COURT OF APPEAL FOR ONTARIO

CITATION:
Bailey v. Barbour, 2012
    ONCA 325

DATE: 20120516

DOCKET: C55105

Juriansz, LaForme and Ducharme JJ.A.

BETWEEN

Angelina Bailey

Claimant (Appellant)

and

Gerald Harry Barbour

Objector (Respondent)

Robert J. Fenn, Richard Rohmer (O.C.) Q.C., Izaak De
    Rijcke and Patrick M. Floyd, for the appellant

Jeffrey Streisfield, for the respondent

Heard: April 18, 2012

On appeal from the judgment of Justice John R. McIsaac of
    the Superior Court of Justice dated June 24, 2011, with reasons reported at
    2011 ONSC 4019, 8 R.P.R. (5th) 76.

By the
    Court:

A.

OVERVIEW

[1]

The parties to this dispute have
    been battling for years over their respective rights to the waterfront
    properties they own on or near the shores of Georgian Bay in the township of Tiny
    in northern Simcoe County
.

[2]

The appeal to this court is from
    the decision and order of McIsaac J. released June 24, 2011. In that decision,
    the trial judge set aside the decision of Deputy Director of Titles Rosenstein,
    dated February 9, 2010, following an application by the appellant Mrs. Bailey
    pursuant to s. 46(2) of the
Land Titles Act
, R.S.O. 1990, c. L.5. In
    the proceeding under the
Land Titles Act
, the Deputy Director of
    Titles found that the objection filed by the respondent Mr. Barbour was not valid,
    and granted to Mrs. Bailey possessory title to a portion of the parcel claimed
    by Mr. Barbour, a narrow access route across the Barbour property to Mrs.
    Baileys property known as Tiny Island.

[3]

Mr. Barbours appeal from the
    decision of the Deputy Director of Titles proceeded as a trial
de novo
before McIsaac J. and consumed 19 days. However, at its very outset, the trial
    judge alerted counsel to a potential conflict of interest and asked them to
    consider whether it caused either side any difficulty. Two short recesses
    followed, after each of which counsel for Mrs. Bailey respectfully asked the
    trial judge to recuse himself. The trial judge declined the request.

[4]

On this appeal, the appellant
    raises eight issues, the first of which is whether it was appropriate and
    necessary in the interests of justice for the judge to recuse himself. We begin
    with that issue.

B.

FACTS RELEVANT TO THE ISSUE OF REASONABLE APPREHENSION OF BIAS

[5]

In raising the issue of possible
    conflict, the trial judge declared, among other things, that his wife is a real
    estate agent in Tiny Township where the properties of the parties are located,
    that she specializes in waterfront property, that she has a website titled
    Shores of Tiny, and that among the clients she has had are Heidi Lauridsen
    and Rebecca Kynoch-Rice. In the discussion with counsel that followed, the
    trial judge added that he and his wife also own waterfront property in Tiny
    Township, and have a cottage there.

[6]

Ms. Lauridsen and Ms.
    Kynoch-Rice are daughters of the late Nancy Ann K. Rice, and nieces of the late
    Rebecca Van Aller, Mrs. Rices sister. Mrs. Rice was a neighbour of the parties
    and well known to them. She too owned waterfront property, which adjoined the
    northerly border of Mr. Barbours. In 2002, she joined Mrs. Bailey as an
    objector to Mr. Barbours application under the
Boundaries Act,
R.S.O.
    1990, c. B.10, to confirm the true location of the northerly, westerly, and
    southerly boundaries of his property on the ground. Mrs. Bailey objected
    to the westerly border of Mr. Barbours property; Mrs. Rice objected to the
    northerly border.

[7]

Mrs. Rice and Mrs. Van Aller
    were the daughters of the late Dr. William G. Kynoch. In 1971, the property now
    owned by Mrs. Bailey, Tiny Island, was conveyed to Mrs. Van Aller by her mother
    in her capacity as the Executrix of Dr. Kynochs estate. In 1988, Mrs. Van
    Aller sold Tiny Island to Mr. and Mrs. Bailey.

[8]

Having disclosed his wifes
    connection to Ms. Lauridsen and Ms. Kynoch-Rice and their connection in turn to
    the property owned by the estate of Mrs. Rice, the trial judge asked counsel if
    they wanted a few minutes to discuss the matter. Only counsel for Mrs. Bailey
    expressed concern. He said that he wished to speak to his clients. With that,
    the trial judge offered the following: Okay. Well Ill just give you the names
    of [my wifes] two clients again for the record.

[9]

Even before consulting with his
    clients, however, counsel for Mrs. Bailey told the trial judge that he
    anticipated Ms. Lauridsen to be one of the witnesses in the trial. He added
    that he also anticipated statutory declarations of Mrs. Van Aller to be part of
    the record.

[10]

According to the record, both
    Mrs. Van Aller and her sister were elderly when they died.  At the time of the
Boundaries
    Act
hearing, Mrs. Van Aller was 81 years of age; her sister was 77. Mr.
    Barbour is himself today a man in his 90s. Through it all, what is clear is
    that one of the trial judges wifes clients, Ms. Lauridsen, was directly
    involved in the action as an expected witness; the other client, Ms.
    Kynoch-Rice, Ms. Lauridsens sister, also had far more than a passing interest
    in how the dispute between Mrs. Bailey and Mr. Barbour might be decided. Their
    mothers estate, after all, owns the neighbouring property and was and is
    apparently allied in interest with the appellant in this dispute.

[11]

Counsel for Mrs. Bailey pressed
    his concerns to the trial judge about the reasonable apprehension of bias,
    citing what he referred to as the multiplicity of involvements if not of the trial
    judge, then at least of the trial judges wife. He said: The apprehension on
    my clients part is that it would be virtually impossible, especially in light
    of what youve now indicated that you also own property in this locale  to not
    have information prior to today about the specific set of circumstances,
    because Tiny Island stands out.

[12]

Although the trial judge
    indicated that he had an understanding with his wife not to discuss their business
    matters at home, he acknowledged that when he was assigned as the trial judge to
    this matter he brought up the Tiny Island situation with his wife, and asked
    her if there was anything that, you know, I should know that you may be
    connected to this property. Through that discussion, presumably, he learned of
    and disclosed to counsel his wifes connection to Ms. Lauridsen and Ms.
    Kynoch-Rice.

[13]

In the end, the trial judge
    decided, over the spirited objections of Mrs. Baileys counsel, that his
    wifes involvement was merely an attenuated connection falling well short of
    the threshold justifying the request sought by Mrs. Bailey.

C.

the trial judges ruling on the recusal request

[14]

The trial judges ruling in its
    entirety was as follows:

Id like to begin this ruling with
    reference to some general principles.  A judges impartiality is presumed and a
    party seeking disqualification must establish that the circumstances justify a
    finding that the judge must be disqualified. The criterion of disqualification
    is the reasonable apprehension of bias.

The question is what would an
    informed, reasonable and right-minded person viewing the matter realistically
    and practically, and having thought the matter through, conclude. Would he or
    she think it is more likely than not that the judge, whether consciously or
    unconsciously, would not decide fairly? The standard refers to an apprehension
    based on serious grounds.  These principles come from the judgment of the
    Supreme Court of Canada in
Wewaykum Indian Band v. Canada
, [2003] 2
    S.C.R. 259.

At its highest, the applicants claim
    for disqualification is based on a general sense of unease because of the
    factors I announced earlier today in open court.  In my view, this basis falls
    well short of the threshold that justifies the order sought.  Accordingly, the
    application is dismissed.  I reserve the right to expand upon these reasons.

[15]

The trial judge did not expand
    upon his ruling, and made no further reference to it in his reasons for judgment.

D.

the applicable law

[16]

The inquiry into whether a
    conflict exists sufficient to prompt a decision-maker to recuse him or herself
    must be fact-specific. As his short oral ruling demonstrates, the trial judge
    correctly identified the test to be applied for determining whether there
    exists a reasonable apprehension of bias: What would an informed, reasonable
    and right-minded person, viewing the matter realistically and practically, and
    having thought the matter through, conclude? Would he or she think it is more
    likely than not that the judge, whether consciously or unconsciously, would not
    decide fairly?

[17]

This test was first articulated
    by Grandpré J. in his dissenting reasons in
Committee for Justice and
    Liberty v. National Energy Board
, [1978] 1 S.C.R. 369, at p. 394. Ever
    since, the Supreme Court of Canada has consistently endorsed the standard,
    including in the case referred to by the trial judge,
Wewaykum Indian Band
,
    although the court has also sought from time to time to clarify and develop it.

[18]

Thus, for example, in his
    reasons in
R. v. S. (R. D.)
, [1997] 3 S.C.R. 484, Cory J. explained,
    at para. 111, that the test set down by Grandpré J. contains a two-fold
    objective element: not only must the person considering the alleged bias be
    reasonable, but the apprehension of bias itself must also be reasonable in the
    circumstances of the case. Cory J. added, at para. 113, that:

[T]he threshold for a finding of real or perceived bias is
    high. It is a finding that must be carefully considered since it calls into
    question an element of judicial integrity. Indeed an allegation of reasonable
    apprehension of bias calls into question not simply the personal integrity of
    the judge, but the integrity of the entire administration of justice.

[19]

In addition to this high
    threshold set out by Cory J., the Supreme Court has made clear that, in those
    cases where a party seeks the recusal or disqualification of a judge,
    allegations of judicial bias will have to overcome the strong presumption of
    judicial impartiality. Moreover, in any case where the impartiality of the
    judge is in question, the appearance of the matter is just as important as the
    reality:
R. v. Bow Street Metropolitan Stipendiary Magistrate and others,
    ex parte Pinochet Ugarte (No. 2)
, [1999] 1 All E.R. 577 (H.L.), at
    p. 592.

[20]

In
Metropolitan Properties
    Co. (F.G.C.) Ltd. v. Lannon
, [1968] 3 All E.R. 304 (C.A.), at p. 310, Lord
    Denning M. R. stressed the importance of
the appearance
of judicial
    impartiality. He put the matter this way:

[I]n considering whether there was a real likelihood of bias,
    the court does not look at the mind of the justice himself.... It does not look
    to see if there was a real likelihood that he would, or did, in fact favour one
    side at the expense of the other. The court looks at the impression which would
    be given to other people. Even if he was as impartial as could be,
    nevertheless, if right-minded persons would think that, in the circumstances,
    there was a real likelihood of bias on his part, then he should not sit. And if
    he does sit, his decision cannot stand.

[21]

This passage from Lord Denning
    M. R. in
Metropolitan Properties Co
.
was cited with approval by
    Major J. in his dissenting reasons in
S. (R. D.)
, at para. 11, and by
    this court in
Benedict v. Ontario
(2000), 51 O.R. (3d) 147 (C.A.). In
Benedict,
the court also noted, at para. 20, that while Lord Denning M. R. used the
    phrase real likelihood,  variations in the expression such as reasonable
    apprehension, reasonable likelihood, and reasonable suspicion should not
    be regarded as involving any substantive difference in the approach to be
    taken, and indeed amount to the same standard.

E.

ANALYSIS

[22]

In this case, no one has
    suggested any actual bias on the part of the trial judge. However, as the
    Supreme Court pointed out in
Weywakum Indian Band
, at para. 66, where
    disqualification is argued, the relevant inquiry is not whether there was
in
    fact

either conscious or unconscious bias on the part of the judge,
    but whether a reasonable person properly informed would apprehend that there
    was (emphasis in original).

[23]

Would a reasonable person
    properly informed apprehend that there was an appearance of bias overhanging
    this trial? In our view, the question cannot be answered without taking account
    of all relevant factors, including, notably, the trial judges wifes
    connections to the people and to the properties at the heart of the dispute.
    Among these connections were the following:

(a)
    one of the trial judges wifes clients, Ms. Lauridsen, was expected to be a
    witness in the trial;

(b)
    another of the wifes clients, Ms. Kynoch-Rice, is Ms. Lauridsens sister;

(c)
    the sisters are the daughters of the late Mrs. Rice, whose estate owns the
    property abutting the northerly border of the respondents property;

(d)
    Mrs. Rice joined the appellant as an objector to the respondents
Boundaries
    Act
application in 2002, and testified on the appellants behalf;

(e)
    in the proceeding under the
Land Titles Act
, relevant evidence admitted by
Deputy Director of Titles
    Rosenstein included statutory declarations of Mrs. Rice and Mrs. Van Aller, by
    then both deceased, and a sworn affidavit of Ms. Lauridsen.

[24]

Given these facts and
    circumstances, there can be no doubt that the trial judges wifes clients have
    a great deal of knowledge about the parties to the dispute, and an obvious
    ongoing interest in the litigation and its result. In this context, it bears
    emphasis too that the trial judge spoke to his wife about, as he put it, the
    Tiny Island situation, and asked her if there was anything he should know
    about her connection to the property. Whatever her answer might have been, a
    reasonable person properly informed would only conclude that her connection to
    the property is deep and current and multi-layered.

[25]

Whenever a party takes the
    position that a reasonable apprehension of bias exists, the judge must weigh
    the submission carefully and contextually, taking account of all relevant
    circumstances. The trial judge did not follow that course in this case. Had he
    done so, he would have given greater consideration to his wifes involvement in
    the narrative, and he would not have concluded that the appellants claim for
    disqualification was based only on a general sense of unease falling well
    short of the threshold that justifies the order sought.

[26]

In our view, the appellant has
    met the high threshold necessary to establish a reasonable apprehension of
    bias. The circumstances created a reasonable apprehension of bias,
    necessitating a new trial before a different judge of the court.

F.

DISPOSITION

[27]

For the foregoing reasons, the
    appeal is allowed. In the light of this determination, it would be
    inappropriate to comment on the other issues raised in the appeal.

[28]

The order of the trial judge is
    set aside and a new trial ordered. The costs of the trial in the court below
    are in the cause. The costs of this appeal are to the appellant in the
    all-inclusive sum of $25,000.

Released: May 16, 2012 RGJ

R.G.
    Juriansz J.A.

H.S. LaForme J.A.

Ducharme J.A.


COURT OF APPEAL FOR ONTARIO

CITATION:

Casasola v. Brainch, 2012
    ONCA 318

DATE: 20120514

DOCKET: C54045

Cronk, Juriansz and Epstein JJ.A.

BETWEEN

Andrea Casasola

Plaintiff/Appellant

and

Jasdip Brainch and Iqbal Singh

Defendants/Respondents

Jordan Palmer and Nathan Tischler, for the appellant

Stuart Ghan, David Visschedyk and Michael Hochberg, for
    the respondents, Jasdip Brainch and Iqbal Singh

Heard and released orally: May 7, 2012

On appeal from the order of Justice Jane A. Milanetti of
    the Superior Court of Justice, dated February 9, 2010.

ENDORSEMENT

[1]

The appellant appeals from the order of J. Milanetti J. of the Superior
    Court of Justice dated February 9, 2010 dismissing his claim on motion by the
    respondents under Rule 20, the summary judgment rule, and, in the alternative,
    Rule 21, which permits the striking of a pleading on the ground that it
    discloses no reasonable cause of action.  Notwithstanding the able argument of
    the appellants counsel, we conclude that the appeal must be dismissed for the
    following reasons.

[2]

In our view, properly read, the motion judges reasons reveal that she
    dismissed the appellants action under both Rules 21 and 20 and not simply on
    the basis of the latter rule.  Apart from the reasons themselves, this
    conclusion is supported by the record, which confirms that the respondents specifically
    asked that the dismissal motion proceed solely as a Rule 21 motion.  Argument
    of the motion, by all parties, in fact proceeded on this basis.

[3]

In the circumstances presented to her, the motion judge essentially
    concluded, in part, that the appellants amended pleading failed to disclose a
    reasonable cause of action.  We agree.

[4]

At the outset of trial, the appellant amended his pleading to abandon
    all claims for relief, save for those related to the pecuniary value of the
    alleged loss of an interdependent relationship  his marriage.  However, as
    amended, the appellants pleading failed to allege facts regarding: (1) the
    nature of his alleged injuries in the accident; (2) how those injuries allegedly
    precipitated the breakdown of his marriage; and (3) the economic loss said to
    be associated with the lost marital relationship.

[5]

In sum, although the appellants amended pleading invoked a claim for
    damages for the alleged loss of the value of an interdependent relationship, it
    contained virtually no material facts of any kind in support of this claim and
    was confined to bald or conclusory assertions only.  In these circumstances,
    the pleading was clearly deficient and the motion judge was fully justified in
    striking it under Rule 21.  Once the pleading was struck, there was no case to
    go to the jury.

[6]

Given this conclusion, as the appellants counsel responsibly
    acknowledges, there is no need to address the other grounds of appeal raised by
    the appellant, which relate to Rule 20-associated issues.

[7]

The appeal is therefore dismissed.  The respondents are entitled to
    their costs of the appeal, fixed in the amount of $8,000, inclusive of
    disbursements and all applicable taxes.

E.A. Cronk J.A.

R.G. Juriansz J.A.

G.J. Epstein J.A.


COURT OF APPEAL FOR ONTARIO

CITATION:
Charlton v. Ontario (Family
    Responsibility Office), 2012 ONCA 316

DATE: 20120511

DOCKET: C54967

Goudge, MacPherson and Gillese JJ.A.

BETWEEN

Bradley James Charlton

Applicant (Appellant)

and

The Director, Family Responsibility Office for
    the benefit of Joanne Charlton

Respondent

Bradley Charlton, appearing in person

Heather Puchala, for the respondent

Heard: May 7, 2012

On appeal from the judgment of Justice Johanne N.
    Morissette of the Superior Court of Justice, dated March 14, 2011.

APPEAL BOOK ENDORSEMENT

[1]

The appellant appeals the judgment of Morissette J. of the Superior
    Court of Justice dismissing his motion for an order requiring the Family
    Responsibility Office (FRO) to refrain from directing the Ministry of
    Transportation of Ontario to suspend his drivers licence.

[2]

The respondent contends that the appeal should be dismissed as moot.  On
    November 29, 2011, Hackland J. made an order reinstating the appellants
    drivers licence.  If the FRO seeks a suspension in the future, it will have to
    serve a new notice.

[3]

Accordingly, the appeal is dismissed. No costs to either party here or
    in the courts below.


COURT OF APPEAL FOR ONTARIO

CITATION:
Chaudhry v. A&B Auto
    Leasing & Car Rental Inc., 2012 ONCA 336

DATE: 20120518

DOCKET: C54766

MacPherson, Gillese and MacFarland JJ.A.

BETWEEN

Muhammad Naeem Chaudhry

Plaintiff (Appellant)

and

A&B Auto Leasing & Car Rental Inc. and
    Mohammad Rafiq and
Shahzad Rafiq
and
Ayesa Rafiq
and
Haider Humza Inc.

Defendants (
Respondents
)

M. Doli and C. Nwobele, for the appellant

M. Teitel, for the respondents Shahzad Rafiq, Ayesa
    Rafiq and Haider Humza Inc.

Heard: May 10, 2012

On appeal from the judgment of Justice Michael Dambrot of
    the Superior Court of Justice, dated December 8, 2011.

APPEAL BOOK ENDORSEMENT

[1]

Three of the defendants in this action, Shahzad Rafiq, Ayesa Rafiq and
    Haider Humza Inc., brought a motion to, among other things, strike out those
    portions of the amended Statement of Claim and Defence to Counterclaim that
    bring into issue the validity of a $275,000 judgment of Coo J. dated November
    14, 2005.  The motion was successful.  The plaintiff appeals.

[2]

The motion judge fully canvassed the facts, articulated the relevant
    legal principles and concluded that the circumstances cried out for the
    application of the doctrine of abuse of process.  At para. 20 of his reasons
    for decision, the motion judge identified the following circumstance which, in his
    view, cried out for the application of the doctrine of abuse of process:

1.

The issue had
    already been litigated twice.

2.

The issue had
    already been raised in the plaintiffs pleadings in this case when the motion
    before Penny J. was heard.

3.

The plaintiff
    was on notice that the issue was being litigated before Penny J., and he was
    invited to take steps to participate.

4.

In [the motion
    judges] view, it was highly likely that the plaintiff would have been granted
    standing as a person who would be affected by the order sought.

5.

Despite being
    put on notice, the plaintiff declined to participate.

6.

When the
    plaintiff declined to participate in the motion before Penny J., he had a clear
    intention of instead litigating the same issue again in this action.

[3]

We agree.  While it may be that the motion could also have been decided
    on the basis of estoppel, the motion judge made no error in deciding the motion
    on the doctrine of abuse of process.

[4]

Accordingly, the appeal is dismissed with costs to the respondents
    Shahzad Rafiq, Ayesa Rafiq and Haider Humza Inc., fixed at $9,000, all
    inclusive.


COURT OF APPEAL FOR ONTARIO

CITATION:

Chaudhary v. Canada
    (Correctional Services of Canada),
2012 ONCA 313

DATE: 20120511

DOCKET: C54342

Cronk, Juriansz and Epstein JJ.A.

BETWEEN

Anees Chaudhary

Applicant (Appellant)

and

Warden of Frontenac Institution

Respondent (Respondent)

Allan Manson, for the appellant

Brian Harvey and Abigail Martinez, for the respondent

Heard and released orally: May 8, 2012

On appeal from the order of Justice John McMunagle of the
    Superior Court of Justice dated August 5, 2011, with reasons reported at 2011
    ONSC 4627.

ENDORSEMENT

[1]

The appellant appeals the application judges dismissal of his
habeas
    corpus
application. The application judge declined to exercise jurisdiction
    in favour of a judicial review application before the Federal Court.

[2]

The appellant was convicted of murder in 1988 and sentenced to
    life imprisonment with no parole for 14 years. He was granted full parole in
    1998, subject to certain conditions.  His parole was suspended on November 17,
    2009 by a parole supervisor with the Correctional Service of Canada.  On
    February 9, 2010, the National Parole Board (NPB) conducted a review of the
    suspension, holding in part that the appellant had failed to provide full
    financial disclosure to his parole officer and was unwilling to follow the
    conditions of his release.  The NPB revoked his parole. This decision was
    subsequently upheld by the Appeal Division of the NPB.

[3]

We have been advised that since June 2, 2011, the appellant has
    been on day parole.

[4]

The appellant brought a
habeas corpus
application in
    Superior Court.  This application was dismissed by McMunagle J. on August 5,
    2011, on jurisdictional grounds.

[5]

As the application judge observed, both parties agreed that the
    controlling authority in this matter is
May v. Ferndale
, 2005 SCC 82,
    [2005] 3 S.C.R. 809.  There, the court held that the Superior Court should
    exercise its
habeas corpus
jurisdiction except in limited
    circumstances. These circumstances include where there is in place a complete,
    comprehensive and expert procedure for review of an administrative decision
    (at para. 44).  If such circumstances are found to exist, the prescribed route to
    challenge a parole decision is by way of a judicial review application brought
    before the Federal Court.

[6]

The application of
May
in the context of the parole
    review process under the
Corrections and Conditional Release Act
, S.C.
    1992, c. 20, was considered by this court in
R. v. Graham
, 2011 ONCA
    138, 275 O.A.C. 200.  In that case, Blair J.A. indicated that the parole review
    process was the very type of statutory regime envisioned in the
habeas
    corpus
exceptions articulated in
May
. Accordingly, the appeal of
    the decision of the Superior Court to decline to exercise jurisdiction, was
    dismissed.

[7]

The appellants argument is that
Graham
, in addition to
    a number of appellate decisions from other provinces that have reached the same
    conclusion, has incorrectly interpreted and applied
May
.  In effect, the
    appellant invites this panel to rule that
Graham

was wrongly
    decided.

[8]

We decline to do so.
Graham
was recently decided and is
    consistent with contemporary decisions of several other appellate courts in
    Canada.  In our view,
Graham
is dispositive of this appeal. The
    appellant has not persuaded us that the decision in
Graham
is
per
    incuriam
. We note that the appellants application for a five-judge panel
    to hear this matter was refused.

[9]

This appeal is therefore dismissed.

E.A. Cronk
    J.A.

R.G.
    Juriansz J.A.

G.J.
    Epstein J.A.


COURT OF APPEAL FOR ONTARIO

CITATION:
Cook v. Cook, 2012
    ONCA 333

DATE:  20120518

DOCKET: C54545

OConnor A.C.J.O., Feldman and Ducharme JJ.A.

BETWEEN

Lesley-Jean Cook

Plaintiff (Respondent)

and

John David Cook

Defendant (Appellant)

Joseph H. Kary, for the defendant (appellant)

Elizabeth Mourao, for the plaintiff (respondent)

Heard and released orally:  May 16, 2012

On appeal from the order of Justice Klowak of the Superior
    Court of Justice, dated September 27, 2011.

ENDORSEMENT

[1]

Given the history of the proceedings, the motion judge was entitled to
    exercise her discretion and refuse the appellants request for an adjournment.

[2]

We are of the view that it was within the motion judges discretion to
    strike the pleadings.  We note that in her reasons, the motion judge found:

... no efforts have been made by counsel for the respondent to
    address the matters in my order of that date [August 16, 2011], specifically,
    the cost order of $3,500 which were to be paid forthwith.  In addition to that,
    there has been a lack of attention or diligence paid to disclosure by the
    respondent.  Tax returns and Notices of Assessment have not been provided, only
    a one-page summary for 07, 08 and 09.  There is no documentation to support
    of the respondents financial statement and he has not provided an appraisal of
    his cottage property in Minden.

[3]

Moreover, we note that respondents counsel sent at least seven letters
    to appellants counsel before the hearing of the motion in an effort to avoid
    having to proceed with the motion.  These efforts were to no avail.  Further,
    the appellant did not agree that the costs award of August 16 could be paid
    from monies being held in trust by the real estate lawyer.

[4]

In the result, the appeal is dismissed.

[5]

The appellant shall pay the respondents costs fixed in the amount of
    $8,500, inclusive of disbursements and applicable taxes.

D. OConnor A.C.J.O.

K. Feldman J.A.

E. Ducharme J.A.


COURT OF APPEAL FOR ONTARIO

CITATION:
Cosford v. Player, 2012
    ONCA 276

DATE: 20120501

DOCKET: C54077

Juriansz, LaForme and Ducharme JJ.A.

BETWEEN

Brian Cosford

Appellant

and

William Player, David Allport, Thomas Ambeau,
    John Wright, 24 North Street Inc., Jean Carberry, 1207228 Ontario Inc., &
1442968
    Ontario Limited

Respondent

John D. Bonn, for the appellant

Jeffrey W. Kramer and Saroja Kuruganty, for the
    respondent

Heard:  April 19, 2012

On appeal from the judgment of Justice Gary W. Tranmer of
    the Superior Court of Justice, dated June 24, 2011.

BY THE
    COURT:

A.

OVERVIEW

[1]      This is an appeal from the decision of Tranmer
    J. granting the motion by the respondent 1442968 Ontario Limited for summary
    judgment. At the end of oral argument, we advised counsel that the appeal would
    be dismissed with brief reasons to follow. Here now are those reasons.

[2]      In
Combined Air Mechanical Services Inc.
    v. Flesch
, 2011 ONCA 764, this court has recently undertaken a
    comprehensive review of Rule 20 and of the new test to be applied by the motion
    judge in deciding when to exercise the new powers under Rule 20. Still, the
    standard of review remains the same: the determination of whether there is a
    genuine issue requiring trial is a legal question, and will be reviewed on a
    standard of correctness.

[3]     Further, any factual determinations by the
    motion judge in deciding the motion are reviewed on the deferential standard of
    palpable and overriding error. There are no categories of claims that should
    not be decided in a motion for summary judgment.

B.      THE FACTUAL CONTEXT

[4]      In this case, the appellants claim against
    the respondent is founded in tort. Although seven other defendants are named in
    the action, against whom a number of allegations are made, including fraud, the
    respondent is alleged to have made a negligent representation in a deed
    registered on title in connection with a property municipally known as 24 North Street, in Barrie, Ontario.

[5]      In that transaction, which occurred on August
    20, 2002, the respondent transferred the property at 24 North Street to another
    corporation, 24 North Street Inc.. This latter Corporation, and the person who
    apparently controlled it, William Player, are among the other defendants in the
    action. The impugned deed discloses that the consideration for the sale of 24 North Street was $1,400,000.

[6]      The appellant was not involved in the
    respondent's sale of the property to 24 North Street Inc. There were no
    business dealings of any kind between the appellant and the respondent.

[7]      In January 2003, approximately 6 months after
    the sale of the property by the respondent to 24 North Street Inc., the appellant
    loaned $335,000 to 24 North Street Inc., to be secured by a second mortgage on
    the property. In advancing the funds, the appellant understood that his
    mortgage was second in priority to the mortgage held by Laurentian Bank of Canada. On May 2, 2003, the Laurentian Bank mortgage was in default, and the bank issued
    Notice of Sale.

[8]      Eventually, on December 21, 2004, by Court
    Order, the property sold for $805,000. After the costs associated with the
    sale, the payout of the first mortgage, and his solicitor's fees, the appellant
    received $7663.78 from his initial advance of $335,000.

C
.
THE MOTION JUDGES ANALYSIS OF THE
    RELEVANT FACTS

[9]      The motion judge fully appreciated the five
    requirements of proof required to establish the tort of negligent
    representation as set out in the case of the
Queen v. Cognos Inc
.
,
    [1993] 1 S.C.R. 87, at para. 34.

[10]    Applying that test on the Rule 20 motion for
    summary judgment, the motion judge noted correctly the special relevance of the
    fourth criterion: the representee must have relied, in a reasonable manner, on
    said negligent misrepresentation.

[11]    On this question of reliance, reasonable
    reliance, the motion judge carefully reviewed the appellants evidence given on
    his examination for discovery, as well as the evidence of the appellants then
    lawyer, Jean Carberry, now also a defendant in the action. The motion judge was
    also alive to and fully appreciated the nature of the tortious conduct alleged
    against this respondent, as distinct from the other and more wide-ranging
    allegations against the other defendants.

[12]    The motion judge then made clear findings of
    fact as between these two parties, including the following:

(1) the appellant did not look
    at the deed containing the alleged negligent misrepresentation, though his
    lawyer did;

(2) the appellant did not rely
    upon the respondents representation when he decided to advance monies on the
    property;

(3) the representation made
    by the respondent on the deed was that the consideration for the sale of the
    property was $1.4 million;

(4) the lawyer representing
    the appellant in the transaction took from the deed that the value of the
    property was $1.4 million;

(5) the lawyer representing
    the appellant in the transaction prepared a document titled Investment
    Authority signed by the appellant which read, in part, that the approximate
    value of the property was $1.4 million;

(6) in the Investment
    Authority, the appellant instructed the lawyer not to obtain a current and
    independent appraisal of the property, and agreed that, in any event, the
    responsibility for assessing the financial merits of the mortgage investment
    rested with him.

D.      SUMMARY AND CONCLUSION

[13]    On this record, we are satisfied that the
    motion judge exercised correctly the powers in Rule 20.04 (2.1). At least
    implicitly, he asked and answered affirmatively the essential question: Can
    the full appreciation of the evidence and issues that is required to make
    dispositive findings be achieved by way of summary judgment?

[14]    The instant case is not one such as the
Mauldin

group action and the
Bruno
action analyzed at length within
Combined
    Air Mechanical Services Inc
. Unlike in those cases, the record here was
    not voluminous; the motion raised only two narrow issues; and only a discrete
    number of findings of fact were required to decide the motion.

[15]    On the record before him, the motion judge had
    ample evidence to conclude that there was no genuine issue requiring the trial
    in regard to the appellants claim against the respondent based upon negligent
    representation. In light of that conclusion, the motion judge also correctly found
    that he did not have to decide the issue raised by the respondent in the Rule
    21 motion.

[16]    Accordingly, the appeal is dismissed with
    costs. By agreement of counsel, the respondents costs are fixed in the sum of
    $10,000, inclusive of disbursements and applicable taxes.

Released:  May 1, 2012  RGJ

R.G.
    Juriansz J.A.

H.S. LaForme J.A.

E.W.
    Ducharme J.A.


COURT OF APPEAL FOR ONTARIO

CITATION:
Davis v. Guelph
    (City), 2012 ONCA 357

DATE:  20120529

DOCKET: C54748

OConnor A.C.J.O., Feldman and Ducharme JJ.A.

BETWEEN

Erica Davis

Appellant

and

The Corporation of the City of Guelph

Respondent

Erica Davis, appearing in person

Scott Worsfold and Phil Langlotz, appearing for the
    respondent

Heard and released orally:  May 18, 2012

On appeal from the order of Justice Rogerson of the Ontario
    Court of Justice, dated November 17, 2011.

ENDORSEMENT

[1]

This is an application for leave to appeal a number of convictions under
    a city by-law.  The convictions underlying the proposed appeal were entered on
    November 14, 2007, November 23, 2009 and November 15, 2010.  Motions to extend
    the time to appeal two sets of these convictions were previously dismissed.  An
    appeal against the third set of convictions was not pursued.

[2]

On September 12, 2011, the applicant brought another motion to set aside
    the convictions.  The motion was returnable at 2:00 p.m. on November 17, 2011.
    The applicant did not appear on time and the motions were dismissed.

[3]

The applicant explains that she failed to appear as a result of traffic
    delay.  Accepting that explanation, we see no basis to grant leave to appeal.
    The applicants motion was well beyond the time for appealing the convictions.
    Her earlier attempts to appeal had been unsuccessful.  There is no fresh
    evidence before this court that warrants interference on this application for
    leave.

[4]

The application for leave to appeal is dismissed.

[5]

Nothing in these reasons should be taken as commenting upon the merits
    of any defence the applicant may have to the charges now pending that are to be
    tried in July of this year.

D. OConnor A.C.J.O.

K. Feldman J.A.

E. Ducharme J.A.


COURT OF APPEAL FOR ONTARIO

CITATION:
Deck International
    Inc. v. The Manufacturers Life Insurance Company, 2012 ONCA 309

DATE: 20120511

DOCKET: C53138

MacPherson, Gillese and Blair JJ.A.

BETWEEN

Deck International Inc. and Richard Laurie
    Donaldson

Plaintiffs (Appellants)

and

The Manufacturers Life Insurance Company

Defendant (Respondent)

George Windsor, for the appellants

Gordon Jermane and Ted Shieck, for the respondents

Heard and released orally: May 9, 2012

On appeal from the judgment of Justice Hugh R. McLean of
    the Superior Court of Justice, dated December 2, 2010.

ENDORSEMENT

[1]

The appellants commenced an action on February 1, 2005, in which they
    sought long term disability (LTD) benefits from the respondent, The
    Manufacturers Life Insurance Company, for a disability said to have arisen in
    1990.

[2]

In 1998 the appellants sought LTD benefits from the respondent for the
    same disability.  The respondent refused to make the payments because the
    appellants had paid no premiums on the disability insurance policy since
    October 1, 1990.  It is worthy of note that on December 11, 1990, the respondent
    had advised the appellants in writing that the policy had been cancelled
    effective October 1, 1990, and that any claims incurred prior to the date of
    cancellation had to be submitted no later than 90 days after October 1, 1990.
    Dental and healthcare claims were submitted but no claim for LTD benefits was
    made until 1998.

[3]

The respondent brought a summary judgment motion and the appellants
    brought their own summary judgment cross-motion.

[4]

The motion judge found that the limitation periods had long run in the
    action.  He further determined that Mr. Donaldson, the individual
    plaintiff/appellant, was not saved by s. 7 of the
Limitations Act, 2002
,
    S.O. 2002, c. 24, Sch. B.  Section 7 prevents the limitation period from
    running during any time in which the person with the claim is incapable of
    commencing or proceeding in respect of the claim because of his or her
    physical, mental or psychological condition.  The motion judge found that there
    was insufficient evidence to support a finding of incapacity such that s. 7
    would apply.  Accordingly, the motion judge granted the respondents motion and
    dismissed the appellants cross-motion.

[5]

The appellants appeal.  They submit that the motion judge failed to
    consider all of the evidence that was before the court.

[6]

We do not accept this submission.  There was no medical evidence to the
    effect that Mr. Donaldson lacked the capacity to commence the action within the
    meaning of s. 7.  There was evidence from family members as to his disability,
    but that is not the same thing as medical evidence going to the issue of
    capacity to commence an action.

[7]

Accordingly, we see no basis on which to disturb the judgment below.
    The appellants let the disability insurance policy lapse in 1990, leaving
    themselves with no insurance when they sought LTD benefits in 1998.  For the
    reasons given by the motion judge, by the time the appellants commenced their
    action, the limitation periods had long expired.  As a result, there was no
    genuine issue requiring a trial.

[8]

Accordingly, the appeal is dismissed with costs to the respondent fixed
    at $7,000, inclusive of disbursements and applicable taxes.

J.C.
    MacPherson J.A.

E.E.
    Gillese J.A.

R.A.
    Blair J.A.


COURT OF APPEAL FOR ONTARIO

CITATION:
Dennis v. Ontario Lottery
    and Gaming Commission, 2012 ONCA 368

DATE: 20120531

DOCKET: M41367 (M40972)

Gillese J.A. (In Chambers)

BETWEEN

Peter Aubrey Dennis and Zubin Phiroze Noble

Responding Parties/Plaintiffs (Appellants)

and

Ontario Lottery and Gaming Corporation

Moving Party/Defendant (Respondent on Appeal)

Proceeding under the
Class
    Proceedings Act
,
1992
, S.O. 1992, c. 6

James Doris and Matthew Milne-Smith, for the moving
    party

Jerome R. Morse and Lori Stoltz, for the responding
    parties

Heard in writing

On a motion to strike the appellants Reply Factum on the
    motion for leave to appeal from the judgment of the Divisional Court (Swinton
    and Low JJ., Wilson J. dissenting) dated December 2, 2011, with majority
    reasons by Low J. reported at 2011 ONSC 7024, 286 O.A.C. 329.

[1]

The plaintiffs/appellants (the appellants) have brought a motion for
    leave to appeal the decision of the Divisional Court, in which it upheld
    Cullity J.s denial of certification in this proposed class proceeding.  In
    support of their motion, the appellants filed a 30-page factum.  In their
    factum, the appellants allege three errors on the part of the majority decision
    of the Divisional Court.

[2]

The Ontario Lottery and Gaming Commission (the respondent) filed a
    responding factum which focussed largely on whether leave to appeal was
    appropriate, rather than the merits of the proposed appeal itself.

[3]

The appellants purport to file a reply factum.

[4]

The respondent moves to strike the reply factum on the basis that its
    factum raised no issue on which the appellants had not already taken a position
    in their moving factum.

Analysis

[5]

Rule 61.03.1(11) of the
Rules of Civil Procedure,
R.R.O. 1990,
    Reg. 194, provides:

(11)  If
    the responding partys factum raises an issue on which the moving party has not
    taken a position in the moving partys factum, that party may serve a reply
    factum.

[6]

I have carefully reviewed both parties factums.  Having done so, I
    accept the respondents submission on this matter.  While its responding factum
    does cite facts and cases not mentioned by the appellants in their factum, it does
    not raise any new issues.  Put another way, the respondents factum is entirely
    responsive to the issues raised by the appellants.

[7]

As rule 61.03.1(11) makes clear, reply is not a matter of right.  It is
    confined to responding to an
issue
raised by the responding party on
    which the moving party has not taken a position.  In responding to the issues
    raised by the appellants, the respondent refers to facts and cases to which the
    appellants made no reference.  However, this does not amount to raising an
    issue on which the appellants have not taken a position.  It amounts to arguing
    the issues as raised by the appellants, with a focus on different facts and
    points of law.

[8]

There is value in giving rule 61.03.1(11) its plain meaning and
    restricting reply factums to those in which the moving party responds to an
    issue raised by the responding party and on which the moving party has not
    taken a position.  Self-evidently, the point of reply factums is to ensure that
    each party has had a fair and equal opportunity to argue the issues.  A reply
    factum should not be permitted where it merely confirms or reinforces points already
    made or which could have been made in the moving partys initial factum.

[9]

If, as the appellants contend, the respondent has misstated the evidence
    and/or set out partial statements of fact, in light of the considered reasons
    for decision at first instance and those of the Divisional Court, both majority
    and dissent, this will be apparent to the panel that considers the motion for
    leave.  To reiterate, a reply factum should not be permitted when it amounts to
    re-argument of issues raised in the moving partys factum.

Disposition

[10]

Accordingly,
    I would grant the motion and make the order as sought, striking the appellants
    reply factum.

Released: May 31, 2012 (E.E.G.)

E.E.
    Gillese J.A.


COURT OF APPEAL FOR ONTARIO

CITATION:
Dovigi v. Razi, 2012 ONCA 361

DATE : 20120531

DOCKET: C55136/M41347

Cronk, Juriansz and Epstein JJ.A.

BETWEEN

Patrick Dovigi

Applicant (Respondent in Appeal)

and

Mojdeh Razi

Respondent (Appellant in Appeal)

E. Lenkinski and M. Mehra, for the appellant

H. Niman, A. Volikis and J. Wilson, for the respondent

Heard: May 11, 2012

On appeal from the order of Justice Frances P. Kiteley of
    the Superior Court of Justice dated February 21, 2012.

Juriansz J.A.:

[1]

This is an appeal from the order of Kiteley J. dated February 21, 2012
    assuming jurisdiction over a fathers application for temporary and permanent
    shared custody of his child.

[2]

The mother appeals, submitting that Ontario lacks jurisdiction over the
    custody of and access to the child and, in the alternative, that Ontario should
    decline to exercise jurisdiction and defer to California as the
forum
    conveniens
.

[3]

The mother and father, who are the biological parents of the child, both
    resided in Ontario during the course of their relationship. By November 2011,
    the parents were no longer romantically involved. On November 26, 2011 the
    mother, then some seven months pregnant, left Ontario for what the father
    understood was a visit to California. The child was born on January 14, 2012 in
    California and the mother is now living there and intends to become a permanent
    resident. The child has never been physically present in Ontario. The motion
    judge found as a fact that the mother did not form the intention to live in
    California until after the child was born, a finding the mother attacks on this
    appeal.

[4]

The motion judge assumed jurisdiction by exercising the courts
parens
    patriae
power to protect the child. For the reasons that follow, I would
    allow the appeal.

A.

The motion judges decision

[5]

The motion judge, citing James G. McLeod,
Child Custody Law and
    Practice
, looseleaf (Toronto, Ont.: Carswell, 2007) 3(3), observed that
    the two purposes of jurisdictional requirements are to avoid concurrent
    jurisdiction and to discourage the abduction of children. The first
    consideration does not apply in this case, she said, because the issue of
    concurrent jurisdiction arose only when the appellant commenced proceedings in
    California after being served with the respondents application in Ontario. The
    second consideration does apply, she said, because to decline to take
    jurisdiction in these circumstances would be to encourage a pregnant mother to
    depart from the original jurisdiction in circumstances that are analogous to
    abduction (at para. 21).

[6]

The motion judge recognized that she did not have jurisdiction under the
Childrens Law Reform Act
, R.S.O. 1990, c. C. 12 (
CLRA
).
    Section 22 of the
CLRA
defines when Ontario courts can exercise their
    jurisdiction to make an order for custody of or access to a child. The motion
    judge held that s. 22(1)(b) did not apply because the child was not physically
    present in Ontario at the commencement of the application. Section 22(1)(a)
    requires that the child be habitually resident in Ontario at the time of the
    application. The circumstances of the child did not fall within the ambit of
    the definition of habitually resident under s. 22 but, in her view, this constituted
    a gap in the statute, since the child appeared to have no habitual residence
    under the statute. Given the statutory gap, the fact that both parties had a
    real and substantial connection with Ontario, and the fact that the mothers
    proceedings in California were commenced only after the fathers application
    was filed and served in Ontario, the motion judge concluded, at para. 24:

This is a situation in which it is necessary to invoke the
parens
    patriae
jurisdiction to deal with the uncontemplated situation where it is
    necessary to do so for the protection of the child who falls within that ambit.
    I am mindful that Californias laws and procedures are similar to those of
    Ontario in that there are jurisdictional requirements, parents have equal
    rights, and the best interests of the child is the principle upon which
    judgments are made. However, until the [appellant] allegedly changed her mind,
    the expectation was that [the child] would be parented in Ontario. There is
    evidence as to their respective parenting abilities in Ontario. To protect the
    expectation that [the child] would be parented in Ontario, this court must take
    jurisdiction. There is no basis to refrain from exercising jurisdiction either
    under s. 19(b) or s. 25 of the
CLRA
.

B.

The Parties arguments

[7]

Counsel for the appellant raised a number of arguments. The only one I
    find necessary to deal with is that this is not a case for the exercise of the
    courts
parens patriae
jurisdiction.

[8]

Counsel for the respondent submits that it is not necessary to consider
    whether the motion judge erred by exercising her
parens patriae
power,
    because, in any event, she had jurisdiction under the
CLRA
. He posits
    that a child necessarily must have the same habitual residence as its parents.
    Here, according to the facts as found by the trial judge, both parents were
    habitually resident in Ontario when the application was commenced. He went
    further, arguing that the fathers habitual residence in Ontario, by itself,
    was enough to find the child was habitually resident in Ontario. This
    reasoning, he submits, makes it unnecessary to refer to the statutory
    definition to identify the childs habitual residence.

C.

jurisdiction over custody disputes

[9]

The
CLRA
contemplates only four ways in which an Ontario court
    can exercise its jurisdiction to make an order for custody of a child.

[10]

First,
    under s. 22(1)(a) of the
CLRA
, an Ontario court may make an order for
    custody of a child where the child is

habitually
    resident in Ontario.

[11]

Second,
    under s. 22(1)(b), where the child is not habitually resident in Ontario, the
    court may exercise jurisdiction if the child is physically present in Ontario
    and other requirements are met.

[12]

Third,
    under s. 23, a court has jurisdiction to make an order for custody where the
    child is physically present in Ontario and the court is satisfied that the
    child would, on the balance of probabilities, suffer serious harm under certain
    specified circumstances set out in the Act.

[13]

Fourth,
    the court may exercise its
parens patriae
jurisdiction, which is
    specifically preserved by s. 69 of the
CLRA
.

D.

Analysis

[14]

Of
    the heads of jurisdiction outlined above, the only two argued to be available
    in this case are s. 22(1)(a)  the child is habitually resident in Ontario  and
    the courts
parens patriae
jurisdiction. I do not accept the
    respondents argument that the child is habitually resident in Ontario
    because her parents, or at least one of her parents, are so resident. In
    essence, counsel advocates a common law approach to habitual residence in
    determining the courts jurisdiction. However, it is elementary that a
    statutory definition must be applied when interpreting the very term defined.
    The phrase a court shall only exercise its jurisdiction in s. 22 makes clear
    that the statute has superceded the common law.

[15]

The
    motion judge was correct to find that the circumstances of the child in this
    case do not fall within the ambit of the statutory definition of habitual
    residence. She was wrong, though, to conclude from that fact alone that there
    was a legislative gap.  The fact that circumstances fall outside a definition
    may be a matter of legislative design rather than legislative oversight.
    Discerning the legislative design requires a close consideration of the
    legislation.

[16]

Section
    22(1) limits when the court has jurisdiction to make an order for custody or of
    access to a child on the basis that the child is either habitually resident in
    Ontario at the commencement of the application for the order or, if not
    habitually resident, the child is physically present in Ontario and meets a
    number of other criteria.  Since the child here was not physically present in
    Ontario, the focus becomes the childs place of habitual residence.

[17]

To be habitually resident in Ontario is defined by s. 22(2) of the Act
    as follows:

(2) A child is habitually resident in
    the place where he or she resided,

(a) with both parents;

(b) where the parents are living
    separate and apart, with one parent under a separation agreement or with the
    consent, implied consent or acquiescence of the other or under a court order;
    or

I with a person other than a parent
    on a permanent basis for a significant period of time,

whichever last occurred.

[18]

As
    can be seen, the definition contemplates three possible situations: where the
    child is living with both parents, with one parent, or with neither parent.
    Where the child is living with one parent, the key provision is s. 22(2)(b),
    which specifies that the statutory meaning of habitually resident differs
    from the common-law meaning. Even a child with a stable and settled life in
    Ontario residing with one parent is not habitually resident here under the
    statute unless the childs residence is in accordance with a separation
    agreement, consent, or a court order.

[19]

The
    possibility that the child is living with one parent outside Ontario as a
    result of abduction is specifically addressed by s. 23(3) of the
CLRA
,
    which provides that abduction does not change the habitual residence of a
    child.

[20]

That
    the child is residing with one parent in California without a separation
    agreement, consent, or a court order no more indicates a gap in the statute
    than would a child residing in Ontario with one parent in similar
    circumstances. I conclude that while the motion judge was correct that the
    child does not fall within the ambit of the provisions of the
CLRA
,
    she erred in finding that this results from a legislative gap.

[21]

I
    turn to the motion judges reliance on the courts
parens patriae
jurisdiction.
    The Supreme Court of Canada in
E. (Mrs.) v. Eve
, [1986] 2 S.C.R. 388
    makes it clear, at p. 426, that the courts
parens patriae
jurisdiction is founded on necessity, namely the need to act for the
    protection of those who cannot care for themselves. In the circumstances of
    this case, there was no evidence that it was necessary for the Ontario court to
    act for the protection of this child.

[22]

First,
    the California court has taken jurisdiction over issues relating to the childs
    custody, and as the motion judge noted, Californias laws and procedures are
    similar to those of Ontario, parents have equal rights, and the best interests
    of the child is the principle upon which judgments pertaining to the child are
    made. This is not to say that there could be no circumstances under which a child
    may be in need of this courts protection even where the other state has
    comparable laws. The circumstances of this case, however, simply do not give
    rise to any protection concern.

[23]

Second,
    the motion judge erred by taking jurisdiction [t]o protect the expectation
    that [the child] would be parented in Ontario (at para. 24). In so doing she
    assumed the conclusion of the inquiry into where the best interests of the
    child lay. Where it is in the best interests of the child to be parented must
    be decided by the court with jurisdiction. The outcome of the inquiry into best
    interests does not provide a basis for taking jurisdiction.

[24]

I
    conclude that the motion judge did not have a proper basis for exercising the
    courts
parens patriae
power.

E.

The Motion judges Findings of fact

[25]

This
    courts conclusion that the motion judge erred in law in invoking
parens
    patriae
is sufficient to allow the appeal and overturn the decision below.

[26]

However,
    in case this decision is appealed and as there is ongoing litigation in
    California, I deal with the appellants challenge to certain findings of fact
    made by the motion judge.

[27]

The
    motion judge acknowledged that, in light of this courts decision in
Lerullo
    v. Lerullo
(2006), 32 R.F.L.
(
6th) 246  she could not draw
    conclusions of fact about significant matters in dispute where
the record contained only the competing affidavits of the parties
.
    Yet, citing what she characterized as independent evidence she proceeded to
    find facts. The summary of undisputed facts that preceded her finding that
    the appellant did not form the intention to live in California until after the
    child was born included the fact that the appellant bought a condominium in
    Toronto, the sale of which closed on December 15, 2011. She made no reference,
    however, to para. 116 of the appellants affidavit dated February 7, 2012 which
    states that the condominium was rented to a tenant on December 30, 2011. Nor
    did she make reference to paragraph 55 of the respondents affidavit dated
    January 19, 2012 which states that he recently discovered that between
    November and December 2011, [the appellant] has been purchasing furniture and
    other items for the child and having them shipped to  California.

[28]

In
    my view, this was a case in which the guidance of
Lerullo
should have
    been followed.

F.

Fresh Evidence

[29]

The
    appellant sought to introduce fresh evidence on the appeal, largely related to
    the custody proceedings in California and the processing of her application for
    immigration to the United States.

[30]

The
    respondent does not contest the admission of the evidence of the California
    courts decision to take jurisdiction. This evidence is admitted. The remainder
    of the evidence is not admitted as it was not pertinent to the appeal.

G.

Stay Motion

[31]

By
    order dated May 16, 2012, this court ordered a stay of the motion judges order
    dated May 8, 2012 providing the father with access to the child in Ontario. The
    stay was warranted by the balance of convenience and the courts view that the
    appeal ought to be allowed.

H.

Conclusion

[32]

I
    would allow the appeal, set aside the motion judges order dated February 21,
    2012, and replace it with an order dismissing the fathers application for want
    of jurisdiction.

[33]

In
    accordance with the agreement of counsel, there will be no costs of the appeal,
    the motion to stay and the motion for fresh evidence.

"R.G. Juriansz
    J.A.

I agree E.A. Cronk
    J.A.

I agree G.J. Epstein
    J.A.

Released: May 31, 2012


COURT OF APPEAL FOR ONTARIO

CITATION:

Downer v. The
    Personal Insurance Company, 2012 ONCA 302

DATE: 20120509

DOCKET: C54313

Lang, LaForme JJ.A. and Pattillo J. (
ad hoc
)

BETWEEN

Michael Downer

Plaintiff (Respondent)

and

The Personal Insurance Company

Defendant (Appellant)

Ryan M. Naimark, for the appellant

John W. Bruggeman, for the respondent

Heard: February 17, 2012

On appeal from the judgment of Justice John C. Murray of
    the Superior Court of Justice, dated August 23, 2011, with reasons reported at
    2011 ONSC 4980.

H.S.
    LaForme J.A.:

INTRODUCTION

[1]

This appeal raises the question whether the motion
    judge erred in concluding that the plaintiff, Michael Downer, was involved in
    an accident within the meaning of s. 2(1) of the
Statutory
    Accident Benefits Schedule  Accidents on or after November 1, 1996
, O. Reg. 403/96 (
Schedule
).

[2]

The incident occurred on February 26, 2000 when the
    plaintiff was physically assaulted by several unidentified assailants while
    parked at a gas station. The plaintiff managed to escape by putting his car in
    gear and driving away. He believed that in doing so, he may have run over one
    of his assailants. The plaintiff claims psychological and physical injuries as
    a result of the incident.

[3]

Following the incident, the plaintiffs automobile
    insurer, The Personal Insurance Company of Canada (Personal), paid him
    monthly statutory accident benefits (SABs), including income replacement
    benefits, for some 26 months. However, Personal later advised him that it was
    terminating his benefits because the incident giving rise to his injuries was
    not an accident as defined in s. 2(1) of the
Schedule
. Section 2(1) defines an accident as an incident in which the use or
    operation of an automobile directly causes an impairment. Personal further advised
    that it was seeking repayment of all benefits paid to date because they were paid
    to him in error.

[4]

After a failed mediation before the Financial Services
    Commission of Ontario, the plaintiff commenced an action against Personal
    seeking a declaration that he is entitled to SABs and income replacement
    benefits
.
Personal later
    moved for summary judgment seeking to dismiss the action. The central issue on
    the motion was whether the plaintiff was involved in an accident within the
    meaning of s. 2(1) of the
Schedule
.
    The motion judge granted a declaration that the plaintiff was involved in an accident
    within the meaning of the
Schedule
.

[5]

Personal appeals from the motion judges decision and
    requests an o
rder declaring that the plaintiff was not
    involved in an accident as defined in s. 2(1) of the
Schedule
and
    further requests an order for summary judgment dismissing the plaintiffs
    claim.

[6]

For the reasons that follow, I would allow the appeal,
    in part, to the extent that I would grant a declaration that the
physical
    assault on the plaintiff does not constitute an accident under s. 2(1) of the
Schedule
.

[7]

However, the plaintiff also claims to have suffered
    psychological injuries, including depression, anxiety and post-traumatic stress
    disorder. It was uncontested on the motion that the plaintiff believed he may
    have run over one of his assailants as he fled the scene driving his vehicle. Since
    the plaintiffs alleged psychological injuries associated with this belief, if
    proven, may have been caused by an accident as defined in the
Schedule
,
    I would not dismiss this aspect of the plaintiffs claim.

[8]

In the circumstances, the issue whether the plaintiff
    was involved in an accident is a genuine issue requiring a trial. In
    addition, there are other issues in the action that the motion judge was not
    asked to decide on the motion for summary judgment. As a result, it is my view
    that the action must proceed to trial.

FACTUAL BACKGROUND

[9]

For purposes of the summary judgment motion, the
    parties agreed that the facts involving the incident were as described in
the plaintiffs written statement of March 9,
    2000, which he provided to the insurer in support of his claim for accident
    benefits (see the motion judges reasons, at para. 5). The pertinent facts may
    be summarized as follows.

[10]

On February 26, 2000, the plaintiff drove his jeep into a gas station
    to purchase gas. While his engine was running, and while seated in the car
    sorting money for the purpose of buying gas, he noticed three or four young men
    standing around his vehicle.  One of them called hey, and as the plaintiff
    turned to look, a man hit him from the drivers side. Another man came into his
    vehicle and repeatedly hit him on the head, while others tried to pull him out
    of the vehicle.

[11]

There was a brief struggle with one individual over control of the gear
    shift, but the plaintiff was able to reverse the vehicle and pull out of the
    gas station. He heard something when he pulled out and he thought he may have
    run over one of them. The men involved in the attack were not identified or
    apprehended.

[12]

The next
    day, the plaintiff reported the incident to Personal, which accepted his claim
    and paid him SABs, including
income replacement benefits,
totalling $73,061.27.

[13]

Some 17 months
    later, following a review of its files, Personal took the position that the
    plaintiff was not involved in an accident within the meaning of s. 2(1) of
    the
Schedule
. Personal notified the plaintiff by letter dated August
    3, 2001 that it had erroneously paid him benefits, that it would not pay him
    further benefits, and that it would be seeking a repayment of all benefits paid
    in error pursuant to s. 47(1) of the
Schedule
. Even after this letter
    was sent, Personal continued paying him benefits until May 2002.

[14]

The plaintiff commenced this action in July 2002 seeking, among other
    things, a declaration that he was and continues to be entitled to SABs.
    Personal filed a defence and counterclaim for the monies previously paid. The
    plaintiff filed a reply and defence to counterclaim raising the issue of
    estoppel.

[15]

On January 20, 2011, Personal moved for summary judgment seeking to
    dismiss the plaintiffs claim.

[16]

On the motion, the parties agreed that the central issue to be decided
    was whether the plaintiff had been involved in an accident within the meaning
    of s. 2(1) of the
Schedule
. The parties did not
    argue the question of whether the plaintiff had suffered an impairment, nor
    did they ask the motion judge to decide the issues of repayment and estoppel
    raised by Personals counterclaim.

REASONS OF THE MOTION JUDGE

[17]

The motion judge discussed the legislative history of and the relevant
    case law on the statutory definition of an accident in s. 2(1) of the
Schedule
.
    H
e
noted that accident was defined in the pre-November
    1, 1996 version of the
Schedule
as an incident in which,
directly
    or indirectly
, the use or operation of an automobile causes an impairment:
    see
Statutory Accident Benefits Schedule  Accidents after December 31, 1993
    and before November 1, 1996
, O. Reg. 776/93, s. 1 (emphasis added). He
    recognized that the definition of accident was replaced by the more
    restrictive definition in s. 2(1) the
Schedule
, which defines an
    accident as
an incident in which the use or operation of an
    automobile
directly
causes an impairment
    (emphasis added).

[18]

The motion judge explained that the Supreme Court of Canada in
Amos
    v. Insurance Corp. of British Columbia
,

[1995] 3
    S.C.R. 405, established a two-part test for determining if an incident gives
    rise to accident benefits under automobile insurance policies. The British
    Columbia automobile insurance statute considered in
Amos
provided for benefits payable in respect of death or
    injury caused by an accident that arises out of the ownership, use or operation
    of a vehicle. As the motion judge said, at para. 11, the two-part test under
Amos
is as follows:

1) Did the accident result from the ordinary and well-known
    activities to which automobiles are put? (the purpose test); and

2) Is there some nexus or causal relationship (not necessarily
    a direct or proximate causal relationship) between the plaintiffs injuries and
    the ownership, use or operation of his vehicle, or is the connection between
    the injuries and the ownership, use or operation of the vehicle merely
    incidental or fortuitous? (the causation test).

[19]

The
    motion judge went on to explain that, after the
narrower
    definition of accident was introduced in 1996, t
his court in
Chisholm v. Liberty Mutual
    Group
(2002), 60 O.R. (3d) 776 (C.A.) and in
Greenhalgh
    v. ING Halifax Insurance Co.
(2004),
    72 O.R. (3d) 338 (C.A.),
modified the
causation test
from
Amos
.  The motion judge,
at para. 12,
framed the modified causation test
as follows:
    Is there a direct or proximate causal relationship between the plaintiffs
    injuries and the ownership, use or operation of his vehicle or is the
    connection between the injuries and the ownership, use or operation of the
    vehicle, indirect or merely incidental or fortuitous?

[20]

Based on this test,
the motion judge held that
t
he
    purpose test was met because pulling into a gas station in order to purchase
    fuel is an activity to which all vehicles are put (at para. 14).
He decided that the causation test was also met because
there is a direct or proximate causal relationship between the
    plaintiff's injuries and the ownership, use or operation of his vehicle (at
    para. 15). In reaching this conclusion, the motion judge made the following
    findings, at para. 21:

In the case at bar, the use of the car had not
    ended before injury was suffered.  The insured had not physically left the
    car but was in his vehicle and the engine was running when he was assaulted.
    There was no temporal distance between the end of the use of the car and the
    injuries.  The logical and probable inference from the facts is that the
    assailants were intent on taking possession of and seizing control of Mr.
    Downers vehicle while Mr. Downer was in possession and control of his
    vehicle.  The injuries suffered in this case are not analogous to the
    injuries caused by a random gunshot in a drive-by shooting, as in
Chisholm,
where there was no causal relationship between the claimants injuries and the
    operation of his car.  The injuries caused to Mr. Downer are directly
    connected to the use and operation of his vehicle because they were caused by
    assailants whose purpose was to seize possession and control of his automobile
    from him.  The assault on Mr. Downer was not random but arose out of his
    ownership, use and operation of his vehicle.  As in
Amos
, it was
    the use or operation of his own vehicle that put Mr. Downer in harms
    way.

[21]

The motion
    judge said that the reasons in the above-cited paragraph are sufficient to find
    that the plaintiff was involved in an accident within the meaning of the
Schedule
.
However, he went on to point out, at para. 22, that the plaintiff claims
    to have suffered depression, anxiety and post-traumatic stress disorder.  In
    his statement, the plaintiff referred to his belief that he may have run over
    one of the assailants with his motor vehicle. The motion judge observed: To the
    extent that this belief may contribute to depression, anxiety and
    post-traumatic stress disorder or any other psychological condition, it is
    clear that it is a direct consequence of the use or operation of his motor
    vehicle.

[22]

Finally,
    the motion judge referred to the Supreme Court of Canadas decision in
Citadel
    General Assurance Co. v. Vytlingam
, 2007 SCC 46, [2007] 3 S.C.R. 373. In
    that case, two individuals dropped a large boulder from an overpass onto the
    Vytlingams vehicle, causing permanent catastrophic injuries to the driver and
    serious psychological harm to two family members in the vehicle. The issue
    before the Supreme Court was whether one of the tortfeasors, whose conduct was
    the subject matter of an indemnity claim, was at fault as a motorist for
    purposes of the inadequately insured motorist coverage under Ontario Policy
    Change Form 44R  Family Protection Coverage.

[23]

Writing
    for the court, Binnie J. made the comment, at para. 14, that there is no doubt
    that the Vytlingams were entitled to no-fault benefits since they were using
    their car for an ordinary and well-known motoring activity in driving north
    on Interstate 95, and that the injuries they suffered were related to such use
    and operation. Binnie J. stated that
Amos
clearly established the
    Vytlingams entitlement to statutory benefits.

[24]

Counsel
    for the plaintiff in this case submits that Binnie J. was aware of the change
    in the definition of accident when he said that there is no doubt that the
    Vytlingams were entitled to no-fault benefits. The incident in question in
Vytlingam
occurred in 1999, when the more restrictive definition of accident in s. 2(1)
    of the
Schedule
was in effect
.

[25]

The motion
    judge made it clear, at para. 24, that he was not relying on
Vytlingam
in concluding that there is a direct or proximate causal relationship between
    the plaintiffs injuries and his ownership, use or operation of his vehicle.
    However, he said that if counsel for the plaintiffs interpretation of this
    decision is correct, it is very strong authority in support of his argument on
    behalf of the plaintiff.

ISSUES

[26]

On the appeal from the motion judges order
    dismissing the motion for summary judgment,
[1]
Personals central argument is that the motion judge erred in concluding that
    the plaintiff was involved in an accident within the meaning of the
Schedule
. However, Personal also submits that the motion judge failed to
    address the issue of estoppel raised by the plaintiff in his affidavit filed in
    response to the motion.

[27]

This argument is not properly raised on the
    appeal. Counsel on the motion  the same counsel who argued this appeal
    agreed that the central issue for the motion judge to decide was whether the
    plaintiff had been involved in an accident within the meaning of the
Schedule
. The motion judge referred to counsels agreement at para. 4 of his
    reasons and went on to say: [A]lthough the motion is for summary judgment,
    this Court is asked to decide a question of law and counsel are agreed that I
    should deal with this issue and none of the other issues in dispute.

[28]

Based on counsels agreement, the motion judge
    did not consider any of the other issues in dispute, including the plaintiffs
    estoppel argument, Personals counterclaim seeking to recover previously paid
    accident benefits, and Personals contention that the plaintiff did not suffer
    any impairment within the meaning of the
Schedule
. It would be inappropriate for this court to decide a ground of
    appeal concerning an issue that was not argued before the motion judge.

DISCUSSION

[29]

The motion for summary judgment raised a narrow question of law
    that was to be determined on the basis of undisputed facts (see the motion judges
    reasons, at para. 5). The applicable standard of review in these circumstances
    is correctness: see this courts decision in
Combined Air Mechanical
    Services Inc. v. Flesch
,
2011
    ONCA 764, 108 O.R. (3d) 1, at para. 70; and
Bell
Canada v. The Plan Group
, 2009 ONCA 548, 96 O.R. (3d) 81, at paras. 27 and 33.

[30]

In my view, Personals motion fell into the second
    category of cases referred to in
Combined Air
, at para. 42, involving claims or defences that are
    alleged to be wholly without merit. Personals position was that, based on the
    uncontested evidence on the motion for summary judgment, the plaintiffs claim
    should be found wholly without merit because he was not involved in an
    accident within the meaning of s. 2(1) of the
Schedule
.
The
    motion was thus limited to a narrow question of law that was argued on the
    basis of the pleadings as supplemented by a very limited body of undisputed
    evidence. In other words, there was little to distinguish Personals motion for
    summary judgment from a motion under rule 21.01(1)(a)
of the
Rules of Civil Procedure
, R.R.O. 1990, Reg. 194
.

[31]

To resolve the central issue of statutory
    interpretation as framed by Personal and as argued by the parties, the motion
    judge did not need to exercise the enhanced powers conferred by rules
    20.04(2.1) or (2.2), which permit the motion judge to weigh the evidence,
    evaluate credibility, draw reasonable inferences from the evidence, and order
    the presentation of oral evidence. To the limited extent that the motion judge
    drew an inference from the evidence, he did so regarding the motive of the
    assailants in assaulting the plaintiff. As will be explained below, the issue
    of motive was irrelevant to the question of law before the motion judge.

[32]

In
    rejecting Personals argument that the plaintiffs claim had no chance of
    success, the motion judge decided the question of law in favour of the
    plaintiff and concluded that he was involved in an accident within the
    meaning of s. 2(1) of the
Schedule
. In my view, the motion judge erred
    in how he resolved this question of law on the agreed facts before him.
    Specifically, he erred in concluding that the causation test was satisfied in
    relation to the injuries caused by the assault on the plaintiff while he was
    parked at the gas station.

[33]

The source
    of the motion judges error is attributable to the way he framed the causation
    test. He failed to use the language from
Greenhalgh
and, instead, he
    incorrectly articulated a version of the causation test that tracks much of the
    language from
Amos
. In the motion judges words, at para. 12, the
    modified causation test is as follows:

Is there a direct or proximate causal relationship between the
    plaintiffs injuries and the ownership, use or operation of his vehicle or is
    the connection between the injuries and the ownership, use or operation of the
    vehicle, indirect or merely incidental or fortuitous?

[34]

However,
    the actual wording of the causation test as stated in
Greenhalgh
, at
    para. 36, consists of two questions:

1. Was the use or operation of the vehicle a cause of the
    injuries?

2. If the use or operation of a vehicle was a cause of the injuries,
    was there an intervening act or intervening acts that resulted in the injuries
    that cannot be said to be part of the ordinary course of things?  In that
    sense, can it be said that the use or operation of the vehicle was a direct
    cause of the injuries?

[35]

The
    motion judges statement of the causation test reveals two errors.  First, it
    erroneously refers to ownership, even though s. 2(1) of the
Schedule
only
    refers only to use or operation of the vehicle.
[2]
Second, the motion judge failed to ask whether an intervening act outside the
    ordinary course of things resulted in the injuries.

[36]

Both
    errors are apparent in the motion judges conclusion that there was a causal
    connection between the assault on the plaintiff and his ownership, use and
    operation of his vehicle. The motion judge found this causal connection was
    established based on the undisputed fact that the plaintiff was seated in his
    vehicle with the engine running when he was assaulted, and on the logical and
    probable inference that the assailants wanted to seize possession and control
    of his automobile (at para. 21). According to the motion judge, this motive
    meant that the attack on the plaintiff
was not random but arose
    out of his ownership, use and operation of his vehicle.

[37]

It is
    questionable if the evidence was reasonably capable of supporting the inference
    of motive drawn by the motion judge and attributed to the assailants. In any
    event, in my view, the motion judge erred in law by relying on the location of
    the attack and on the inferred motive of the assailants as proving that there
    is a direct causal relationship between the injuries suffered during the attack
    and the use or operation of a motor vehicle.

[38]

The
    factual inference drawn by the motion judge regarding the assailants purported
    motive was only capable of supporting the proposition that, but for the
    plaintiffs use or operation of the vehicle, he would not have been assaulted.
    However, as this court explained in
Greenhalgh
, at para. 37: [T]he
    but for test only serves to eliminate from consideration factually irrelevant
    causes, but does not conclusively establish legal causation.

[39]

Under the
    modified causation test from
Chisholm
and
Greenhalgh
, it is
    not enough to show that an automobile was the location of an injury inflicted
    by tortfeasors, or that the automobile was somehow involved in the incident
    giving rise to the injury. Rather, the use or operation of the automobile must
    have directly caused the injury.

[40]

Laskin
    J.A.s reasons in
Chisholm
illustrate this point.  In
    that case, a driver was catastrophically injured by gun shots while driving his
    car. Laskin J.A. explained, at para. 29, that the gun shots caused the
    impairment suffered by the driver, not the use or operation of the vehicle:

[E]ven accepting that the use of Chisholms car
    was a cause of his impairment, a later intervening act occurred.  He was shot.
    An intervening act may not absolve an insurer of liability for no-fault
    benefits if it can fairly be considered a normal incident of the risk created
    by the use or operation of the car -- if it is part of the ordinary course of
    things. ... Gun shots from an unknown assailant can hardly be considered an
    intervening act in the ordinary course of things. The gun shots were the
    direct cause of his impairment, not his use of the car. [Citation omitted.]

[41]

Similarly in this case, the assault on the plaintiff as he sat in his
    car sorting his money cannot fairly be considered as a normal incident of the
    risk created by the use or operation of the car.

[42]

Before concluding on this point, I note
    that while the motion judge did not rely on
Vytling
am
in concluding that
    the plaintiff was involved in an accident within the meaning of s. 2(1) of
    the
Schedu
le
, plaintiffs counsel pressed the relevance of this decision
    on appeal. In my view,
Vytling
am
is not binding authority on the point of law in issue here.
    The court in that case was not required to consider the meaning of the definition
    of accident in s. 2(1) of the
Schedu
le
and was not purporting to decide whether the Vytlingams
    injuries were directly caused by the use or operation of their automobile.
    Significantly, in making the comment that
Am
os
clearly established the
    Vytlingams entitlement to statutory benefits, Binnie J. did not refer to this
    courts rejection of the
Am
os
causation test in
Chisho
lm
and
Greenhal
gh
.

[43]

The motion judge thus erred in
    concluding that the plaintiffs injuries from the assault were the result of an
    accident within the meaning of s. 2(1) of the
Schedule
. The governing appellate authority on the causation test
    for defining an accident under s. 2(1) of the
Schedule
makes it plain and obvious on the agreed facts that the
    plaintiffs injuries  insofar as they were caused by the assault  were not
    directly caused by the use or operation of his vehicle, but rather were caused
    by an intervening act in the form of an assault that cannot be said to have been
    part of the ordinary course of things.

[44]

However, I take a different view in
    connection with the plaintiffs belief that he may have run over one of his
    assailants and the psychological impairment that he may have suffered as a
    result of this belief.

[45]

The motion judge referred to the plaintiffs belief that he may
    have run over one of his attackers when he drove away from the scene as another
    element of the incident in question. The motion judge stated, at para. 22,
    that, [t]o the extent that this belief may contribute to depression, anxiety
    and post-traumatic stress disorder or any other psychological condition, it is
    clear that it is a direct consequence of the use or operation of his motor
    vehicle.

[46]

On the appeal, Personal
    submits that there is no independent evidence that the plaintiff actually ran
    over anyone or that his psychological conditions were caused by this belief. According
    to Personal, the onus was on the plaintiff to put this evidence forward on the
    motion for summary judgment.

[47]

I do not agree with
    Personals position for two reasons. First, while the medical evidence dealing
    with psychological impairment did not distinguish between the causes, the
    plaintiffs evidence in his affidavit filed in response to the motion was that
    he was very stressed and nervous after the incident, in part because he thought
    that he may have killed someone or seriously injured a person by running over
    them.

[48]

The second and more
    important reason is the way in which the parties argued the motion. The
    plaintiff was not seeking summary judgment by way of cross-motion and, as noted
    by the motion judge at para. 4, Personal did not ask him to decide the
    impairment issue on a summary basis. The motion judge reinforced this point at
    para. 22:

I am cognizant that impairment is an issue in
    this case and I am not, by the remarks that follow, intending to comment on
    whether the plaintiff was or is impaired.

[49]

The motion judge therefore
    simply assumed, without deciding, that there was a possibility that the
    plaintiffs
belief that he ran over one of his
    assailants may have contributed to his alleged psychological impairments. I
    agree that r
unning over someone can
    fairly be considered as a normal incident of the risk created by the use or
    operation of a vehicle.

[50]

Any resulting psychological
    impairment from such an incident could be
a
    direct consequence of the use or operation of his motor vehicle
. The motion judges comments, at para. 22, which
    I agree with, help to illustrate this application of the causation test:

What if, while fleeing the assailants on the way
    out of the gas station, Mr. Downer had hit an innocent pedestrian with his
    vehicle?  Would any trauma suffered as a result be a direct consequence of the
    operation of the motor vehicle?  Surely the answer is yes.

[51]

Whether or not the plaintiff actually suffered
    the psychological injuries that he complains of, and whether or not such
    injuries were caused by his belief that he may have run over one of the
    assailants, were not issues before the motion judge. Personal was not
    challenging the accuracy or veracity of the plaintiffs evidence or the
    existence of his alleged impairments. And the plaintiff was thus not required
    to file supporting evidence from experts to establish his psychological
    impairments or the causes thereof on the motion.

[52]

The issues whether the plaintiff believed he may
    have run over someone, and whether such belief actually caused him to suffer
    any of the psychological injuries he complains of, remain to be determined
    along with the other issues in dispute between the parties that were not raised
    on the motion for summary judgment, such as Personals counterclaim for
    repayment of benefits and estoppel.

DISPOSITION

[53]

For these reasons, I would allow the appeal, in part, to the
    extent that I would set aside the motion judges declaration and, in its place,
    I would grant a declaration that the physical assault on the plaintiff does not
    constitute an accident under s. 2(1) of the
Schedule
. To the extent
    the plaintiffs claim is for a declaration that he is entitled to SABs and
    income replacement benefits arising from the physical assault, I would grant
    summary judgment in favour of Personal and dismiss this part of the plaintiffs
    claim.

[54]

However, I would dismiss the motion for summary judgment to the
    extent the plaintiff claims entitlement to accident benefits based on
    psychological impairments arising from his evidence that he ran over someone
    during the incident of February 26, 2000.
Given how the motion
    for summary judgment was argued, the question whether the plaintiff was
    involved in an accident in this respect is a genuine issue requiring a trial,
    as are the issues that the motion judge was not asked to decide, such as
    repayment of benefits and estoppel.
The plaintiff may bring a motion in
    the Superior Court of Justice to amend the pleadings in accordance with these
    reasons.

[55]

Because I have set aside the declaration granted by the
    motion judge, I would set aside the motion judges costs award and in its place
    make an order for no costs of the motion. Given the divided success on the
    appeal, I would also make no order for costs of the appeal.

Released:  HSL                                H.S.
    LaForme J.A.

MAY -9 2012                                    I agree
    S.E. Lang J.A.

I
    agree L.A. Pattillo J. (
ad hoc
)

[1]
The parties agree, as do I, that the motion judges order dismissing the motion
    for summary judgment is a final order.  An order dismissing a motion for
    summary judgment on a question of law, where the only genuine issue is the
    question of law, gives rise to
res judicata
and, hence, is a final
    order:
R.S. v. R.H.
(2000), 52 O.R. (3d) 152 (C.A.), at para. 21.

[2]
For ease of reference, s. 2(1) of the
Schedule
defines an accident as
    an incident in which the use or operation of an automobile directly causes an
    impairment.