s gun and did not know he had done so until after the collision. The following day, the Mother learned that the Son had attacked the police officer to get his gun, and hoped to get shot. She learned this through her stepson, who came to Hamilton after the collision. The stepson spoke to a policeman at the collision scene and was told that the Son had tackled a police officer in the triage area of the hospital the previous day and had reached for his gun; (o) following the police incident, the Son told the hospital psychiatrist that he had tried to pull the officer’s gun, hoping he would be shot in an attempted “suicide by cop.” Because of that disclosure, the Son was admitted to the hospital under a [Form 1] (https://www.ontario.ca/laws/statute/90m07) [12] — an involuntary admission. The Mother left the hospital at approximately 11:30 p.m. on October 26, 2012; (p) on October 26, 2012, the treating doctors agreed on a management plan. The Son would remain in the hospital overnight for observation of mental status and withdrawal symptoms. Upon psychiatric assessment on the morning of October 27, 2012, if the Son was deemed stable, he would be discharged to a detoxification facility for addiction treatment; (q) the Mother returned to the hospital at 7:30 a.m. on October 27, 2012. The Son did not look much better to the Mother that morning. She went through the Son’s papers and noticed writing on the back of one paper that was a heart with the word “Mom” in it and the sentence “To all my friends and family, I love you.” The Mother showed the note to Dr. Singh, who asked the Son if he was going to harm himself. The Son said “No”; (r) the Mother thought the Son’s writing was a suicide note. Dr. Singh asked the Son why he denied that he was going to harm himself. The Son responded: “Because of the devastation to his family if I did that.” On cross-examination, the Mother was asked whether she believed the Son to be sincere in this answer. She responded that she did not know what to believe: at that time, she was coping also with the care of her elderly husband, who had lost an eye and part of his face to cancer, had COPD, was on oxygen, and had Alzheimer’s disease. Things were “extremely stressful”; (s) on the morning of October 27, 2012, Dr. Singh reassessed the Son. He noted that the Son had remained stable overnight, denied any suicidal ideation, and had “contracted for safety.” Rachel arrived at the Hospital at approximately 8 a.m.; (t) from the Hospital that morning, the Son telephoned a detox centre to arrange for a three-day stay. A doctor at the Hospital asked the Mother whether she and Rachel were “okay” to transport the Son to the detox centre. The Son was cleared for discharge from the psychiatry service. The plan was that he would attend the detox centre once a bed became available. The Mother and Rachel agreed to take the Son to the detox centre following his discharge from the Hospital. They planned to stop first at the Son’s apartment, so he could change out of the clothes he had been wearing for three days, shower, and gather some belongings, before going to the detox centre; (u) when she agreed to drive the Son to the detox centre, the Mother did not know that he had attacked the police officer to get his gun. She thought that information might have made a difference to her but she “wasn’t the medical professional in charge”; (v) the Mother, Rachel, and the Son took the Mother’s car to the Son’s home on Market Street, Hamilton. The Son sat in the front seat, not saying much, sweating, and looking “terrible” and “not himself”; (w) upon arrival at Market Street, the Mother stopped the car and turned it off. According to the Mother, the Son reached over very quickly and grabbed the car keys. She thought the Son was going to use the keys to open the trunk. She told him that she could just have flipped open the trunk. The Son did not respond. He walked to the back of the car and used the keys to open the trunk. Rachel reached in to get her laptop. While the three of them were at the trunk, the Son went behind the Mother and Rachel, got into the driver’s seat, and locked the car doors; (x) the Mother described the Son taking her car keys a “split-second grabbing” and “quick as a rabbit.” When he took the keys, the Mother did not try to stop the Son or to grab them back; she assumed he wanted the keys to get into the trunk. The Mother described the events on her cross-examination: [13]

This all happened very quickly. If the people at St. Joseph’s didn’t recognize that he was in a psychotic episode, I certainly didn’t. I knew he was in a bad place. It never crossed my mind that he wanted to do anything other than open the trunk to get his belongings. Then when he finally went into my driver’s side, it was so quickly, neither me nor my daughter had any chance to stop him” [sic];

(y) the Mother stated that she did not realize the Son’s intentions “in the split-second that it took him to do that. [But] I clued in very quickly, his sister even quicker.” Rachel banged on the car window asking him “don’t do this, don’t do this.” Both Rachel and the Mother tried to open the car doors, but could not get in. Both of them were yelling at the Son to stop; (z) the Son then drove the Mother’s Vehicle eastbound on Market Street and collided head-on with the Moushi Vehicle. The Son does not have a clear memory of what happened. His intention was to kill himself by driving into the concrete barrier at Copps Coliseum; (aa) at the time of the collision the Son thought he was being chased by “people” who wanted to apprehend him, and his only way of escape was suicide; and (bb) Mrs. Moushi, who was 36 weeks’ pregnant, was injured in the collision. She underwent an emergency caesarian section following the collision. The baby was hospitalized for two weeks after birth. [14]

42I turn now to the law relevant to the issues on the motion.

The Law on Summary Judgment

43Rule 20.04(2)(a) of the [Rules of Civil Procedure] (https://www.ontario.ca/laws/regulation/900194) provides that the court shall grant summary judgment if the court is satisfied that there is no genuine issue requiring a trial with respect to a claim or defence.

44As set out in [Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87] (https://www.minicounsel.ca/scc/2014/7) [15], there will be no genuine issue requiring a trial:

…when the judge is able to reach a fair and just determination on the merits on a motion for summary judgment. This will be the case when the process (1) allows the judge to make the necessary findings of fact, (2) allows the judge to apply the law to the facts, and (3) is a proportionate, more expeditious and less expensive means to achieve a just result.” [16]

45To be appropriate, summary judgment must provide a “fair and just adjudication” that allows the judge to “find the necessary facts and resolve the dispute. [T]he standard for fairness is not whether the procedure is as exhaustive as a trial, but whether it gives the judge confidence that she can find the necessary facts and apply the relevant legal principles so as to resolve the dispute.” [17]

46Rule 20.04(2.1) of the [Rules of Civil Procedure] (https://www.ontario.ca/laws/regulation/900194) sets out the powers of the court on a motion for summary judgment:

(2.1) In determining under clause (2)(a) whether there is a genuine issue requiring a trial, the court shall consider the evidence submitted by the parties and, if the determination is being made by a judge, the judge may exercise any of the following powers for the purpose, unless it is in the interest of justice for such powers to be exercised only at a trial:

(1) Weighing the evidence. (2) Evaluating the credibility of a deponent. (3) Drawing any reasonable inference from the evidence.

47Hryniak offers a “roadmap” for a summary judgment motion, at para. 66:

On a motion for summary judgment under Rule 20.04, the judge should first determine if there is a genuine issue requiring trial based only on the evidence before her, without using the new fact-finding powers. There will be no genuine issue requiring a trial if the summary judgment process provides her with the evidence required to fairly and justly adjudicate the dispute and is a timely, affordable and proportionate procedure, under Rule 20.04(2)(a). If there appears to be a genuine issue requiring a trial, she should then determine if the need for a trial can be avoided by using the new powers under Rules 20.04(2.1) and (2.2). She may, at her discretion, use those powers, provided that their use is not against the interest of justice. Their use will not be against the interests of justice if they will lead to a fair and just result and will serve the goals of timeliness, affordability and proportionality in light of the litigation as a whole.

Positions of the Parties

(a) The Mother’s Motion

48The plaintiffs identify two areas in the Mother’s evidence that they submit give rise to credibility concerns that can only be addressed by a trial. First, is the Mother’s inconsistency in her answers about whether the ignition was on or off when the Son grabbed the keys from the ignition. [18] Second, is the Mother’s assertion that she did not know about the Son’s purported “suicide by cop” (when the Son tackled the police officer at the Hospital and grabbed the officer’s gun, hoping to get shot).

49The Mother says that she learned of this purported suicide attempt from her stepson, who had heard about it from a police officer at the scene of the collision. The plaintiffs do not believe the Mother.

50The plaintiffs submit the Mother’s evidence on these two points is important to the issue of whether she was negligent with respect to watching over her car keys or in her alleged “care and control” of the Son after his discharge from the Hospital. The plaintiffs assert that the Mother ought to have foreseen the Son’s actions and should, therefore, have (a) guarded against the Son grabbing her keys, or (b) immediately demanded them back.

51The Son agrees with the plaintiffs and submits that a jury would not believe the Mother. However, the Son acknowledges that if the action is dismissed as against him, he need not take a position on the Mother’s motion. His alternative position is that if he is to remain in the action, the Mother should also remain; a trial would be required to determine the respective liability of the Mother and Son.

(b) The Son’s Motion

52The plaintiffs submit that the Son’s assertion that he is not liable for his actions by reason of a mental disorder is an issue that requires a trial. The plaintiffs question the admissibility and/or the reliability of the opinions of Drs. Kolawole and Pallandi, each of whom concludes that the Son’s psychotic symptoms were such that he could neither understand, nor appreciate, the nature and quality of his actions, nor that what he was doing was wrong.

Analysis

53On a motion for summary judgment, the court is entitled to assume that the parties have put before it all the evidence that will be available for trial. [19] I am satisfied that the parties understand their evidentiary obligations on these summary judgment motions and have put before me all the evidence they deem relevant to the issue of the liability of the Son and of the Mother, respectively.

54There is a fulsome evidentiary record. The key witnesses provided sworn evidence, on which they were cross-examined. I am satisfied that I am able to make the necessary findings of fact.

55The plaintiffs concede that the Son did not have the Mother’s express consent, but submit that the Son had the Mother’s implied consent, to possess the Mother’s Vehicle. The plaintiffs submit that the Mother’s handling of the keys to the Mother’s Vehicle, before the Son grabbed them, and her failure to demand the immediate return of keys, is relevant to whether the Son had the Mother’s implied consent to possess the Mother’s Vehicle and/or whether the Mother was negligent in her handling of the keys.

56The plaintiffs and the Son assert that the Mother’s evidence gives rise to credibility issues, which can only be resolved at a trial.

The Keys to the Mother’s Vehicle:

57Overall, the Mother’s evidence is uncontradicted and clear. She had some uncertainty about whether, when the Son took her keys from the ignition, the car was turned off or was still running. The plaintiffs and the Son assert that the Mother’s lack of certainty on this point is a credibility issue, and a trial is required to reconcile inconsistencies in the Mother’s evidence. For the reasons set out below, I disagree.

58First, I find that little turns on inconsistencies in the Mother’s recall of certain details surrounding the Son’s grabbing of her keys: the parties agree that the Son took the keys from the Mother without her express consent. The Mother acknowledges that she did not immediately ask for her keys back. The Mother’s lack of certainty about whether the car was on or off is of little importance. It is undisputed that they had just arrived at the Son’s home when he grabbed the keys.

59This is not a case in which car keys were left lying around or stored in a place easy to discover or known to the person who was then able to take them without the express consent of the vehicle owner. In such cases, details about how and where the keys were found when taken may be relevant. [20] Here, the parties concede that the Son snatched the keys from the ignition upon arrival at his home. The Mother stated that the taking of the keys took “split seconds” and was over “like that.” [21] The Mother’s evidence on this point is uncontradicted: the Son admits that he does not have a clear memory of the events surrounding the collision, given his mental state at the time.

60The Mother’s uncertainty about whether the car was running when the Son grabbed the keys does not give rise to a credibility issue that requires a trial to resolve. The evidence on its face is sufficient to explain the Mother’s uncertainty about this momentary event.

61Further, even if I were to find that the Mother’s evidence with respect to the keys gives rise to a credibility issue, I have chosen to exercise my discretion to use the extended powers under r. 20.04 (2.1) to evaluate the Mother’s credibility. I conclude that using those powers is not against the interests of justice. The use of those powers will lead to a fair result, while serving the goals of timeliness, affordability and proportionality.

62In finding the Mother’s testimony to be credible I have considered that:

(a) she freely admitted that after the Son grabbed her keys, she did not ask for them back, despite that her admission could be seen as against her interest; (b) the Mother’s lack of certainty concerning details of the events in the moments prior to when the Son took the car keys, is reasonably explained by the rapidity with which the events unfolded; (c) in assessing the Mother’s ability to recall the moments prior to the collision, it is appropriate to take into account what she had been through in the hours and day that preceded the key grab and, that she had arrived in Hamilton already burdened with concern over her ailing husband, whom she had left at home; (d) the Mother’s evidence is uncontradicted that when the Son grabbed the car keys, she believed he wanted them to open the trunk and that the Son did, in fact, use the keys to open the trunk; (e) the Mother’s evidence is uncontradicted that when she, the Son, and Rachel were standing behind the trunk while Rachel removed her laptop, the Son unexpectedly dashed to the driver’s seat of the car and locked the car doors; and (f) the Mother’s uncontradicted description of her and Rachel trying to open the car doors, pounding on the windows, and asking the Son to stop is consistent with the Mother’s evidence that the Son’s actions were unexpected and unpredictable.

The Mother’s Knowledge of the Son’s Mental State:

63The plaintiffs and the Son submit that the Mother lacks credibility in her evidence that she did not learn of the purported “suicide by cop” until after the collision, via her stepson. They argue that the Mother’s knowledge of this event is important to their submission that the Mother knew of the Son’s mental condition and was therefore negligent in her care of her car keys and/or her care or supervision of the Son.

64Neither the plaintiffs nor the Son can point to any evidence that contradicts the Mother’s evidence about when she learned of the purported suicide. Their submission that a jury would simply not believe the Mother, is supposition, unsupported by the evidence.

65Based on the Mother’s uncontradicted evidence, I find as a fact that the Mother did not know of the Son’s attempted “suicide by cop” until after the collision with the Moushi Vehicle. Therefore, the Mother’s knowledge of the Son’s mental state must be determined without consideration of that event.

66The Mother’s evidence about what she knew or believed about the Son’s mental state on and after his discharge is apparent on the face of the record and uncontradicted. The Mother thought that the Son looked “terrible” and was “not himself.” The Mother had no idea the Son was suicidal and/or experiencing a psychotic episode. The Mother accepted the opinions of the “medical professionals” that the Son was fit to be discharged. The Mother says that if the medical professionals did not believe the Son was suicidal or psychotic, how could she have known?

67The Mother’s evidence is supported by the other uncontradicted evidence that:

(a) one or more of the Doctors had observed the Son overnight in the Hospital and found him to be stable; (b) when the Son was discharged on October 27, 2012, the medical staff/Doctors did not observe the Son to be suicidal or showing psychotic symptoms; and (c) although she had raised her concerns with Dr. Singh prior to the Son’s discharge, Dr. Singh and the other medical professionals at the Hospital deemed the Son fit to be discharged, regardless of whether a bed was available that day at the detox centre.

68There no evidence to contradict the evidence of the Mother as to her knowledge of the Son’s mental state at the time of discharge.

69Having weighed the evidence and evaluated the Mother’s credibility, I conclude that there is no genuine issue requiring a trial as to the Mother’s knowledge of the Son’s mental state. I find as a fact that at the relevant times the Mother did not know that the Son was experiencing a psychotic episode or that he was suicidal.

Disposition of Issue 1: Is a Motion for Summary Judgment Appropriate with Respect to the Mother’s Motion?

70For the reasons set out above, I am satisfied that am able to make the necessary findings of fact and that there are no genuine issues that require a trial. I further conclude that by this process I am able to apply the law to the facts as I have found them, and that it is a proportionate and more expeditious and less expensive means than a trial to achieve a just result.

Issue 2: At the Time of the Collision, did the Son have Implied Consent to Possess the Mother’s Vehicle?

71While the plaintiffs concede that the Son did not have the Mother’s express consent to possess the Mother’s Vehicle, they assert that the Mother has failed to discharge her onus to prove that she did not give the Son her implied consent to possess the Mother’s vehicle.

72The plaintiffs submit that for the following reasons, the court should conclude that implied consent was given:

(1) the Mother allowed the Son to take her keys; (2) the Mother did not ask the Son to return the keys; (3) the Mother did not revoke prior consent, given to her Son in the past.

73The facts as I have found do not support a finding that the Mother “allowed” the Son to take her keys. Rather, the facts as I have found them support a finding that the Son grabbed the keys quickly from the ignition of the Mother’s Vehicle.

74There is no dispute that the Mother did not ask the Son to return the keys. She assumed the Son wanted the keys to unlock the trunk.

75The Mother’s evidence is clear and uncontradicted that, until the Son had locked himself in the car, it never crossed her mind that in taking the keys he wanted to do anything other than to open the trunk to get his belongings.

Analysis

76[Section 192(1) of the Highway Traffic Act, R.S.O. 1990, c. H.8] (https://www.ontario.ca/laws/statute/90h08) states:

192 (1) The driver of a motor vehicle or street car is liable for loss or damage sustained by any person by reason of negligence in the operation of the motor vehicle or street car on a highway.

77The case law is clear that an owner of a vehicle will be vicariously liable if the owner has entrusted possession of the vehicle to another who has driven the vehicle and caused a collision. Further, the owner cannot escape liability on the basis that possession of the vehicle was given but there was no permission to operate the vehicle.

78The plaintiffs refer to [Berube v. Vanest] (https://www.canlii.org/en/on/onsc/doc/1991/1991canlii7563/1991canlii7563.html) [20]. In that case, the negligent driver, Vanest, knew the owner of the car and had offered to buy it. The owner told Vanest that the car was not for sale but that he would consider selling at the right price and suggested that Vanest take the car for a spin someday. When Vanest was at the owner’s home, he caught the car keys that had been tossed by the owner to another friend. Later that evening, Vanest was in a collision while driving the owner’s car.

79The court found that the owner (a) knew that Vanest had caught the keys, and (b) did not demand their return. The court concluded that the owner’s open invitation to Vanest to take the car for a spin, coupled with his knowledge that Vanest had caught the keys, was sufficient to establish implied consent for Vanest to use the vehicle.

80The facts in the matter before me are distinguishable from those in Vanest. First, the Mother did not give the keys to the Son, he grabbed them. Second, the Mother remained with the vehicle and did not relinquish its possession to the Son. Third, as soon as she realized that the Son intended to use the keys to operate the car, the Mother tried to regain control of the car.

81The facts here bear some similarity to those in [Bonter v. Laird, 2019 ONSC 2604] (https://www.minicounsel.ca/scj/2019/2604) [23]. In Bonter, the owner of the car had given the keys to the defendant, so he could retrieve his cigarettes from the car. The court rejected the submission that implied consent was given when the owner gave the keys to the defendant without also giving explicit instructions not to drive the vehicle.

82The court concluded that giving the keys to someone to allow them to retrieve personal property from your car is not giving possession of your car to them; it is giving them the keys to get something out of the car. The court found that the question of whether a motor vehicle is in the possession of someone without the consent of the owner is a question of fact to be determined on the evidence in each case (Bonter, at para. 24).

83The court in Bonter declined to grant summary judgment. The motion judge concluded that there was a triable issue of whether, when the owner handed over the keys, she had a suspicion that they might be used to drive the car. That suspicion gave rise to a triable issue of whether the owner ought to have accompanied the defendant to the car to ensure that he used the keys only to retrieve his cigarettes.

84Where the facts in this case differ from those in Bonter is that, unlike in Bonter, here, the owner of the vehicle did not willingly hand over the keys. Also, unlike the owner in Bonter, here, the uncontradicted evidence is that the Mother did not suspect that the Son might use the keys to drive the Mother’s Vehicle until after he had locked himself in the vehicle.

85The plaintiffs also referred to the Alberta Queen’s Bench decision in [Ezzedine v. Dalgard, 2006 ABQB 826, 405 A.R. 296] (https://www.canlii.org/en/ab/abqb/doc/2006/2006abqb826/2006abqb826.html) [24]. The facts in that case are so different from the facts here that it is not helpful.

86The Mother relies on the recent Ontario Court of Appeal decision in [Fernandes v. Araujo, 2015 ONCA 571, 127 O.R. (3d) 115] (https://www.minicounsel.ca/oca/2015/571) [25]. The issue in that case was limited to whether the owner of the car was vicariously liable for its negligent operation. The appellate court agreed with the lower court that the subjective belief of the driver that he/she did or did not have the owner’s consent to drive the vehicle was a factor in determining if the owner had given consent, but was not determinative.

87The evidence here is that the Mother pounded on the car windows before the Son drove off. Ordinarily, that would be clear evidence that the driver could not have believed that he had the owner’s consent. Also, the way in which the Son took the keys and “quick as a rabbit” [26] ran behind the Mother and Rachel into the driver’s seat and locked the car doors, certainly suggests that the Son knew he did not have the Mother’s consent to possess the Mother’s Vehicle. However, the plaintiffs argue that neither the way by which the Son obtained the keys nor the Mother’s reaction to his jumping into the Mother’s Vehicle (pounding on the windows and telling him to “stop” and “don’t do this”) are evidence that the Son knew he did not have the Mother’s consent. The plaintiffs submit that due to the Son’s psychotic state, the Son could not understand or appreciate that he was possessing the Mother’s Vehicle without the Mother’s consent.

88Even if it could be concluded that the Mother’s momentary delay in demanding the return of the keys could be interpreted as implied consent, which is not the conclusion I draw, once the Son’s intentions were revealed, the Mother’s actions in yelling at him to stop and pounding on the car’s windows clearly support a finding that consent was withdrawn before the Son drove away. I find that the Mother’s actions after she realized what the Son wanted with the keys is evidence that weighs against a finding of implied consent.

89While it was not strenuously argued, in their factum the plaintiffs submit that a further ground for a finding of implied consent is that the Mother did not revoke consent to possess the Mother’s Vehicle given to the Son years earlier.

90I reject that argument: the undisputed evidence is that the Son had lived away from home for 18 years, owned his own vehicle, and had not driven a vehicle owned by the Mother for many years. Given the events both before and after the Son took the keys to the Mother’s Vehicle, there was no reason for the Mother to have expressly told the Son that she was revoking any long-ago given consent to possess the Mother’s Vehicle.

Disposition of Issue 2: Did the Son have Consent to Possess the Vehicle?

91For the reasons set out above, I conclude that the Son had neither the Mother’s express, nor implied, consent to possess the Mother’s Vehicle.

Issue 3: Was the Mother Negligent?

92The plaintiffs and the Son both assert that the Mother was negligent in failing to prevent the Son from grabbing the keys and/or in failing to exert proper care and control over the Son who, they submit, had been entrusted to the Mother’s care.

93Successful negligence claims require the plaintiff to prove that the defendant owed them a duty of care, the defendant breached that duty, and the plaintiff suffered injuries or losses and/or damages as a result of that breach.

94The plaintiffs assert that the Mother owed them a duty of care because:

(i) the parent-child relationship between the Mother and the Son; (ii) the Son had been allegedly discharged into the Mother’s care; and/or (iii) as its owner, the Mother had a duty to guard the keys to the Mother’s Vehicle.

95The duty created by the parent-child relationship appears to be limited to parents of minor or mentally incapable children. [27] The Son is an adult child. Notwithstanding the opinions of Drs. Kolawole and Pallandi that the Son was experiencing a psychotic episode at the time of the collision, that episode was not apparent to the doctors when they discharged the Son; nor was the episode apparent to the Mother.

96The facts as I have found them, do not support a finding that the Mother knew, or ought to have known, that the Son was in a psychotic state when he was discharged. As a result, there is no basis for a finding that a duty of care existed by reason of the Son’s condition at the time of discharge, or at any time prior to the collision.

97I also conclude that the evidence does not support the plaintiffs’ assertion that the Son was “discharged” into the Mother’s “care or control,” thereby creating a duty of care on the Mother to control the Son’s actions.

98The Son’s discharge is documented in the medical records and affidavit evidence. Those records clearly state that, on October 27, 2012, the Son was discharged without condition. There is no basis upon which to conclude that the Son was discharged into anyone’s “care or control.” The Son was free to leave the hospital, as he did.

99There is also no evidence to support a finding that, by agreeing to drive the Son to the detox centre, the Mother assumed the “care and control” of the Son. First, the Son was unconditionally discharged from the Hospital. Second, the Son’s planned admission to the detox centre was arranged by him personally, based on his free choice. Third, in the event no bed was available in the detox centre, the Hospital had no plans to keep the Son. Rather, if no bed was available, the plan was to release the Son that day and allow him to arrange for addiction treatment at some later date.

100There is nothing in the medical records or in the evidence to support a finding that the discharge was dependent upon the Mother assuming the “care and control” of the Son until such future time as he might secure a bed in a detox facility.

101The Mother submits that Canadian courts have repeatedly held that individuals do not owe a duty to third parties to control the actions of independent adults, including the former’s adult children. [27] The Mother places particular reliance on [Irvine v. Smith, [2008] O.J. No. 547 (S.C.)] (https://www.canlii.org/en/on/onsc/doc/2008/2008canlii10000/2008canlii10000.html) [29], in which the father of an adult son was found not liable for the son’s acts while the son was experiencing a period of mental illness.

102In Irvine, the son began to experience psychiatric symptoms while away at university. His parents drove to London, Ontario to bring him home. Upon arrival, the son’s father, a family doctor, found the son to be lucid and coherent. However, at approximately 1:30 a.m., the son began to behave strangely, exhibiting paranoid symptoms. The son suddenly bolted from the house and ran down the street. The police were called and the son was found and brought home, again apparently lucid and coherent. The son’s parents took turns watching over the son through the night. The son bolted a second time at approximately 3:30 a.m. His parents gave chase but were unable to catch him. Some two hours later, the son jumped into the path of a truck and was killed. The parents sued the truck driver, who counterclaimed for nervous shock, PTSD, etc. as a result of the incident.

103The truck driver asserted that the father owed him a duty of care and breached that duty by failing to take the son to a hospital for a psychiatric assessment. The truck driver argued that had the father taken the son to a hospital, the son would not have been able to run away the second time and the truck driver would not have struck the son.

104The court concluded that the father was not liable to the truck driver. At para. 31, the court stated:

Dr. Irvine [the father] was not in a legal relationship of supervision and control over Paul [the son] because Paul was neither a minor, nor was he mentally incapable on the date of the accident. It is true that Paul had been acting from time to time in a bizarre manner and he was exhibiting signs of psychosis. However, he had not been found mentally incapable and for reasons more fully articulated below, I am not persuaded that he probably would have been, had he been taken to hospital.

105In Irvine, the court considered the allegations made against the father, which included that he failed to adequately supervise his son when he knew or ought to have known of his son’s emotional and paranoid condition (at para. 35). The court concluded that the father’s conduct had to be assessed in light of the fact that, as a doctor, he was familiar with the signs and symptoms of psychosis (at para. 40). Despite applying that higher standard, the court concluded that the father had not breached the requisite standard of care and that his actions were entirely reasonable. The father admitted that he knew that at times throughout the evening his son was acting strangely and concluded that he was suffering from a form of psychosis but he did not consider that the son intended to harm himself (at para. 43).

106The differences between the facts here and those in Irvine, weigh in favour of the Mother: she is not a doctor and is not subject to the higher standard imposed on the father in Irvine. Unlike in Irvine, here the Mother did take the Son to hospital. She brought her concerns to the Son’s doctors about what she thought was a suicide note and accepted and relied upon the treating physicians’ assessment that the Son was not suicidal. Although the Son had previously been thought to be possibly suffering from a form of substance-induced psychosis, at the time of his discharge, the treating psychiatrist determined that the Son was not at risk of harming himself or others. Moreover, the Mother told the discharging doctors that she intended to drive the Son home to shower and change before driving him to the detox centre. The doctors did not raise any concern about any risk that might be posed if the Mother drove the Son home or to the detox centre.

107Based on the facts as I have found them, I conclude that no duty of care was created by the Mother’s parent-child relationship to the Son nor because the Mother agreed to drive the Son home from the Hospital prior to dropping him at the detox centre.

108Last, the plaintiffs assert that the Mother was negligent in her care and control of the keys to the Mother’s Vehicle and of the Mother’s Vehicle itself.

109Courts have held car owners liable for injuries and losses caused by those who have stolen the owner’s car. Liability depends on the facts of each case. Car owners have been held liable for the negligence of the car thief because the owner left their keys in their car and parked the car near to a bar [30] or near some other place populated by intoxicated persons, making its theft by an impaired driver foreseeable. Car owners have been found liable in negligence for failing to secure their vehicle and keys when there is a real and substantial and foreseeable risk that the car may then be stolen by someone who was impaired and whose operation of the vehicle was likely to cause damage or injury to others. [31]

110The plaintiffs submit that the Mother must be found liable in negligence for the plaintiffs’ injuries and losses because, when the Mother was in control of her vehicle she:

(a) knew or ought to have known that the Son could take the keys and thereby gain possession of the vehicle; (b) knew or ought to have known that the Son was in a state of psychosis, and had impaired judgment (akin to someone impaired by alcohol); and (c) could reasonably have foreseen the real and substantial risk that the Son would take possession of her vehicle and drive it in a way likely to cause harm to himself or others.

111I reject the plaintiffs’ submissions set out above.

112First, the evidentiary record does not support a conclusion that the Mother knew, or ought to have known, that the Son was experiencing a period of psychosis or was in a psychotic state. Second, the evidence does not support a conclusion that the Mother could, or ought reasonably to, have foreseen that the Son would grab the car keys, take possession of the Mother’s Vehicle, and pursue a suicide plan that would place others at risk.

113On the basis of what was known to the Mother about the Son’s condition, including her reasonable reliance on the medical professionals, I conclude that the Mother acted reasonably in agreeing to drive the Son to his home before dropping him off at the detox centre. I also conclude that the Mother could not have anticipated the events that culminated in the collision.

114Therefore, I conclude that the Mother neither owed a duty to the plaintiffs or the Son as alleged, nor did she breach any duty. I accept the Mother’s submissions that her conduct is properly characterized as “nonfeasance”: there are no facts on which to conclude that the Mother committed any overt act that caused the collision.

115I accept the submissions of the Mother that the facts in this case do not fall under three enumerated situations that might give rise to a duty of care as set out in [Childs v. Desormeaux, 2006 SCC 18, [2006] 1 S.C.R. 643] (https://www.minicounsel.ca/scc/2006/18) [32]: (i) this is not a case in which the Mother’s actions or inactions attracted and invited third parties to an inherent and obvious risk; (ii) the Mother did not exercise a legal right of control and supervision over the Son; and, (iii) she did not exercise a public function or commercial enterprise.

116Finally, I accept the Mother’s alternative submissions that public policy concerns mitigate against a finding that, by agreeing to transport the Son home from the Hospital, and thereafter to a detox facility, the Mother should be held liable for the unforeseeable and unexpected actions of the independent, adult Son (see [Morrison v. Hooper, 2010 ONSC 4394, 322 D.L.R. (4th) 757] (https://www.canlii.org/en/on/onsc/doc/2010/2010onsc4394/2010onsc4394.html) [33]).

Disposition of Issue 3: Was the Mother Negligent?

117For the reasons set out above, I conclude that the Mother was not negligent.

Conclusion: Mother’s Motion

118For the reasons set out above, the Mother’s Motion for summary judgment is granted.

The Son’s Motion

119Argument on the Son’s motion followed the hearing of the Mother’s motion.

120The relevant facts are as set out above and will not be repeated.

121At paras. 100 -103 of the plaintiffs’ factum on the Son’s motion, they dispute two facts that are set out in the Son’s factum: (1) at para. 14 of his factum, the Son stated that he received no medication while at the Hospital, whereas the Emergency Room Records indicate that Lorazepam was prescribed to the Son. The plaintiff argues that the Hospital records do not show whether the Son was given the Lorazepam; and (2) at para. 14 of his factum, the Son states that he had been in the hospital for at least 24 hours at the time of the collision, whereas the Hospital Triage Record shows that the Son arrived at 14:58, approximately 22 hours before the collision.

122The plaintiffs submit that these factual issues are relevant to the Son’s state of mind at the time of the collision. I disagree. Discrepancies in the facts as set out in the Son’s factum, if any, do not give rise to a genuine issue that requires a trial. Moreover, whether the Son was given Lorazepam has not been identified as an issue by either psychiatric expert. The plaintiff did not cross-examine the Doctors or the Hospital. As for the time spent in the Hospital, in argument, the Son acknowledged that the Hospital Records should be accepted as accurate.

Position of the Parties

123The plaintiffs and the Hospital oppose, while the Doctors support, the Son’s motion. The Mother takes no position on the Son’s motion.

Issues to be decided in the Son’s Motion

124The Son identifies one issue: was he suffering from an acute mental disorder that rendered him incapable of understanding or appreciating a duty to take care for others?

125The plaintiffs identify four issues:

(a) What is the appropriate legal test to apply when a defendant seeks to avoid liability and negligence on account of mental illness? (b) If the ‘Buckley’ test applies, is there a triable issue regarding whether the Son has satisfied the burden of proving either that he lacked the ability to understand and appreciate the duty upon him to take care in the circumstances of the case or was unable to discharge the duty? (c) If the ‘Buckley/Fiala’ test applies, is there a triable issue regarding whether the Son has satisfied the burden of proving that he was afflicted suddenly and without warning with a mental illness? (d) Is this an appropriate matter for disposition on a motion for summary judgment?

Disposition of Issue (d): is this an Appropriate Matter for Disposition on a Motion for Summary Judgment

126I start with issue (d) as I have already addressed this issue earlier in these reasons. For the reasons given on the Mother’s motion, I conclude that the Son’s motion is also appropriate for summary judgment. Also, in addition to the comprehensive evidentiary record, I consider that on the issue of the Son’s mental state, the court is entitled to place significant weight upon the uncontradicted expert medical opinions of Drs. Pallandi and Kolawole. Both conclude that the Son’s mental illness deprived him of the ability to understand or appreciate the duty of care owed and/or prevented him from having any meaningful control over his actions.

127Addressed below are issues (a), (b) and (c) as identified by the plaintiffs.

Issue (a): What is the Appropriate Legal Test to Apply to a Defendant who Seeks to Avoid Liability and Negligence on Account of Mental Illness?

128The plaintiffs assert that the criteria defining mental illness to be employed in negligence law is still surrounded with uncertainty. They base those submissions on the learned text, Linden and Feldthusen, Canadian Tort Law, 10th ed. (Toronto: Carswell, 2015). At para 5.89 of that text, the authors state that the main test used in Canada is found in [Buckley v. Smith Transport Ltd., [1946] O.R. 798 (C.A.)] (https://www.canlii.org/en/on/onca/doc/1946/1946canlii77/1946canlii77.html) [34], followed, but doubted, in [Hutchings v. Nevin (1992), 9 O.R. (3d) 776 (Gen. Div.)] (https://www.canlii.org/en/on/onsc/doc/1992/1992canlii7564/1992canlii7564.html) [35]. The authors of the Linden text say that there are good reasons for rejecting the defence of mental illness in negligence and note that the Buckley test has been rejected by a number of courts. [36]

129Despite oral submissions and the submissions contained in the plaintiffs’ factum responding to the Son’s motion, the plaintiffs ultimately agreed that this court is bound by Buckley. Accordingly, the question to be asked on the Son’s motion is whether, at the time of the collision, the Son was able to understand and appreciate the duty of care he owed to the plaintiffs? If so, was he disabled from discharging that duty by reason of his mental disorder?

130In Buckley, Roach J.A. sets out the test to be applied to determine if a mentally ill person is liable in negligence:

It is always a question of fact to be determined on the evidence and the burden of proving that a person was without that appreciation and understanding and/or ability is always on those who allege it. Therefore, the question here, to my mind, is not limited to the bare inquiry whether or not [the driver] at the time of the collision was labouring under this particular delusion, but whether or not he understood and appreciated the duty upon him to take care, and whether he was disabled, as a result of any delusion, from discharging that duty. [34]

131Counsel for the plaintiffs and the Son agree that Buckley was most recently considered in this province in the 1992 Ontario General Division decision in [Hutchings v. Nevin] (https://www.canlii.org/en/on/onsc/doc/1992/1992canlii7564/1992canlii7564.html). In Hutchings, while suffering from a manic episode, the defendant arrived at the plaintiff’s home and offered to drive the plaintiff to work. While driving, the defendant advised that he had “seen the light” and that he and the plaintiff were going to “see God.” Moments later the defendant lost control of the vehicle, resulting in a violent collision.

132The court accepted that the defendant was suffering a manic episode at the time of the collision and was under the delusion that he was a son of, and on his way to see, God. The court accepted that the defendant was not able to understand and appreciate the duty of care he owed to the plaintiff at the time and/or that he was disabled from discharging that duty by reason of mental disorder.

133In Hutchings, the court noted that the “weight of authority in Ontario supports the traditional philosophy that protects the mentally disabled at the expense of their victims.” This philosophy is based on a policy “that people should not be held responsible when they do not know what they are doing.” While the court in Hutchings questioned whether Buckley “should be re-examined in light of legislative and social developments that have occurred since Buckley was decided in 1946,” Haines J. concluded that he should not undertake such a re-examination. He considered himself bound by Buckley.

Disposition of Issue (a): Legal Test to be Applied

134The plaintiff concedes that, like Haines J., I am also bound by Buckley and must apply the test as set out by Roach J.A.

Issue (b): Is There a Triable Issue Respecting Whether the Son has Satisfied the Burden of Proving that He lacked the Ability to Understand and Appreciate the Duty upon Him to Take Care in the Circumstances of the Case or that He was Unable to Discharge the Duty?

135The Son relies on the evidence of the two expert witnesses and reminds the court that he was found not criminally responsible (“NCR”) at his criminal trial.

The Evidence of Dr. Kolawole

136The Son was injured in the collision with the Moushi Vehicle and hospitalized. He was arrested and charged with theft of a vehicle; possession of stolen property (the Mother’s Vehicle); and dangerous driving causing bodily harm. The Son pleaded not guilty on the basis that he was not criminally responsible as a result of mental disorder. In support of that defence, Dr. Kolawole was appointed by the court to assess the Son. On June 5, 2014, the trial of the criminal charges proceeded before Culver J.

137At the Son’s criminal trial, Dr. Kolawole was qualified by the trial judge to give expert opinion evidence in the field of forensic psychology. Dr. Kolawole had prepared a report, dated December 18, 2013, which was filed as an exhibit at the criminal trial. That same report is now relied upon by the Son in support of his summary judgment motion.

138Dr. Kolawole’s opinion evidence at the criminal trial was that, on a balance of probabilities, the Son:

(a) was suffering from a mental disorder at the time of the offences; (b) could not appreciate the nature and quality of his actions; (c) could not appreciate that what he was doing was wrong; (d) was, at the time of the offences, suffering his first episode of psychosis; (e) that he was experiencing a “full-blown quite severe” psychotic episode and that his motive in driving the vehicle was to kill himself; (f) that his thought process was very narrow and was “trying to escape being captured and tortured”; (g) his intention at the time was to ram the car into a concrete barrier at the Copps Coliseum to kill himself; (h) although he understood that he was driving his car toward Copps Coliseum, “he didn’t appreciate the nature and quality of that offence; and (i) in his disordered state of mind, was deprived “of the ability to rationally evaluate what he was doing.” [38]

139Based on Dr. Kolawole’s opinion, and with the consent of the Crown, Culver J. concluded that the Son was NCR when he committed the criminal acts with which he was charged. The Son was found to have been suffering from a mental disorder, such that he was unable or incapable due to mental illness to appreciate that what he was doing that day was wrong.

140The conclusion reached by Dr. Kolawole is echoed by Dr. Pallandi.

141In the executive summary found in the Pallandi Report, Dr. Pallandi identifies and answers the following questions put to him by the plaintiffs:

1. Was Mr. Stephen suffering from a mental illness at the time of the accident? If yes, what is your diagnosis? I concur with Dr. Archie’s opinion that, at the time of the accident, Mr. Stephen was suffering from a substance induced psychosis, which is now long resolved and in remission. Similarly, he would have previously met diagnostic criteria for Cannabis and Alcohol Abuse Disorder but these, as well, are long in remission and functionally not relevant.

2. Whether on the balance of probabilities, as a result of his mental illness, Mr. Stephen lacked capacity to understand or appreciate the duty of care owed at the relevant time? From the clinical interview and review of the available documentation, I am of the opinion that, from a psychiatric perspective, Mr. Stephen would not be liable for his actions with regard to the motor vehicle accident of 27 October 2012, given that, as a result of his prevailing mental illness that was active at the time, he would not have been able to understand or appreciate the duty upon him to take care.

3. Or, as a result of the mental illness, the defendant was unable to discharge his duty of care as he had “no meaningful control” over his actions at the time of the relevant conduct fell below the objective standard? [sic] Equally, given the specifics of his mental disorder, which was abundantly clear at the material time, this would have certainly prevented Mr. Stephen from discharging this responsibility.

Can the Court Rely on the Evidence of Dr. Kolawole?

142The plaintiffs ask the court to note that the Crown took issue with Dr. Kolawole’s opinion that the Son was unable to understand the nature and quality of his act of driving at the rate of speed he did. The plaintiffs submit that although Culver J. found the Son to be NCR, he did not rely on that aspect of Dr. Kolawole’s opinion.

143At the request of the Son, Dr. Kolawole swore an affidavit in support of the Son’s motion. Dr. Kolawole also completed a Form 53 and provided a detailed CV. Dr. Kolawole was asked to provide his opinion as to:

(a) Whether Mr. Stephen suffered from a psychiatric disorder at the time of the motor vehicle accident that occurred on October 27, 2012; (b) If it is Dr. Kolawole’s opinion that Mr. Stephen was suffering from a psychiatric disorder at the time of the motor vehicle accident, whether the symptoms of the disorder prevented him from appreciating the nature and quality of his actions and/or knowing that his actions were wrong or in appreciating the potential consequences of his actions; and (c) Whether Mr. Stephen was able to appreciate his duty of care in respect of the operation of the motor vehicle and/or whether he was capable of discharging that duty on October 27, 2012.

144Dr. Kolawole noted that the Son had no prior criminal history and that his only prior psychiatric hospitalizations were immediately around the time of the accident.

145At pp. 4-6 of his affidavit, Dr. Kolawole stated that:

(a) at the time of committing the offences for which he was charged, the Son “was suffering from acute symptoms of psychosis, which included persecutory delusions, ideas of reference, impaired insight, suicidal ideation and impaired judgment” and that “the symptoms were so severe that they rendered him incapable of appreciating the nature and quality of his actions or of knowing that they were wrong.”; (b) in his opinion, at the time that the Son was operating the motor vehicle he “was labouring under acute psychotic symptoms as described in my reports that rendered him incapable of appreciating the nature and quality of his actions or of knowing they were wrong. I am further of the opinion that these acute psychotic symptoms prevented Mr. Stephen from appreciating his duty of care in connection with the operation of the motor vehicle in that he was not able to appreciate the risks he was taking and the potential consequences of his actions. Due to the onset and symptoms of this psychotic episode, he did not have the insight or opportunity to control or prevent his actions. He was therefore unable, due to his psychiatric disorder, to discharge his duty of care owed to others in his operation of the motor vehicle on October 27, 2012.”

146The plaintiffs submit that because the Son has a very limited recollection of the events of October 26 and 27, 2012, the court must consider and interpret the statements he made to others. The plaintiffs ask this court to consider that the Son lied to the Doctors and the Hospital staff on October 27, 2012, when he told them he was not suicidal. Therefore, the plaintiffs ask, how can the court determine if the Son’s statements made after the collision were truthful?

147The plaintiffs submit that the Son’s truthfulness is relevant to the explanation he gave, after the collision, for speeding down the street. On cross-examination, the Son stated that his intention was not to cause harm to others, but only to himself. The plaintiffs submit that the fact that the Son swerved, apparently to avoid hitting cars stopped at the intersection, demonstrated “an ability on his part to recognize that he owed a duty of care to others and he in fact attempted to discharge that duty.” [39]

148The plaintiffs argue that, because the Son admits that he was not truthful with Doctors at the time of his discharge from the Hospital, his statements to Drs. Kolawole and Pallandi after the accident may also be untrue. They submit, therefore, that the court ought not to rely on Dr. Kolawole’s opinion, which is largely based on the Son’s statements.

149Even if I were to accept the plaintiffs’ argument that, because the Son did not disclose his true suicidal feelings and thoughts to the Doctors on the day of the collision, the Son’s credibility concerning the relevant events is in issue, I would not find that to be a sufficient basis to reject the opinions of Drs. Kolawole and Pallandi or to give rise to a genuine issue requiring a trial.

150In preparing their expert reports, Drs. Kolawole and Pallandi had the Son’s medical records and were aware of what the Son told the Doctors on October 27, 2012. Despite that, both Drs. Kolawole and Pallandi were satisfied that they could provide an opinion about the Son’s psychiatric state at the time of the collision. The striking similarity in those opinions is significant: the opinions were reached independently, based on a significant evidentiary record, and following each doctor’s independent examination of the Son.

151In light of two virtually identical conclusions concerning the Son’s mental state and the absence of any evidence to challenge the factual basis upon which Drs. Kolawole and Pallandi form their opinions, I find there is no merit to the plaintiffs’ submissions that the potential that the Son’s statements to those physicians may not be credible, undermines those opinions and raises a genuine issue that requires a trial.

152I place a great reliance upon the uncontradicted evidence of Drs. Kolawole and Pallandi as to the Son’s state of mind and whether the Son recognized that he owed a duty of care to others and was able to discharge that duty.

153The plaintiffs separately challenge the opinion of Dr. Kolawole or the weight that may be given to his report on the basis that answers given by Dr. Kolawole on his cross-examination undermined his credibility. Specifically, Dr. Kolawole was asked on cross-examination whether he had any restrictions on his medical licence in the five years prior to October 27, 2012. Dr. Kolawole initially denied any restrictions. When confronted with information that a condition had been placed on his licence until 2009, Dr. Kolawole admitted that had been under supervision at that time because he had inappropriately prescribed medication to himself while he practised in the United Kingdom.

154While that evidence may not reflect well on Dr. Kolawole, it does not speak to his qualifications to offer the opinion upon which the Son asks this court to rely. The plaintiffs have put no evidence before the court that undermines Dr. Kolawole’s qualifications as an expert.

155Finally, the plaintiffs submit that the opinions of Drs. Kolawole and Pallandi should not be accepted at face value because they are in apparent conflict with the observations of Mr. Lemyre.

156Mr. Lemyre was an independent eyewitness to the collision. His evidence is that he saw the Son speed down Market Street and then swerve to avoid hitting cars that were stopped, waiting to make a left turn. The plaintiffs theorize that when he swerved, the Son was trying to avoid hitting the stopped cars and to avoid causing harm to the occupants.

157I accept Mr. Lemyre’s evidence about what he observed. However, his observations do not speak to the Son’s state of mind when he swerved. That evidence comes from the Son and through Drs. Kolawole and Pallandi. The uncontradicted evidence is that the Son was solely focused on driving his vehicle toward the cement barriers at Copps Coliseum with the intention of taking his life. Drs. Kolawole and Pallandi were aware of the evidence of Mr. Lemyre when they prepared their opinions.

158Weighing the opinions of Drs. Kolawole and Pallandi against the plaintiffs’ speculation about what may be inferred about the Son’s mental state when he swerved his vehicle, I prefer the evidence of the expert witnesses.

159The driver in Buckley also swerved prior to the collision, which led the trial judge to find that, in the moments immediately prior to the collision, the driver was not delusional. The appellate court disagreed. Relying on the evidence, including the psychiatric evidence, the appellate court held that to require the driver to prove that he was suffering from a delusion both before and after the collision but also in the few seconds immediately preceding the collision “would be to impose a burden of proof which would be most unreasonable.” [34] The same principles would apply to the facts in this case.

160As noted above, in submissions to respond to the evidence that the Son knew he did not have the Mother’s consent when she pounded on the window, etc., the plaintiffs assert that that Son could not have appreciated the implications of the Mother’s actions because the Son was then in a psychotic state. As clearly stated in Buckley, having shown that he was suffering from a delusion when he took possession of the Mother’s Vehicle to further require the Son require to prove that he was suffering from a delusion in the seconds before the collision, would impose an unreasonable burden of proof upon the Son. Therefore, I cannot conclude that a trial is required to test the plaintiffs’ theory about why the Son swerved; that is not a genuine issue requiring a trial.

Disposition of Issue (b): Has the Son met the Buckley Test?

161I am satisfied that the Son has met the Buckley test: he has established that, at the time of the collision, he neither understood nor appreciated the duty upon him to take care, nor was he able, as a result of a delusion, to discharge that duty. I reach that conclusion based on the medical and expert medical evidence, which is compelling, and on the Son’s own evidence that his single-minded goal was to end his life by driving into the cement barriers at Copps Coliseum. The Son’s evidence is also corroborated by Mr. Lemyre’s evidence that the Son drove at a high rate of speed, through a stop sign, towards Copps Coliseum. The plaintiffs also concede that the Son had a suicidal thought and intention at that time. [41]

Issue (c): If the ‘Buckley/Fiala’ Test Applies, has the Son Shown Sudden Onset of his Psychosis?

162The plaintiffs submit that although bound by Buckley, it is open to the court to temper the application of the Buckley test by considering the approach taken by the Alberta Court of Appeal in [Fiala v. Cechmanek, 2001 ABCA 169, 201 D.L.R. (4th) 680] (https://www.canlii.org/en/ab/abca/doc/2001/2001abca169/2001abca169.html) [42]. The plaintiffs submit that Fiala modifies the Buckley test by requiring that the defendant show that he/she was afflicted with a mental illness suddenly and without warning, in order to escape liability.

163The plaintiffs submit that the Son’s mental illness was not sudden, and that he cannot satisfy the Buckley test as modified by Fiala. In Fiala, the defendant was afflicted with mental illness suddenly and without prior warning. However, I do not read Fiala in the same way as the plaintiffs. The court states at para. 48:

The case law and academic literature reveals that there has been judicial recognition in Canada of the need to relieve the mentally ill of tort liability in certain circumstances. While the compensation of victims is still a worthy goal, that should not compromise the basic tenets of tort law. To find negligence, the act causing damage must have been voluntary and the defendant must have possessed the capacity to commit the tort. The burden of showing the absence of either falls on the defendant. If the defendant understood the duty of care he owed and was able to discharge that duty, his actions would be voluntary and the requisite capacity would exist.

164In 2007, the Son had experienced delusional thoughts and hallucinations as a consequence of diagnosed polysubstance abuse. The Son continued to abuse alcohol and cannabis. In the months prior to the collision, the Son became paranoid and was misinterpreting things. The plaintiffs argue that the Son failed to seek proper treatment for his substance abuse and should, therefore, bear some responsibility for the injuries and losses caused as a result of the substance-induced psychosis.

165I conclude that the plaintiffs’ arguments that the Son has failed to meet the Buckley test as modified by Fiala cannot succeed. First and most obvious - the Son sought medical treatment prior to the collision. Second, while the plaintiffs have identified the Son’s history of substance abuse, the evidence does not support a finding that the Son had notice or prior warning of the possibility of a psychotic episode. Based on the uncontradicted evidence, I have found as a fact that, before October 2012, the Son had never experienced a psychotic episode. There is no other evidence from which to conclude that the Son knew or ought to have known that his substance abuse would lead to the psychotic episode he experienced on October 27, 2012.

166While I am bound by Buckley, I take some guidance from Fiala. The latter case provides a helpful review of the jurisprudence and legal commentary on the potential tort liability of a person who is suffering from a mental illness. In Fiala, the court identifies the competing interests of relieving the mentally ill of liability and compensating an innocent victim. The excerpt below has particular application to the motions before me:

…negligence law is concerned with fault associated with falling below the requisite standard of care in the circumstances. If a person is suffering from a mental illness such that it is impossible to attribute fault to him, holding him liable for his actions would create a strict liability regime”, which does not exist in Canada (at para. 29).

167The court in Fiala also acknowledges that a court may need to rely on the opinions of psychiatric experts: the trial judge relied upon the opinions of three psychiatric experts. The appellate court upheld the trial judge, who concluded that the defendant was in the midst of a severe manic episode at the time of the events, had no control over his behaviour, and was incapable of appreciating the nature or quality of his actions. The appellate court noted that on the morning of the subject events, there were “signs of the emerging disorder” but “the symptoms were not so severe that an undiagnosed person would necessarily conclude that he or she was suffering from a serious medical condition” (at para. 9).

168The facts in Fiala are strikingly similar to the facts here.

Disposition of issue (c): Has the Son met the ‘Buckley/Fiala’ Test?

169I have found that the Buckley test applies. However, were I to have found otherwise, I conclude that the Son also met the so-called ‘Buckley/Fiala’ test.

Conclusion: Son’s Motion

170For the reasons set out above, I conclude that the Son has proven that he lacked the ability to understand and appreciate the duty upon him to take care in the circumstances of the case and that he was unable by reason of mental illness to discharge the duty. As set out in Buckley, the Son cannot be held civilly liable for his actions.

171Therefore, I grant the Son’s motion and dismiss the claims against him, including any crossclaims.

172The dismissal of the Son’s claims will have an impact on the Son’s third party claim against the Doctors and on the Doctors’ fourth party claim. If the parties are not able to agree on the other orders that may need to follow from the orders granted here, they may contact the trial coordinator’s office to arrange a hearing date before me. If an appointment to address those issues is not sought from the office of the trial coordinator within 21 days of the release of this decision, the parties will be deemed to have settled any such issues.

Costs and Other Orders

173As the successful parties on these motions, the Mother and the Son are presumptively entitled to their costs. If the parties cannot agree on costs, counsel may contact the trial coordinator’s office within 21 days of the release of this decision to arrange a hearing date before me. Costs outlines, time dockets, and copies of any relevant settlement offers shall be required for that hearing.

174If an appointment to argue the issue of costs is not sought from the office of the trial coordinator within 21 days of the release of this decision, the parties will be deemed to have settled the issue of costs.

Sheard J. Date: June 21, 2019

[1] Dr. Pallandi details his qualifications at page 5 of his report. He has a licence to practice medicine in Ontario, a specialization in psychiatry, with an emphasis on forensic psychiatry. He is a Fellow of the Royal College of Physicians and Surgeons (Canada) and a member of the Canadian Psychiatric Association, Ontario Medical Association, and Canadian Medical Protective Association. [2] As the report is dated January 30, 2019, I assume that the date is in error and that Ms. Cianciosi meant to say March 4, 2019. [3] R.R.O. 1990 Reg. 194. [4] 2016 ONCA 566, 402 D.L.R. (4th) 135. [5] 2017 ONSC 7340 [6] 2015 ONSC 2845. [7] R.S.O. 1990, c. E.23. [8] Doran v. Melhado, 2015 ONSC 2845, at para. 31. [9] With the exception of r. 53.03 (2.1) 7, acknowledgement of expert’s duty, signed by the expert. [10] The Son faced criminal charges arising from the accident. Culver J. found the Son not criminally responsible (“NCR”) by reason of his mental state. [11] The facts found at subparagraphs [41] (b),(e),(f),(g),(h),(i),(k),(m),(o), (q),(v),(w) and (z), above, are taken from the plaintiffs’ factum. [12] Mental Health Act, R.S.O. 1990, c.M.7. [13] Transcript of Mother’s cross-examination, at pp. 27, 32-34. [14] Statement of Claim. [15] 2014 SCC 7, [2014] 1 S.C.R. 87. [16] Ibid, at para. 49. [17] Ibid, at para. 50. [18] Transcript of Mother’s cross-examination, at pp. 32-33. [19] Sweda Farms v. Egg Farmers of Ontario, 2014 ONSC 1200, aff’d 2014 ONCA 878. [20] See Berube v. Vanest, [1991] O.J. No. 1633 (S.C.), aff’d [1995] O.J. No. 3217 (C.A.); Kalogeropoulos v. Ottawa (City), [1996] OJ No 3449, (Ont. Gen. Div.); and Grue v. McLellan, 2018 NSSC 69 [21] Transcript of Mother’s cross-examination, at pp. 32-33. [22] 2019 ONSC 2604. [23] 2006 ABQB 826, 405 A.R. 296. [24] 2015 ONCA 571, 127 O.R. (3d) 115. [25] Transcript of Mother’s cross-examination, at p. 27. (for consistency throughout) [26] See Morrison v. Hooper, 2010 ONSC 4394, 322 D.L.R. (4th) 757; Irvine v. Smith, [2008] O.J. 547 (S.C.); Smorag v. Nadeau Estate, 2008 ABQB 714, 98 Alta. L.R. (4th) 352; and Smith v. British Columbia, [1997] B.C.J. No. 1929 (S.C.). [27] Irvine v. Smith, [2008] O.J. 547 (S.C.). [28] Grue v. McLellan, [2018] N.S.J. No. 101 (N.S.S.C.). [29] Kalogeropoulos v. Ottawa (City), [1996] O.J. No. 3449 (Ont. Gen. Div.). [30] 2006 SCC 18, [2006] 1 S.C.R. 643. [31] 2010 ONSC 4394, 322 D.L.R. (4th) 757. [32], [1946] O.R. 798 (C.A.). [33] (1992), 9 O.R. (3d) 776 (Gen. Div.). [34] See Wenden v. Trikha (1991), 116 A.R. 81 (Q.B.), aff’d on other grounds (1993), 1993 ABCA 68 , 135 A.R. 382 (C.A.), leave to appeal refused [1993] 3 S.C.R. ix (S.C.C.). [35] Transcript, Criminal Trial, at pp. 19, 21-22. [36] Plaintiffs’ Factum, at para. 69. [37] Plaintiffs’ Responding Factum on Son’s Motion, at para. 69. [38] 2001 ABCA 169, 201 D.L.R. (4th) 680.