2019 ONSC 6895
COURT FILE NO.: DC-18-1133
DATE: 20191206
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Bonnie Davies
Plaintiff (Appellant)
– and –
The Corporation of the Municipality of Clarington, VIA Rail Canada Inc., Canadian National Railway Company, Timothy Garnham, The BLM Group Inc., Apache Specialized Equipment Inc., Apache Transportation Services Inc., Blue Circle Canada Inc., and Hydro One Networks Inc.
Defendants (Respondents)
Jeffrey Wm. Strype, for the Appellant Christopher Zuber
Stephen J. MacDonald, for the Respondent Hydro One Networks Inc.
Thomas J. Hanrahan, for the Respondent VIA Rail Canada, Canadian National Railway Company,
Alon Barda, for the BLM Group
A. Sciacca, for Timothy Garnham, Apache Specialized Equipment Inc. and Apache Transportation Services Inc.
HEARD: November 27, 2019
wOODLEY, j
OVERVIEW
[1] The Appellant, Christopher Zuber, brings this motion for an order setting aside the Registrar’s Order dated July 15, 2019, dismissing the appeal of the Judgment of Justice M.E. Edwards dated July 16, 2018, and for an order extending the time to perfect the appeal.
FACTS
The Derailment Accident and Class Action
[2] On November 23, 1999, a VIA passenger train heading eastbound from Toronto to Montreal was involved in a train derailment accident in Bowmanville, Ontario.
[3] In early 2000, a class action was commenced relating to the derailment accident which action was certified by Order of Justice MacKinnon on August 30, 2000.
[4] The Appellant, Christopher Zuber (“Zuber”), who is a Polish Australian national, was a passenger on the train and a member of the class action.
[5] On April 5, 2006, Justice J.E. Ferguson dismissed the action against the Defendant Blue Circle Canada Inc.
[6] The issue of liability relating to the derailment accident was resolved between all remaining Defendants
The Appellant’s Trial and Reasons for Decision
[7] The Appellant Zuber alleged that he sustained permanent and serious personal injuries as a result of the accident. Zuber elected to have his individual claim, limited to quantification of damages, proceed to trial.
[8] On November 17, 2014, Zuber’s trial commenced before Justice M.E. Edwards. The trial proceeded for 26 non-continuous weeks spanning from November 2014 to May 2017.
[9] On July 16, 2018, Justice Edwards released his Reasons for Decision which awarded Zuber general damages of $50,000 plus pre-judgment interest with no award for past or future income and no award for past or future care costs.
The Appeal
[10] On August 14, 2018, Zuber delivered a Notice of Appeal to the Ontario Court of Appeal.
[11] On August 16, 2018, Zuber delivered an amended Notice of Appeal to the Court of Appeal.
[12] On December 3, 2018, the appeal was transferred from the Court of Appeal to the Divisional Court, on consent, by Order of Justice Huscroft.
[13] On December 17, 2018, the parties appeared before Justice Edwards to argue the issue of the costs of the trial.
[14] On January 14, 2019, the parties, together with two non-parties (litigation loan participants), appeared before Justice Edwards to provide submissions as to the litigation loan parties’ involvement in the costs proceeding.
[15] On March 8, 2019, the parties (without the litigation loan participants) attended before Justice Edwards to make further submissions regarding costs.
[16] On April 15, 2019, Justice Edwards released his Costs Decision which awarded the Defendants costs of $2,562,000.00, payable before set-off. Justice Edwards reserved on the issue of “whether any or all of the loan providers has any responsibility for the costs