COURT OF APPEAL FOR ONTARIO

CITATION: Isaac Estate v. Matuszynska, 2018 ONCA 177

DATE: 20180223

DOCKET: C62869

Pepall, Lauwers and Huscroft JJ.A.

BETWEEN

Judith
    Isaac as Estate Trustee of the Estate of Glen Michael Isaac, deceased,

Judith
    Isaac in her personal capacity, Darren Isaac, Desiree Chretien,

Alysha
    Bassinette by her litigation guardian Judith Isaac, and

Isabella Rose Wood by her litigation
    guardian Judith Isaac

Plaintiffs (Appellants)

and

Ilona
    Irena Matuszynska
, Jean Lafontaine and

AXA
    Insurance (Canada)

Defendants
    (Respondent)

and

State
    Farm Mutual Automobile Insurance Company

added
    by Order pursuant to Section 258(14) of the

Insurance Act
, R.S.O. 1990 c. I.8, as amended

Third Party (Respondent)

Kevin Egan, for the appellants

Gerard
    Tillmann, for the respondent Ilona Irena Matuszynska

Sonia
    Fabiani and Laura Emmett, for the respondent State Farm Mutual Automobile
    Insurance Company

Heard: May 24, 2017

On appeal from the order of
    Justice Helen A. Rady of the Superior Court of Justice, dated November 2, 2016,
    with reasons reported at 2016 ONSC 3617, and from the costs order dated
    November 2, 2016.

Huscroft J.A.:

OVERVIEW

[1]

On April 14, 2009, Glen Michael Isaac and Jean Lafontaine met at a
    London residence to arrange a drug deal. Lafontaine drove the two of them in a car
    owned by the respondent, Ilona Irena Matuszynska, to a darkened parking lot
    behind a bar in London to rendezvous with the drug dealers. There were two
    additional passengers in Lafontaines car,
Tawnia
    Bailey and Monica Turnbull.

[2]

An argument ensued between Isaac and Lafontaine, and Isaac exited
    Lafontaines car. At some point Isaac smashed the drivers side window of
    Lafontaines car with an unknown object. He then reached inside Lafontaines
    car and was attempting to open the car door and grab the steering wheel. The
    passengers in Lafontaines vehicle thought that Isaac had a weapon of some
    sort.

[3]

Lafontaine attempted to escape from the altercation and drove off in a
    panic, with Isaac holding onto and partly inside the car, apparently attempting
    to get in. Lafontaine attempted to dislodge Isaac by swerving his car and by kicking
    him. The car hit a curb and Isaac fell from the car. He hit his head on the curb
    and died.

[4]

Lafontaine was charged with driving while prohibited, breach of a
    recognizance, and a drug offence, but was not charged with any offences
    relating directly to the accident, such as dangerous driving causing death. The
    police concluded that Isaacs death was accidental.

[5]

Judith Isaac, the deceaseds mother, commenced proceedings claiming
    damages pursuant to the
Family Law Act
, R.S.O. 1990, c. F.3 (
FLA
)
    against various defendants in her personal capacity and as estate trustee of
    her sons estate. The action was framed in negligence.

[6]

The motion judge granted summary judgment dismissing the action at the
    request of State Farm Mutual Automobile Insurance Company (the statutory third
    party) and the respondent, Ilona Irena Matuszynska. The motion judge found Lafontaine
    feared for his safety and that of his passengers and reacted quickly in trying
    to escape. In these circumstances, the doctrine of emergency applied and
    Lafontaine was not to be held to a standard of perfection. The motion judge concluded
    that Lafontaine could not be faulted for his reaction to Isaacs actions, and
    that Isaac was the author of his own misfortune.

[7]

The appellants submit that the motion judge erred in granting summary
    judgment. Specifically, the motion judge erred (i) in applying the doctrine of
    emergency to find that Lafontaine did not fall short of the standard of care
    expected of him; and (ii) in awarding costs against the
FLA
claimants.

[8]

In my view, the motion judge made no such errors.

[9]

I would dismiss the appeal for the reasons that follow.

THE MOTION JUDGES DECISION

[10]

The
    motion judge set out and applied the test for summary judgment from
Hryniak
    v. Mauldin
, 2014 SCC 7, [2014] 1 S.C.R. 87 at para. 66. She considered the
    record before her using summary judgment powers under Rule 20.04(2.1) of the
Rules
    of Civil Procedure,
R.R.O. 1990, Reg. 194, which allowed her to weigh
    evidence, assess credibility and draw inferences of fact. The evidence on the
    motion included several affidavits from Ms. Emmett, a lawyer from the moving
    partys law firm.

[11]

There
    were several attachments to the Emmett affidavits, including a motor vehicle
    accident report relating to the accident; a narrative prosecution summary
    prepared by London Police; Lafontaines statement to the police; a transcript
    of the hearing in which Lafontaine pleaded guilty to offences relating to the
    accident; as well as civilian witness statements and police interviews from Tawnia
    Bailey and Monica Turnbull, passengers in the car driven by Lafontaine, and
    Bonnie Shute, one of the drug dealers and a passenger in the car owned by  Isaac.
    By the time of the motion, Bailey had died and Lafontaines whereabouts were
    unknown.

[12]

The
    motion judge found that the essence of the encounter between Lafontaine and
    Isaac was captured in this passage of Lafontaines statement to police:

I lifted the power window up and I just left a little crack  I
    turned around to look at Glen [Isaac] and the window of the car exploded. Then
    Monica and Tawnia just started screaming  and he was trying to get into the
    vehicle  Glen, into the drivers seat. Thats when I put it in gear and
    stepped on the gas and tried to get away and he held onto the window frame and
    I was just trying to go we were going, the [other vehicle]  started to follow
    me at the same time and thats when I was a bit swerving a little bit trying
    to get for him to let go and hitting him at the same time for him to let go and
    he managed to pull himself in pretty good. I thought he was going to get into
    the vehicle and thats when I just sort of lifted my leg and kicked him in the
    face pretty, pretty, a couple of times.

[13]

The
    motion judge found that Lafontaines essential version of events did not change
    in any significant way. He described an angry confrontation between Mr. Isaac
    and him; the drivers side window was broken in some fashion; Mr. Isaac gained
    entrance through the window; the occupants of the vehicle were panicky; and Mr.
    Lafontaine reacted.

[14]

The
    motion judge quoted extensively from the agreed statement of facts that was
    taken when Lafontaine pleaded guilty to driving while prohibited, breach of a
    recognizance, and a drug offence. Among other things, the Crown Attorney reading
    the agreed statement noted that:

·

Lafontaine closed the drivers window after the deceased left his
    car;

·

the deceased allegedly smashed the drivers window with some type
    of instrument, thought to be a knife sharpener or screwdriver;

·

the passengers in Lafontaines car thought the deceased smashed
    the window with a firearm; however, no firearm was ever discovered;

·

the deceased attempted to leap into the car through the smashed
    window in order to retrieve drugs, which led to a physical struggle with
    Lafontaine;

·

one of the passengers, Ms. Turnbull, said she thought that the
    deceased had a gun;

·

Lafontaine put the vehicle in motion as he fought with the
    deceased over the steering wheel; and

·

Lafontaine attempted to use his knee to dislodge the deceased as
    the car sped off; the fight over the steering wheel continued, and the car
    veered off the road and struck the curb, dislodging the deceased from the
    vehicle.

[15]

The
    motion judge noted that the facts underpinning Lafontaines guilty pleas were
    very closely aligned with what Lafontaine said in his statement to the police.
    As agreed facts, they were taken as proven beyond a reasonable doubt and were
    binding on Lafontaine. The motion judge found that these facts provided
    important corroboration for his earlier police statement, and enhanced his
    credibility.

[16]

The
    motion judge then reviewed the evidence of Ms. Turnbull, Ms. Bailey, and Ms.
    Shute, as provided in their interviews with police, affidavits, and statements
    to police, and found it was similar to and corroborative of the evidence of
    Lafontaine in the salient aspects. The motion judge summed up the evidence before
    her and her findings as follows, at para. 94:

[W]hen all of the evidence is considered, it persuasively
    demonstrates that Mr. Isaac was acting aggressively toward Mr. Lafontaine; he
    was agitated and angry; he confronted Mr. Lafontaine; the drivers side window
    of the Lafontaine vehicle broke; the witnesses considered that Mr. Isaac had a
    weapon of some sort; he attempted to gain entry to the vehicle through the
    window; Mr. Lafontaine took evasive action; and Mr. Isaac fell from the car.

[17]

The
    motion judge noted that it was not in dispute that the appellants entitlement
    to damages was dependent on the deceaseds entitlement to maintain an action
    himself, had he lived. If he had no such entitlement, neither did the
    derivative claimants.

[18]

The
    motion judge rejected the moving parties submission that the doctrine of
volenti
    non fit injuria
applied. However, she concluded that the doctrine of
    emergency applied in this case. She stated that the only logical conclusion on
    the evidence was that Lafontaine acted in a matter of seconds, in a time of
    panic and confusion, when he reasonably feared for his safety and that of his
    passengers. In these circumstances, Lafontaine was not to be held to a standard
    of perfection; the standard expected of him was that of an ordinarily prudent
    person acting in the stress of an emergency.

[19]

The
    motion judge concluded that the deceased could not successfully maintain an
    action against the moving parties and that the derivative claims necessarily
    failed. There was therefore no genuine issue requiring a trial and the motion for
    summary judgment was granted.

[20]

The
    motion judge awarded costs to both Matuszynska and State Farm and against all
    of the appellants, including the
FLA
claimants.

DISCUSSION

(1)

The standard of review

[21]

The
    motion judges decision that there was no genuine issue requiring a trial is a
    finding of mixed fact and law that is subject to review for palpable and
    overriding error:
Hryniak
, at para. 81. The motion judges application
    of the doctrine of emergency to define the standard of care owed by Lafontaine
    is an extricable question of law subject to review for correctness.

(2)

Did the doctrine of emergency apply?

[22]

The
    appellants submit that the motion judge erred in law by not considering and
    applying the conceptual limitations on the availability of the doctrine of
    emergency.

[23]

First,
    they submit that the doctrine applies only if the emergent situation is
    imminent and unforeseen and could not have been reasonably anticipated by the
    party alleged to have been negligent. The appellants argue that it was not
    available in this case because Lafontaine was alert to the possibility of
    danger prior to the deceased smashing his car window. Lafontaine reasonably
    anticipated that Mr. Isaac was about to act negligently and expose himself to
    danger; he foresaw that Mr. Isaac was about to do something unreasonable and
    foolish, which is why he put his car into gear before the window was smashed.
    He could have left before anything happened, and was urged to do so by his
    passengers, but chose not to. Thus, there was no emergency and Lafontaine
    cannot rely on the emergency doctrine.

[24]

Second,
    a person must still exercise the standard of care of a reasonable person notwithstanding
    an emergency situation. The appellants argue that Lafontaine failed to do so; a
    reasonably competent person would not have attempted to speed off when the
    deceased was climbing into the car through the window, driven erratically and
    kicked the deceased in an attempt to dislodge him from the moving vehicle.

[25]

Third,
    the appellants argue that Lafontaine cannot take advantage of the emergency
    doctrine because his own negligence brought about or contributed to the
    emergency. This includes his admissions that he had consumed crack cocaine
    before getting behind the wheel of a car; drove while prohibited from doing so;
    to a darkened parking lot late at night; brought his crack cocaine with him;
    engaged with a person who he knew usually to be under the influence of drugs,
    and; was there to buy drugs.

[26]

I
    would reject these submissions.

[27]

The
    emergency doctrine allows exigent circumstances to be taken into account in
    determining whether the standard of care was met. The question for the motion
    judge was whether the emergency doctrine applied in these circumstances.

[28]

Two
    elements must be established in order for the emergency doctrine to apply.
    First, the harm must be imminent. Second, it must be unforeseen: G.H.L.
    Fridman,
The Law of Torts in Canada

3rd ed. (Toronto: Thomson
    Reuters Canada Ltd., 2010), at p. 378. Put another way, the doctrine will not
    apply where the emergency could have been reasonably anticipated: Lewis N. Klar,
Tort Law
, 5th ed. (Toronto: Thomson Reuters Canada Ltd., 2012), at p.
    360.

[29]

The
    appellants argue that the second element was not established. In essence, they
    say that Lafontaine could have reasonably anticipated that Isaac was about to
    act negligently and expose himself to danger. The appellants point to the
    following evidence:

·

he recognized that Isaac was increasingly agitated;

·

he put the car in gear because he thought that something was
    going to happen;

·

Tawnia Bailey and Monica Turnbull, the passengers in his vehicle,
    told him to leave but he chose not to do so.

[30]

The
    difficulty with this submission is that all of this evidence was considered by
    the motion judge. It cannot be said that she failed to consider it in
    determining that the doctrine of emergency applied. It is implicit in her
    decision that she concluded that Lafontaine did not anticipate the aggressive
    action taken by Isaac  his sudden attack  that caused the emergency.

[31]

Putting
    the appellants case at its highest, Lafontaine had reason to believe that
something
might happen in the course of a drug deal, occurring in the middle of the night
    in an empty parking lot. The appellants assert that Lafontaine foresaw that
    Mr. Isaac was about to do something unreasonable and foolish. But this does
    not come close to establishing that Lafontaine foresaw, or should have foreseen,
    what actually occurred: an attack by Isaac and an attempt to force his way into
    Lafontaines car. This was confirmed by the only witness whose evidence was
    cross-examined, Monica Turnbull, who indicated that she wanted to leave, but
    added: "Well, I mean I don't think [Lafontaine] anticipated what was gonna
    happen to happen."

[32]

The
    motion judge reviews Turnbull's evidence at para. 77 of her decision:

I have the impression that Ms. Turnbull's recent affidavit
    attempted to downplay Mr. Isaac's behaviour and to suggest that Mr. Lafontaine
    was not acting in response to an emergency situation and that he had an
    opportunity to leave.
To the extent that this evidence might have
    raised a genuine issue, it is totally eliminated by her
    cross-examination.
What she says at that time is very similar to what
    she said to police  Mr. Isaac's aggression; the breaking of the window; the
    fear that Mr. Isaac had a weapon; the reaction of the passengers; Mr. Isaac
    coming into the vehicle through the broken window; the ensuing struggle; and
    Mr. Lafontaine's response. [Emphasis added]

[33]

It
    was no error, much less a palpable and overriding error, for the motion judge
    to conclude that Lafontaine did not anticipate Isaacs actions. The appellants
    submission is, in essence, an invitation to this court to reweigh the evidence
    that was before the motion judge and reach a different conclusion. That is not
    the role of this court on appeal.

[34]

The
    principal case relied on by the appellants does not support their position. In
Gellie
    v. Naylor
(1986), 55 O.R. (2d) 400 (C.A.), this court was concerned with a
    claim of emergency by a motorist who struck a pedestrian on the Burlington Bay
    Skyway. The pedestrian had left his vehicle, which had run out of gas, and was
    attempting to cross the bridge to find an emergency telephone when he was hit
    by the defendants truck. As he was driving towards the plaintiff, the
    defendant had seen the plaintiffs car on the shoulder and observed people
    standing behind it. In addition, he had seen the plaintiff attempt to cross the
    bridge, only to be pulled back by a passenger in his car. Nevertheless, the
    defendant proceeded without slowing down and struck the plaintiff as he made a
    second attempt to cross the bridge.

[35]

This
    court held, at p. 402, that although it could be assumed that pedestrians as
    well as other motorists would not act unreasonably and foolishly,

[I[f the motorist is alerted, by the previously observed
    conduct of another person that there is a distinct possibility the other person
    may act negligently and expose himself to danger, then the assumption loses its
    justification. The anticipation of negligent conduct renders such conduct
    foreseeable and makes it incumbent on the motorist to take additional
    precautions.

[36]

Thus,
    the court concluded that the trial judge misdirected the jury by failing to
    direct that the doctrine of emergency applied only if there was no reason to
    anticipate that the plaintiff would not repeat his foolhardy attempt to cross the
    heavily travelled highway again.

[37]

The
    anticipation of negligent conduct in
Gellie
concerned specific conduct
     conduct the defendant had observed as he approached the scene of the
    accident. It is nothing like the circumstances in this case, in which Isaac suddenly
    attacked Lafontaine in the course of a drug deal.

[38]

As
    for the actions taken by Lafontaine, the law is not so unreasonable as to hold
    people to a standard of perfection in determining the appropriate standard of
    conduct in an emergency:
Canadian Pacific Railway v. Gill et al.
,
    [1973] S.C.R. 654, at p. 665. In this case, the motion judge considered all of
    the relevant circumstances and found that the respondent acted reasonably in
    the context of the emergency he faced. She considered and rejected the very
    argument the appellants reiterate on appeal, describing it as parsing the
    chronology of events in minute detail, ignor[ing] the dynamic and rapidly
    escalating situation that was unfoldingthe very danger of judging the events
    of the night with perfect hindsight.

[39]

The
    motion judge found, specifically, that Isaac was solely responsible for what
    had occurred. She summarized her conclusion as follows at para. 104:

[A]s harsh as it may sound, Mr. [Isaac] was the author of his
    own misfortune. By all accounts, he initiated the confrontation with Mr.
    Lafontaine. He acted angrily and aggressively. He broke the drivers side
    window. The passengers thought he had a weapon. They were alarmed. He intruded
    through the broken window of the Lafontaine vehicle. His motive for doing so
    cannot be described as benign, even on the most generous view of the facts. Mr.
    Lafontaine took evasive action in a situation of panic, which unfortunately
    resulted in Mr. Isaacs fall and death. However, in the circumstances, the only
    rational conclusion is he alone is responsible.

[40]

The
    motion judges findings are supported on the record that was before her. There
    is no basis to interfere with them on appeal. The motion judge was entitled to
    conclude that there was no genuine issue requiring a trial and that summary
    judgment was appropriate.

(3)

Did the motion judge err in awarding costs against the
FLA
claimants?

[41]

The
    motion judge awarded costs of $20,000 to State Farm and $12,500 to Matuszynka,
    inclusive of taxes and disbursements. The appellants are jointly and severally
    liable to pay these costs, in accordance with the normal practice.

[42]

The
    appellants acknowledge that
FLA
claimants are not generally exempt from
    costs awards: see
Winters v. Halimand (County),
2015 ONCA 98, 33
    M.P.L.R. (5th) 1, at para. 22. However, the appellants submit that the motion
    judge failed to consider their submission that the
FLA
claimants should
    not be personally liable for costs in this case, as their claims were
    derivative of the Estates claim and would not go ahead if the Estates claim
    failed. They say the motion judge erred in stating in her costs endorsement
    that the Plaintiffs recognize their liability for costs.

[43]

The
    respondents submit that the motion judges costs order was reasonable in all of
    the circumstances. They note that the
FLA
claimants advanced a claim
    that exceeded that of the Estate, and that the cost award was less than the
    already discounted costs outline that the respondents submitted.

[44]

It
    is well established that costs orders are discretionary. This court will
    interfere with them only if the court below
has made
    an error in principle or if the costs award is plainly wrong
:
Hamilton
    v. Open Window Bakery Ltd
., 2004 SCC 9, [2004] 1 S.C.R. 303, at p. 313.

[45]

In
    my view, the costs order was reasonable and there is no basis to interfere with
    it on appeal.

CONCLUSION

[46]

I
    would dismiss the appeal. I would grant leave to appeal the costs order but
    would also dismiss that appeal.

[47]

The
    third party respondent is entitled to costs on appeal of $10,000, inclusive of
    taxes and disbursements. The respondent Ilona Irena Matuszynska is entitled to
    $2,000.

Grant Huscroft J.A.

I agree. P. Lauwers J.A.

Pepall J.A. (dissenting):

A.

Introduction

[48]

Glen Michael Isaac died in an
    unfortunate motor vehicle accident on April 14, 2009.  The appellant, Judith
    Isaac, is his mother.  She instituted proceedings claiming damages against
    various defendants in both her personal capacity and as estate trustee of her
    sons estate.  The remaining appellants are relatives of the deceased and
Family
    Law Act, R.S.O. 1990, c. F.3
(FLA) claimants.  Summary judgment motions
    were successfully brought by the statutory third party, State Farm Mutual
    Automobile Insurance Company, and the respondent, Ilona Irena Matuszynska, the
    owner of the motor vehicle involved.  The motions judge relied on the doctrine
    of emergency and granted summary judgment dismissing the appellants action.

[49]

My colleague would dismiss the
    appeal.  With respect, I do not agree.  I would allow the appeal, set aside the
    summary judgment dismissing the appellants action, set aside the costs award
    payable by the deceaseds mother, his two infant children, and his two siblings
    made in favour of State Farm and Ms. Matuszynska, and order that the action
    proceed to trial.

[50]

In my view, the new and welcomed
    approach to summary judgment described in
Hryniak

v. Mauldin
,
    2014 SCC 7, [2014] 1 S.C.R. 87 does not call for the granting of a judgment
    anchored on minimal factual findings made in the face of unresolved material
    inconsistencies in the evidence, dependent on an infrequently used and
    ill-defined doctrine of emergency absent any analysis of the elements of that
    doctrine, and based on a finding not actually made by the motions judge but
    determined by my colleague to be implicit in her decision.

B.

Facts

[51]

The facts may be briefly
    summarized.  The relevant events took place in London, Ontario.  Jean
    Lafontaine, one of the defendants at trial, was the driver of the motor vehicle
    involved in the deceaseds death.  The vehicle was owned by the respondent, Ms.
    Matuszynska, who was not present during the events in question.  Mr. Lafontaine
    was accompanied by two passengers, Tawnia Bailey and Monica Turnbull.  The
    deceased was the owner of another motor vehicle in which he was a passenger.
    There were three others in that car: an unnamed driver and two drug dealers,
    Johnny Walker and Bonnie Shute.  Travelling in their respective vehicles, the
    two men met late at night to conduct a drug deal.

[52]

When the two vehicles arrived at a
    pre-determined rendezvous point, the deceased exited his vehicle and entered
    Mr. Lafontaines vehicle.  Mr. Lafontaine then drove his vehicle to a parking
    lot, where he was joined by the other vehicle and its passengers.

[53]

Once they arrived in the parking
    lot, a dispute arose between the deceased and Mr. Lafontaine.  The deceased got
    out of Mr. Lafontaines vehicle, and the two men continued to argue.  Based on
    Mr. Lafontaines statement to the police, the deceased went to the other
    vehicle and Mr. Lafontaine spoke on the telephone with Ms. Shute who said in a
    low voice to get out of here.  The deceased returned to talk to Mr. Lafontaine
    and subsequently broke the drivers side window of Mr. Lafontaines vehicle
    and, with his left hand, reached inside the car to either try to open the car
    door, grab something, get into the vehicle, or turn the vehicle off.  The
    passengers in Mr. Lafontaines vehicle, Ms. Bailey and Ms. Turnbull, considered
    that the deceased had a weapon of some sort.  Mr. Lafontaine began to drive
    away while the deceased was holding the side of the vehicle or was partly into
    the vehicle.  Mr. Lafontaine drove some distance out of the parking lot and on
    to Dundas St., where he continued driving.  He was swerving and intermittently
    would slam on the brakes and then press on the gas.  Eventually, the vehicle
    swerved and mounted a curb.  The deceased fell, struck his head, and died
    instantly.

[54]

In the statement given to the
    police prior to his conviction, Mr. Lafontaine admitted that he had taken crack
    cocaine before the accident, and was pretty fucked up.  He stated that he
    anticipated something was about to happen between him and the deceased.  He was
    also aware that the deceased was likely high on drugs and he told police that
    the deceased looked tense, didnt look himself, like he was doing something
    he didnt want to do.  Mr. Lafontaine himself felt like something was wrong.

[55]

Furthermore, as mentioned, Mr.
    Lafontaine admitted that Ms. Shute, who was a passenger in the other vehicle,
    called him on his cell phone to warn[] him and told him to get out of
    here.  When he turned around to look at her, [s]he had an expression on her
    face that something wasnt right.

[56]

Mr. Lafontaine ignored the
    warnings of others that he should leave the scene, as well as his own gut
    feeling that something wasnt right, even as it was evident to him that the
    deceased was becoming increasingly agitated and was getting angry.
    Instead, he kept the vehicle where it was, but shifted it into drive in
    response to the deceaseds growing agitation.

[57]

Mr. Lafontaine was charged with
    driving while prohibited, breach of a recognizance, and a drug offence.  The
    London Police Service concluded that the deceaseds death was accidental.  Mr.
    Lafontaine was convicted of driving while disqualified in violation of s.
    259(4) of the
Criminal Code,
R.S.C. 1985, c. C-46, and also pleaded
    guilty to the other offences with which he was charged.

[58]

The deceaseds mother, siblings,
    and two infant daughters commenced an action alleging, among other things, that
    Mr. Lafontaine had contributed to the deceaseds death.  They sought damages
    against Mr. Lafontaine and others pursuant to the
FLA
. State Farm was
    added as a statutory third party.

[59]

Both State Farm and Ms.
    Matuszynska brought motions for summary judgment asking that the action be
    dismissed.  The motions were heard on April 29, 2016, and the motions judge
    granted the motions on September 22, 2016.

C.

Motions Judges Decision

[60]

The motions judge set forth the
    applicable test for summary judgment and then turned to the paper record before
    her.  The evidence before the motions judge consisted of: six affidavits sworn
    by State Farms lawyer; one affidavit from State Farms investigator reporting
    on his interview with Ms. Bailey, who was the front-seat passenger in
    Lafontaines car; an affidavit that was filed by the appellants and that was
    sworn by Ms. Turnbull, who was the back-seat passenger in Mr. Lafontaines car;
    and a transcript of State Farms cross-examination of Ms. Turnbull.  The only
    evidence under oath of anyone who was at the scene was that of Ms. Turnbull,
    and she was the only witness at the scene whose evidence was tested under
    cross-examination.  The motions judge did not hear any
viva voce
evidence.

[61]

The record also included Mr.
    Lafontaines statement to the police.  At the time of the summary judgment, Mr.
    Lafontaines whereabouts were unknown and Ms. Bailey had passed away.

[62]

The motions judges reasons
    reproduced excerpts from the evidence, reciting at length the contents of the
    affidavits of State Farms lawyer and also reproducing nine and one half pages
    from the transcript of Ms. Turnbulls cross-examination.

[63]

There was an issue as to the
    admissibility of the statements Mr. Lafontaine made to the police due to
    hearsay and credibility concerns.  The motions judge addressed this issue,
    quoting at length from the exchange of counsel and the court at Mr.
    Lafontaines criminal proceeding.  However, nowhere did the motions judge make
    any findings at this stage.

[64]

The motions judge then reviewed
    Ms. Turnbulls affidavit and portions of the transcript of her
    cross-examination.  As she noted, in that cross-examination, Ms. Turnbull had
    testified that the deceased seemed nervous or agitated, and that she was
    uncomfortable and did not have a good feeling.  Ms. Turnbull also indicated
    that the deceased was obviously using drugs, and that she did not know whether
    the deceased had a knife or gun in his pocket as she never saw anything, but
    that he kept his hands in the front pocket of his hoodie.  She responded
    affirmatively when counsel for State Farm asked whether it was her assumption
    that he had a knife or a gun or something like that in the hoodie pocket.

[65]

Ms. Turnbull further testified
    that, when the two vehicles arrived in the parking lot, she went to the other
    car to purchase her stuff from Bonnie Shute and when she got back, the
    deceased was a little more heated and getting more upset.  She said to Mr.
    Lafontaine: lets get out of here and lets go.  Specifically, she stated:
    there was like a bit of a maybe a minute or two where I had already said to
    [Mr. Lafontaine], like lets go, you know.  So I, I dont know why he didnt, I
    dont know why he didnt go.  He was very calm.  She reiterated later in her
    cross-examination that Mr. Lafontaine was like very calm through the entire
    thing, you know, like very calm, even though she agreed she ha[d] a really
    bad feeling and continued to press Mr. Lafontaine to leave.  Commencing at
    question 315 in the transcript, she was asked and answered the following
    questions:

Q.  And you told [the deceased], sorry, you told [Mr. Lafontaine]
    to roll up the window and get out of there?

A.   Yes.

Q.   What specifically did you say?

A.  Thats exactly what I said.  Yeah.  And I said it a few
    times actually.

[66]

Later, at question 356, she
    stated:

Well, I mean I dont think he anticipated what was gonna happen
    to happen.
But there was a couple of times where I think it could have been
    avoided, you know, where I had sort of said like, lets go, and I dont know
    why he didnt, you know.  Like before things got really heated there was a
    couple opportunities where he couldve just driven away
, you know.
    [Emphasis added.]

[67]

Although the motions judge failed
    to make note of this, Ms. Turnbulls observation that the deceaseds death
    could have been avoided accorded with Mr. Lafontaines own statement to police
    that the events were pretty unnecessary.

[68]

The motions judge also recited
    from Ms. Turnbulls police interview, concluding that this evidence provided
    important corroboration of Mr. Lafontaines version of events in his police
    statement and the facts outlined in his subsequent guilty pleas.  In considering
    the admissibility of Ms. Turnbulls statement, the motions judge held that that
    there was no reason it was inadmissible.  Despite several material
    inconsistencies between the statement and Ms. Turnbulls sworn testimony, the
    motions judge reasoned at para. 79 that Ms. Turnbull would undoubtedly be
    cross-examined on [the statement] if she were to give inconsistent evidence at
    trial.  However, the statement was not put to Ms. Turnbull in
    cross-examination.

[69]

Apart from four paragraphs at the
    commencement of her reasons, the motions judges actual findings are, for the
    most part, confined to one paragraph.

[70]

At para. 101, the motions judge
    determined that the doctrine of emergency was applicable to Mr. Lafontaines
    conduct.  She concluded that the only logical conclusion was that Mr.
    Lafontaine acted at a time when he reasonably feared for his own safety and
    that of his passengers.  He reacted in a matter of seconds, in a time of panic
    and confusion, if not outright chaos.  He was not to be held to a standard of
    perfection.  Relying on
Walls v. Mussens et al
.
(1969), 11
    D.L.R. (3d) 245 (N.B.C.A.), she noted at para. 102 that a party will not be
    adjudged guilty of contributory negligence merely because, as it turns out, he
    unwittingly took the wrong course.

[71]

The motions judge concluded at
    para. 104 that the deceased was the author of his own misfortune.  He
    initiated the confrontation with Mr. Lafontaine, acted angrily and
    aggressively, and broke the drivers side window.  He attempted to gain entry
    to the vehicle through the window.  The witnesses considered that he had a
    weapon of some sort.  She found that Mr. Lafontaine took evasive action in a
    situation of panic, which unfortunately resulted in the deceaseds fall and
    death.  In the circumstances, the only rational conclusion was that the
    deceased alone was responsible.

[72]

As such, she decided that the
    appellants, including the derivative claimants, could not successfully maintain
    their action.  There was therefore no genuine issue requiring a trial and the
    motions for summary judgment were granted.

D.

The Appeal

[73]

The appellants submit that the
    motions judge erred in her treatment of the doctrine of emergency in finding
    that Mr. Lafontaine bore no responsibility in this case, and in her conclusion
    on contributory negligence.  The appellants argue that the motions judge failed
    to consider the deceaseds behaviour that put Mr. Lafontaine on notice of the
    possibility of danger.

[74]

I agree with the appellants that
    the motions judge erred in her treatment of the doctrine of emergency.  At no
    time did the motions judge consider the elements of the doctrine of emergency.
    Nor did she attempt to justify her conclusion in the face of conflicting
    evidence from Ms. Turnbull  the only person at the scene of the accident who
    provided affidavit evidence and was cross-examined  that Mr. Lafontaine was
    not in a panic and that she had repeatedly told him to leave, as had Ms.
    Shute.  The motions judge failed to consider whether the confrontation could
    have reasonably been anticipated by Mr. Lafontaine, and therefore fell into
    reversible error. As stated in
Hryniak
at para. 84:

[W]here the motion judge applies an incorrect principle of law,
    or errs with regard to a purely legal question, such as the elements that must
    be proved for the plaintiff to make out her cause of action, the decision will
    be reviewed on a correctness standard. [Citation omitted.]

[75]

In tort law, emergencies may arise
    in a variety of contexts. In certain intentional torts, for example, assault or
    trespass to property, the defences of self-defence or necessity may be
    available and in that way, consideration of an emergency may be appropriate.
    In contrast, with negligence, an emergency does not amount to a defence; rather
    it informs the standard of care.

[76]

In this case, the appellants
    claim is framed in negligence.

[77]

To avoid liability, a person must
    exercise the standard of care that would be expected of an ordinary,
    reasonable, and prudent person in the same circumstances.  What is reasonable
    depends in part on the likelihood of a foreseeable harm:
Ryan v. Victoria
    (City)
, [1999] 1 S.C.R. 201, at para. 28. In an emergency, a person is not
    to be held to a standard of perfection.  As the Supreme Court stated in
Canadian
    Pacific Ltd. v. Gill et al.
, [1973] S.C.R. 654, at p. 665, [i]t is trite
    law that faced with a sudden emergency for the creation of which the driver is
    not responsible he cannot be held to a standard of conduct which one sitting in
    the calmness of a courtroom later might determine was the best course.  See
    also:
Horsley v. MacLaren
, [1972] S.C.R. 441.  In this way, the doctrine
    of emergency demands an analysis of the applicable standard of care.

[78]

However, to constitute an
    emergency in a legal sense, the emergent situation must be imminent and
    unforeseen: G.H.L. Fridman et al,
The Law of Torts
in Canada
, 3rd
    ed. (Toronto: Thomson Reuters Canada Ltd., 2010), at p. 378.

[79]

The
CIVJIl Jury Instructions,
    2nd ed,
2017 Update [February 2017], at §8.04.1, put it this way:

A person who, without negligence on his or her part, is
suddenly
    and unexpectedly confronted
with an emergency arising from either the
    actual presence or the appearance of
imminent danger
to self or to
    others is not expected or required to use the same judgment and care that is
    expected of him or her in calmer and less hurried moments. Such a person is not
    required to exercise extraordinary care and control. His or her duty is to
    exercise only the care that an ordinary, prudent person would exercise in the
    same situation.  The test in such a case is not whether a better course of
    action was open, but whether what was done was what an ordinary prudent person
    might reasonably be expected to do in such an emergency. [Emphasis added.]

[80]

As described by Lewis N. Klar, in
Tort
    Law
, 5th ed. (Toronto: Thomson Reuters Canada Ltd., 2012), at p. 360, the
    doctrine will not apply where the emergency could have been reasonably
    anticipated.  This was explained by this court in
Gellie v. Naylor et al.
(1986), 55 O.R. (2d) 400 (C.A.).  In that case, the trial judge failed to
    properly instruct the jury because he had not instructed them that, in the
    particular factual circumstances of that case, they could find that the
    antecedent conduct of the plaintiff factually negated the existence of an
    emergency in its legal sense.  This court stated at p. 402:

[I]f the motorist is alerted, by the previously observed
    conduct of another person that there is a distinct possibility the other person
    may act negligently and expose himself to danger, then the assumption loses its
    justification. The anticipation of negligent conduct renders such conduct
    foreseeable and makes it incumbent on the motorist to take additional
    precautions: see generally Fleming,
The Law of Torts,
6th ed. (1983), at
    pp. 115-6:

Liberty to act on an expectation of non-negligence in others
    ceases as soon as there are indications that they are, or are likely to be,
    acting imprudently. The ever present possibility of negligent behaviour demands
    constant scrutiny in every direction whence danger may loom, and the greater
    the risk the more tentative must be the assumption that others will conduct
    themselves with reasonable care.

[81]

Similarly, as explained in
Holizki
    Estate v. Alberta (Public Trustee)
, 2008
    ABQB 716, 462 A.R. 85, at para. 173:

The case law establishes limitations on when this doctrine can
    be invoked. First, the defence is only applicable if the emergent situation is
    imminent and unforeseen and could not have been reasonably anticipated by the
    reacting driver. If the defendant driver anticipates a dangerous situation and
    has sufficient opportunity to apply his brakes or take other evasive action to
    avoid the collision, but does not, then the doctrine is not applicable and the
    defendant driver will be held contributorily liable for the resulting damages.

[82]

The duty arises when the
    possibility of danger first becomes apparent:
Holizki
,
at para.
    175.

[83]

The motions judge did not turn her
    mind to the elements of the doctrine of emergency.  She did not consider
    whether the evidence of an emergent situation was imminent, unforeseen, or
    unanticipated, and failed to consider the applicable law as set out in
Gellie
.  There was evidence in the record before her that
    might support such a finding, but the motions judge did not consider the
    elements of the doctrine.  Examples of evidence on which a finding of imminence
    and foreseeability might be based include the following:

-

The
    passenger in the deceaseds vehicle, Ms. Shute, called Mr. Lafontaine on her
    cell phone and repeatedly urged him to drive away;

-

Mr.
    Lafontaine himself had a gut feeling something wasnt right.  This feeling of
    unease was echoed by Ms. Turnbull;

-

Mr.
    Lafontaine noted the way the deceased was just standing with his hands in the
    pockets of his hoodie, appearing tense, and that he just kept looking at the
    other driver, getting increasingly agitated.  Ms. Turnbull similarly observed
    that the deceased was nervous and agitated;

-

Mr.
    Lafontaine had already put the car in drive because he had a feeling something
    was going to be happening;

-

Mr.
    Lafontaine knew the deceased was high all the time pretty much, knowledge
    again shared by Ms. Turnbull;

-

As
    the argument escalated, the deceaseds voice was a bit threatening and he was
    getting angry;

-

Mr.
    Lafontaine rolled up the window at some point during the argument as it got
    more heated;

-

Ms.
    Turnbull had repeatedly told Mr. Lafontaine to leave.  She testified that there
    was a minute or two between the times she told him to do so;

-

Mr.
    Lafontaine drove some distance intermittently slamming on the brakes, pressing
    on the gas, slamming on the brakes before the deceased was flung off of the
    car.  As Mr. Lafontaine told the police, his passengers were screaming at the
    top of their lungs, like telling me to stop, like stop the vehicle and I didnt
    want to stop the vehicle;

-

Mr.
    Lafontaine kicked the deceased in the face trying to dislodge him; and

-

When
    asked by the police how he felt about what happened, Mr. Lafontaine responded:
    It was  Id say it was pretty unnecessary.  I was pretty fucked up.  This
    reflected Ms. Turnbulls observation that the outcome could have been
    avoided.

[84]

The motions judge failed to
    consider whether the evidence of antecedent conduct rendered the subsequent
    events imminent and reasonably foreseeable.  If it was reasonably possible for
    Mr. Lafontaine to anticipate negligent conduct, he should not be able to rely
    on the doctrine to escape any liability.  Having failed to consider the
    elements of the doctrine of emergency, the motions judge erred in granting
    summary judgment against the appellants on that basis.  Having failed to
    consider these factors, the motions judges determination was not available to
    her.

[85]

My colleague also states that the
    motions judge did not err because she considered the evidentiary record and
    that it is implicit in her decision that Lafontaine did not anticipate the
    harm that gave rise to the emergency.

[86]

I disagree with this analysis for
    three reasons.

[87]

First, contrary to my colleagues
    reasons, the motions judge did not consider the record as she should have. It
    is not enough to simply reproduce all of the evidence and then say it has been
    considered; there has to be some analysis.  This is particularly true given the
    motions judges clear preference for the witness statements over the sworn testimony
    of Ms. Turnbull, and her failure to resolve material inconsistencies between
    the two.

[88]

When asked about some of these
    inconsistencies on cross-examination, Ms. Turnbull explained that she knew
    significant parts of Ms. Baileys witness statement were fabricated  for
    example, Ms. Bailey lied about consuming and purchasing drugs on the day of the
    events.  Despite her preference for the police statements of other witnesses
    over Ms. Turnbulls sworn testimony, the motions judge did not wrestle with the
    credibility issues engaged by the differing accounts.

[89]

Nor did the motions judge grapple
    with Ms. Turnbulls own admission on cross-examination that, at the time her
    police statement was made, she was high on narcotics, living a lifestyle where
    she was okay with lying to police, and was trying to protect Mr. Lafontaine,
    her-then boyfriend.  In contrast, Ms. Turnbulls affidavit was made after three
    years sobriety from narcotics, when she was no longer involved with Mr.
    Lafontaine and had no further impetus to protect him.  However, the motions
    judge did not explain why, in the face of these factors, she nonetheless
    treated Ms. Turnbulls police statement as more reliable than her subsequent
    sworn testimony.

[90]

Second, the key evidence that was
    given by Ms. Turnbull and contradicted by no one was that she repeatedly told
    Mr. Lafontaine to leave and there was time to do so.  He had also received the
    same advice from one of the passengers in the other car, Bonnie Shute.  The
    motions judge did not consider this evidence or wrestle with it.

[91]

Third, the question is not just
    what Mr. Lafontaine actually did, as my colleague suggests, but whether a
    reasonable and prudent person in those circumstances would have acted
    differently.

[92]

I reject my colleagues contention
    that this appeal was simply an invitation by the appellants for this court to
    reweigh the evidence.  This was not a case where Mr. Lafontaine was nervous
    because he was engaged in a drug deal in the middle of the night in an empty
    parking lot as my colleague asserts.  Both cars were present in the lot, as
    were all of the passengers.  The operation was not described by the motions
    judge  or indeed anyone else  as covert or hasty.  The evidence of Ms.
    Turnbull was that Mr. Lafontaine was calm.  In addition, both Ms. Turnbull and
    Mr. Lafontaine were clearly anticipating an altercation, as they both shared a
    feeling of unease.  At a minimum, the appellants were entitled to expect that
    the motions judge would consider whether Mr. Lafontaine exercised the care that
    an ordinary, prudent person would exercise in the same situation.  That
    expectation was not met in this case.

[93]

Hryniak
ushered in a new approach to summary judgment.  This
    was at least in part a response to the need to provide for greater access to
    justice.  Superior Court judges have answered the Supreme Courts entreaty with
    a huge degree of professional commitment and diligence.  This is to be lauded.
    A major goal of summary judgment is costs savings.  However, the goal is not
    summary judgment at all costs.  There will still be some cases that ought to go
    to trial.  Some caution must be used.  This is particularly so in a case such
    as this that involves a largely unexplored area of the law and which would
    benefit from the full record that a trial provides.

[94]

Moreover, this summary judgment
    was anchored on minimal first hand evidence, unresolved contradictions in the
    evidence, and no recourse to
viva voce
evidence.  In my view, it should
    be set aside.

E.

Disposition

[95]

For these reasons, I would allow
    the appeal, set aside the summary judgment dismissing the appellants action,
    and order that the action proceed to trial.

[96]

On the issue of costs of the
    appeal, I would order the respondents to pay on a joint and several basis the
    costs of the appeal fixed in the amount of $12,000 inclusive of disbursements
    and applicable taxes.  On the issue of costs of the summary judgment motion, I
    would set aside the motions judges costs award of $20,000 in favour of State
    Farm and $12,500 in favour of Ms. Matuszynka against the appellants and remit
    the costs to be fixed by the trial judge.

Released: February 23, 2018 (S.E.P.)

S.E. Pepall J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Kidanemariam v. Toronto (City), 2018 ONCA 167

DATE: 20180216

DOCKET: C63342

Hourigan, Roberts and Nordheimer JJ.A.

BETWEEN

Demesew
    Tabor Kidanemariam, Nahome Demesew,

by her
    Litigation Guardian Seole Aemero Walelegne and

Selome Aemero Walelegne
    personally

Plaintiffs

(Appellants)

and

City of Toronto

Defendant

(Respondent)

Nicholas P. Kapelos, for the appellants

Erin D. Farrell, for the respondent

Heard and released orally: February 13, 2018

On appeal from the judgment of Justice Thomas Lederer of
    the Superior Court of Justice, dated January 12, 2017.

REASONS FOR DECISION

[1]

This is an appeal of the motion
    judges order dismissing the appellants claim against the City of Toronto
    arising from a fall on a sidewalk. The appellants also seek leave to appeal the
    costs award made by the motion judge.

[2]

The appellant, Selome Walelegne,
    sustained injuries when walking in front of a building located at 8 Wellesley
    Street East, Toronto.  Ms. Walelegne testified that she veered briefly off the
    concrete sidewalk and walked on an adjoining narrow strip that was covered with
    paving stones. She said that as she was walking on the strip, she felt as if
    she was pushed.  Her foot landed on a section of the strip that was missing a
    paving stone.  Ms. Walelegne then fell to the sidewalk and suffered a shoulder and
    other injuries.

[3]

Ms. Walelegne brought an action in
    negligence against the City, alleging that it failed to maintain the sidewalk
    in order to make it safe for pedestrian use. Her husband and daughter asserted
Family
    Law Act
, R.S.O. 1990, c. F.3 claims.

[4]

The City brought a motion for
    summary judgment relying on the defences contained in s. 42(3) of the
City
    of Toronto Act
,
2006
, S.O. 2006, c.11, Sch. A. The motion judge held that the
    City did not know, and could not reasonably have been expected to have known,
    about the alleged state of non-repair, given that it was not revealed in its
    annual walking inspection or in its twice weekly road patrols.  There was also no
    record of complaint about the area. The motion judge further found that the
    City took reasonable steps to prevent the default from arising. Accordingly, he
    concluded that the defences in s. 42(3)(a) and (b) of the
Act
were available to the City.

[5]

The appellants submit that the
    motion judge erred in his application of the summary judgment rule and
    misconstrued the evidence.  We disagree.

[6]

The motion judge carefully
    considered the evidence from the City that it undertook reasonable steps to
    prevent any default or state of non-repair from arising. That evidence was
    essentially unchallenged and the motion judge therefore made no error in
    finding that the City could avail itself of each of the defences in s. 42(3)(a);
    (b) and (c) of the
City of Toronto Act
.
Those
    defences are a complete answer to the appellants claims. There was no need for
    a trial in these circumstances.

[7]

With respect to the motion for
    leave to appeal the costs award, we are not satisfied that the motion judge erred
    in principle in making his costs order. The City as the successful party was
    entitled to its costs of the action and, after a thorough review of the bill of
    costs, the motion judge made a substantial reduction to the amount claimed.

[8]

The appeal is dismissed and the
    motion for leave to appeal the costs award is denied.

[9]

The City did not seek costs of the
    appeal.  Consequently, there is no order for costs of the appeal.

C.W. Hourigan J.A.

L.B. Roberts J.A.

I.V.B. Nordheimer J.A.


COURT OF APPEAL
    FOR ONTARIO

CITATION: Kueber v. Royal Victoria Regional Health Centre,
    2018 ONCA 125

DATE: 20180209

DOCKET: C63552

Simmons, Roberts and Nordheimer JJ.A.

BETWEEN

Barbara Kueber

Plaintiff (Appellant)

and

Royal Victoria Regional Health Centre, Barrie Medical
    Clinics Inc., Dr. Sayed Mostafa Amir Shourideh-Ziabari, Dr. Laurie Elizabeth
    Shaver, Dr. Angelo John Iocca, Dr. Heather Lynne Waterman, Dr. George Nicholas
    Karasmanis, Dr. Andrea Boyd May, Triage Nurse J. Doe, Dr. Darren Jonathan
    Usher, County of Simcoe Paramedic Services, Paramedic J. Doe, Dr. David Boushy,
    Dr. Nazir Ahmad Malik

Defendants (Respondents)

Barbara Kueber, in person

Jonathan Gutman, for the respondent Royal Victoria
    Regional Health Centre

Mark Vernon, for the respondent Barrie Medical Clinics
    Inc.

Peter Downs, for the respondent doctors

Jacinthe Boudreau, for the respondent County of Simcoe
    Paramedic Services

Heard: January 18, 2018

On appeal from the judgment of Justice Hugh K. OConnell of
    the Superior Court of Justice, dated February 22, 2017.

REASONS FOR DECISION

[1]

The motion judge granted summary judgment dismissing the appellants
    action against: County of Simcoe Paramedic Services; Paramedic J. Doe; the nine
    doctors named in the statement of claim; and Barrie Medical Clinics Inc. He
    also granted partial summary judgment dismissing her action against Royal
    Victoria Regional Health Centre as it relates to events on March 10 and 11,
    2012.

[2]

The appellant appeals the motion judges decision. At the oral hearing,
    we did not call on the respondents to address all the appellants arguments.
    For the reasons set out below, apart from a correction to the partial summary judgment
    granted to Royal Victoria Regional Health Centre, we see no basis on which to
    interfere with the motion judges decision.

[3]

In our view, this is precisely the type of case that summary judgment is
    designed to address so as to avoid putting the parties to the time and expense
    of a full blown trial. It is the type of case that can be fairly resolved in
    line with the goal of proportionate, cost-effective and timely dispute
    resolution:
Hryniak v. Mauldin
, 2014 SCC 7, [2014] 1 S.C.R. 87, at
    para. 67.

[4]

Further, absent an error of law, the decision of the motion judge is
    entitled to deference. Where there is no error in principle, the determination
    of the motion judge should be upheld absent a showing of palpable and
    overriding error:
Hryniak
, at para. 81.

(i)

The appellants claims against County of Simcoe Paramedic Services

[5]

The appellants claims against County of Simcoe Paramedic Services and
    an unknown paramedic fell into three main categories. First, she claimed she
    was defamed in a March 10, 2012 ambulance call report, which noted anxiety,
    yelling, and aggressiveness on her part and that she sometimes becomes violent.
    Second, she claimed that, on March 21, 2012, a paramedic threatened to taser
    her. Third, she made general allegations that, in essence, the paramedic
    services provided to her fell below the standard of care, causing her to endure
    multiple incidents of endangerment and negatively impacting her care.

[6]

The motion judge gave ample reasons for concluding that: i) summary
    judgment was appropriate; ii) the paramedics description of the appellants
    history and status in the March 10, 2012 ambulance call report was not
    defamatory; and iii) there was no basis in the record for concluding either
    that a paramedic threatened to taser the appellant on March 21, 2012 or that
    paramedic services provided to the appellant fell below the standard of care.

[7]

As a starting point, the motion judge was not persuaded that the entries
    in the ambulance report had been published so as to support a claim for
    defamation. In any event, he concluded there was no evidence that the
    descriptions in the report were defamatory. The motion judge found the
    descriptions were based on good faith observations by the paramedic and that
    the appellant authenticated, in large measure, her state of mind as described
    in the report. This finding was supported by the record.

[8]

As for the threatened tasering, the two paramedics on scene were not
    cross-examined on the denials in their affidavits that that had occurred. And on
    discovery, the appellant had acknowledged she could not recall what was said.
    Rather, she said that she
believed
that is what would have been said.

[9]

Finally, in relation to the issue of breach of a duty of care, the trial
    judge concluded there was nothing in the record or submissions to suggest any
    deficiency in what the paramedics did.

[10]

We
    agree that the motion judge erred when he indicated at paras. 121 and 131 of
    his reasons that the appellant did not deliver affidavit evidence on the
    summary judgment motion.
[1]
She had, in fact, delivered some affidavits, although it could be said that
    they were not entirely responsive to the issues raised on the summary judgment
    motion. However, at footnote 11 to paragraph 287, he found that the various texts
    the appellant had authored, setting out a purported history of events during
    the time frame underpinning her claim (which were before the court but, in his
    view, not in a form receivable in evidence), were completely self-serving. Based
    on our review of the record, this finding was entirely justified and the motion
    judges erroneous conclusion that the texts were not properly before him did
    not give rise to a miscarriage of justice.
[2]

[11]

Finally,
    we reject the appellants complaint that the motion judge erred in granting
    summary judgment because County of Simcoe Paramedic Services failed to adduce
    evidence concerning the standard of care. In the particular circumstances of
    this case, we see no error in the motion judges conclusion that the pleadings
    and record failed to reveal a factual foundation that would have brought the
    standard of care into issue, much less what damages occurred.

(ii)

The appellants claims against the nine doctors

[12]

The
    appellant's claims against the nine doctors were for medical negligence,
    falsification of records and defamation, and, in some instances, lack of
    informed consent.

[13]

The
    doctors provided expert opinion evidence supporting their claims that they met
    the standard of care. The appellant did not cross-examine the doctors experts
    and filed no contradictory expert evidence to support findings of breach of the
    standard of care or causation. In these circumstances, it was entirely open to
    the motion judge to dismiss the appellants claims for medical negligence.

[14]

Although
    the appellant complained on the motion that the doctors experts had not
    complied with the r. 53.03 requirement to provide an acknowledgment of experts
    duty, there was evidence before the motion judge, which he accepted at para.
    167 of his reasons, that the acknowledgements (Form 53) had been forwarded to
    the appellant.
[3]
In the face of the appellants assertions at the motion hearing that she did
    not receive the acknowledgement forms, it would have been preferable had the
    motion judge accepted counsels offer to file them at the time of the hearing.
    Nonetheless, as he accepted the evidence that the forms had been sent, he did
    not commit reversible error in failing to do so. It was open to him, on the
    basis of that evidence, to conclude that the doctors experts had complied with
    r. 53.03.

[15]

Concerning
    the claims of falsification of records and defamation, the motion judge
    concluded that they were rooted in complete speculation and innuendo. The
    appellant has not identified any error in this finding.

[16]

As
    for the informed consent issue, the motion judge was entitled to rely on the
    appellants acknowledgement on discovery that she was limiting her claim against
    Dr. Iocca to post-operative treatment. Dr. Ioccas expert supported his
    position that his post-operative treatment met the standard of care.

[17]

In
    all the circumstances, we see no error in the summary judgment dismissing the
    appellants claims against the doctors.

(iii)

The appellants claims against Barrie Medical Clinics Inc.

[18]

The
    appellant visited two of the doctors against whom she advanced claims at Barrie
    Medical Clinics Inc. Evidence on the summary judgment motion indicated these
    doctors were independent contractors. In any event, as we have said, while the
    doctors adduced expert evidence supportive of their care and treatment, the
    appellant failed to introduce contradictory expert evidence. We see no error in
    the summary judgment dismissing the appellant's claims against Barrie Medical
    Clinics Inc., in the circumstances.

(iv)

The appellants claims against Royal Victoria Regional Health Centre

[19]

The
    motion judge granted summary judgment dismissing the appellant's claims against
    Royal Victoria Regional Health Centre concerning the March 10 and 11, 2012 hospital
    visits. At the appeal hearing, Royal Victoria Regional Health Centre
    acknowledged that its motion for partial summary judgment dismissing the claims
    against it was limited to the claims concerning the actions of Triage Nurse J.
    Doe on March 10 and 11, 2012. The claims relating to March 10 and 11, 2012
    should not therefore have been dismissed in their entirety.

[20]

The
    appellants claims against Triage Nurse J. Doe relating to March 10 and 11,
    2012 were essentially that on March 10, 2012 a hospital nurse negligently
    entered incomplete and false information that defamed her, impacted her care,
    and interfered with future treatments.

[21]

Concerning
    March 11, 2012, the appellant claimed that: she was discharged before being seen
    by a physician; she was required to list her allergies and reactions
    experienced despite having given the hospital allergy information previously; Triage
    Nurse J. Doe advised her that Stevens-Johnson Syndrome was not a condition
    treated at the hospital; and triage notes failed to accurately record the
    purpose of her visit to the hospital.

[22]

The
    motion judge noted that the appellant had advised at discovery that she was not
    proceeding with her defamation claim. Further, he found that the appellants claim
    that records had been falsified was speculative. He also concluded that there
    was no evidence that the appellant had suffered any damages as a result of her
    other complaints. Although the appellant was initially discharged, ultimately,
    she was seen by a doctor on March 11, 2012 concerning Stevens-Johnson Syndrome.
    The motion judge found there was no nexus between the events of March 10 and
    11, 2012 and the appellants treatment on March 22, 2012. In our view, these
    findings were open to the motion judge on the record before him, and the
    appellant has failed to demonstrate any error.

(v)

Disposition

[23]

Based
    on the foregoing reasons, paragraph two of the judgment, dated February 22,
    2017, is amended to read as follows:

2. THIS COURT ORDERS AND ADJUDGES that
    the following claims in the within action as against the defendant, Royal
    Victoria Regional Health Centre, relating to events on March 10 and 11, 2012,
    be and are hereby dismissed:

i) On March 10, 2012, Triage Nurse
    J. Doe entered false and incomplete information into the plaintiffs record
    that impacted her care and interfered with future treatment;

ii) On March 11, 2012, Triage
    Nurse J. Doe was negligent when she advised that the hospital does not assess
    or treat Stevens-Johnson Syndrome;

iii) On March 11, 2012, Triage
    Nurse J. Doe was negligent in failing to accurately record the purpose of her
    visit, which impacted on the plaintiffs care; and

iv) Triage Nurse J. Doe was negligent.

[24]

The
    appellants appeal is otherwise dismissed with costs to the respondents on a partial
    indemnity scale, fixed in the following amounts inclusive of disbursements and
    taxes: County of Simcoe Paramedic Services, $10,000; the nine physicians, $7,500;
    Royal Victoria Regional Health Centre, $7,500; and Barrie Medical Clinics Inc.,
    $5,000.

Janet
    Simmons J.A.

L.B. Roberts
    J.A.

I.V.B.
    Nordheimer J.A.

[1]
The County of Simcoe Paramedic Services, the doctors, and Barrie Medical
    Clinics Inc.s summary judgment motions were heard in October 2015. Royal
    Victoria Regional Health Centres summary judgment motion had to be adjourned
    to February 2016. Although the summary judgment motions heard in October 2015 were
    completed at that time and although the motion judge indicated he would provide
    judgment on the motions he had heard to that point in time, he did not do so to
    avoid the risk that further submissions could impact on the earlier motions.
    Between October 2015 and February 2016, the appellant delivered an affidavit
    attesting to the truth of the contents of various text messages she had previously
    filed.

[2]
Section 134(6) of the
Courts of Justice Act
, R.S.O. 1990, c. C. 43,
    provides that "[a] court to which an appeal is taken shall not direct a
    new trial unless some substantial wrong or miscarriage of justice has
    occurred."

[3]

Rules of Civil Procedure
, R.R.O. 1990, Reg. 194. T
his
    court has indicated that r. 53.03 applies on a summary judgment motion:
Sanzone
    v. Schechter
, 2016 ONCA 566, 402 D.L.R. (4th) 135, at paras. 15-16.


COURT OF APPEAL FOR
    ONTARIO

CITATION: Lakehead Roofing & Metal Cladding Ltd. v.
    1304808 Ontario Inc., 2018 ONCA 129

DATE: 20180212

DOCKET: C63156

Feldman, MacPherson and Huscroft JJ.A.

BETWEEN

Lakehead Roofing & Metal Cladding Ltd.

Applicant (Appellant)

and

1304808 Ontario Inc.

Respondent (Respondent)

Donald B. Shanks and Rosa Carlino, for the appellant

Roderick W. Johansen, for the respondent

Heard: November 8, 2017

On appeal from the order of Justice W. Danial Newton of
    the Superior Court of Justice, dated April 21, 2016.

Feldman J.A.:

A.

Introduction

[1]

The appellant was a commercial tenant in Thunder Bay, Ontario. The
    respondent was the landlord.

[2]

The tenant sought a declaration under the
Commercial Tenancies Act
,
    R.S.O. 1990, c. L.7 (the
Act
), that: (i) the landlord had wrongfully
    and illegally distrained assets and equipment of the tenant after terminating
    the tenancy by changing the locks; or (ii) the distraint was excessive.

[3]

The tenants position was that its application could be granted based on
    the application record. The landlords position was that a trial was required
    to resolve one or more of the factual issues.

[4]

The application judge found that: (i) terminating the lease was neither
    the intent of the landlord nor the effect of changing the locks, and therefore
    the lease was not terminated before the distraint; and (ii) a trial was
    necessary to determine whether the distraint was excessive, including the
    amount of any rent that remained owing, and the value of the distrained
    equipment. He also found that proof of any tenants damages also required a
    trial.

[5]

The appellant submits that the application judge erred in concluding that:
    (i) the landlords notices and actions did not have the effect in law of
    terminating the lease before the distraint; and (ii) a trial was needed to find
    excessive distraint, when the values attributed to the distrained equipment by
    both parties exceeded the rent that remained owing.

[6]

In my view, the application judge was entitled to make the findings he
    did on the record before him. I would therefore dismiss the appeal.

B.

Facts

[7]

The application judge referred to the affidavit evidence filed on behalf
    of each party. Mr. Perrier is a director of the landlord corporation and a 20%
    shareholder of the tenant corporation. He is also a partner in Perhol
    Construction, another tenant occupying the same premises as the appellant
    tenant. He deposed that the relationship between the landlord and the tenant
    having deteriorated, the landlord delivered a notice to the tenant on January
    29, 2016, terminating the tenancy effective February 29, 2016.

[8]

Mr. Brescia, president of the tenant, deposed that there was no written
    lease agreement, that the landlord would invoice the tenant at the end of the
    month for rent and utilities, that invoices were not delivered on regular,
    specific dates, and that payment was not required until 30 or 60 days following
    receipt of an invoice.

[9]

On February 10, the landlord sent the tenant a notice advising that it
    was proceeding to change the locks on the premises for the security of all
    tenants, as the property manager had been informed that the gate to all
    premises had been left open and another tenant had property missing. The notice
    provided that tenants would have full access from 7 a.m. to 5 p.m. during the
    week, and could gain access on evenings and weekends on 24 hours notice.

[10]

On
    February 12, Mr. Perrier delivered a statement that set out rent and utilities
    owing by the tenant up to the end of February in the amount of $66,291.70,
    together with a distraint notice that gave the tenant five days to pay before
    the landlord would appraise and sell its equipment. Mr. Brescia stated that
    there were no arrears of rent as of February 12, and that he had not received
    the invoices referred to in the statement. Nevertheless, the tenant paid the
    amount of $59,951.98, representing rent and utilities up to February 10.

[11]

The
    February 12 distraint notice also informed the tenant that the landlord had
    changed the locks to protect the goods and chattels, but that the lease was not
    being terminated until February 29, and that the tenant could request access to
    occupy and use the premises and redeem the goods and chattels upon payment of
    the rent arrears. Mr. Perrier deposed that because Perhol Construction had
    complained that Lakehead personnel had left the gate to their shared premises
    unlocked, it was for security reasons that he changed the locks, but not to terminate
    the lease.

[12]

Mr.
    Brescia stated in his affidavit that following the changing of the locks on
    February 10, he requested access to the leased premises to remove chattels but
    was refused. He again requested access on February 12, by email. It was then that
    he received the response advising that the chattels had been distrained for
    non-payment of rent. His affidavit also stated that Lakehead employees reported
    that they were harassed by the landlords officials and were directed as to
    what they were permitted to remove from the premises.

[13]

The
    application judge identified three issues to be addressed: (i) whether there were
    arrears of rent; (ii) whether the tenancy had been terminated at the time of
    the distraint, in which case, the distraint was unlawful; and (iii) if the
    tenancy had not been terminated at the time of the distraint, whether the distraint
    was nevertheless excessive.

[14]

On
    issue (i), the application judge found that on the face of the record, it
    appeared there was some rent in arrears, but the amount could not be determined
    without further evidence.

[15]

On
    issue (ii), after reciting the facts set out above, the application judge
    referred to the decision of Lederman J. in
Falwyn Investors Group Ltd. v.
    GPM Real Property (6) Ltd.
(1998), 22 R.P.R. (3d) 1 (Ont. Ct. Gen. Div.),
    affd [2000] O.J. No. 2877 (C.A.), where he quoted from the decision of Holland
    J. in
Commercial Credit Corp. v. Harry D. Shields Ltd.
(1980), 29 O.R.
    (2d) 106 (H.C.), affd (1981), 32 O.R. (2d) 703 (C.A.). Those cases stand for the
    following propositions:

·

A landlord may effect re-entry by changing the locks on the
    tenants premises.

·

However, the mere act of changing the locks is not determinative
    of whether the lease has been forfeited.

·

To effect a forfeiture, the landlord must deprive the tenant of
    possession.

[16]

In
Commercial Credit
, as in this case, the distraint notice indicated
    that the locks were changed for security purposes, but that the tenant could
    arrange for access by contacting the landlord. Applying that case, the application
    judge concluded that the changing of the locks did not deprive the tenant of
    possession of the premises because, in accordance with the distraint notice,
    the tenant could have full access from 7 a.m. to 5 p.m. on weekdays and after
    hours on 24 hours notice. Therefore the tenancy had not been terminated at the
    time of the distraint.

[17]

On
    the third issue, the application judge found that the amount of arrears of rent,
    if there were any remaining, could not be determined on the record before him. Because
    neither side had provided particularized estimates of the value of the tenants
    equipment being held, the application judge found that further evidence was
    needed to determine the extent, if any, of excessive distraint. He therefore
    ordered a trial to determine whether there had been excessive distraint, and if
    so, the amount of damages, if any, suffered by the tenant as a result.

C.

Issues

[18]

This
    appeal raises two issues. First, did the application judge err in law and
    misapprehend the evidence in his statement and application of the test for
    determining whether, by changing the locks, the landlord had actually terminated
    the lease before distraining, thereby making the distraint illegal? Second, did
    the application judge make a palpable and overriding error of fact by
    concluding that there was insufficient evidence before the court to find that
    the distraint was excessive, when both parties estimated the value of the
    distrained assets to be in excess of the amount of rent owing?

D.

Analysis

(1)

Issue One  did the landlords actions effectively terminate the lease?

[19]

The
    appellant tenant agrees that by changing the locks on commercial premises, the
    landlord does not automatically terminate a lease. It submits, relying on
Rays
    Outfitters v. Lixo Investments
, 2014 ONSC 3884, at para.15, that the test
    is whether the intended and actual effect of changing the locks was to exclude
    the tenant from the premises, thereby terminating the lease.

[20]

It
    argues that in his reasons, the application judge looked only at the written
    notice, which said that access would be given to the tenant on request, and did
    not consider or give effect to evidence that in fact the landlord denied access
    to the tenant on a number of occasions.

[21]

I
    do not accept this submission. The record before the application judge
    consisted of an affidavit from each side, attaching emails and lawyers
    letters. The complaints of access denial problems can be viewed as minimal,
    sporadic and ad hoc. It can be inferred from Mr. Brescias affidavit, that
    while the matter did not go smoothly, the tenant was not excluded from the
    premises over the month-long notice period. While it is true that the application
    judge did not address the alleged access denial specifically, it can be
    inferred that he did not consider it significant enough to have the effect in
    law of terminating the lease, when the clear intent of the landlord from the
    notices it sent and the distraint was for the lease to remain in place until
    February 29, and the tenant was on the premises during that period.

[22]

In
    my view, the application judge made a reasonable finding based on the record
    and with a full appreciation of the legal test. I would not interfere with his
    decision.

(2)

Issue Two  did the trial judge err by ordering a trial of the issues
    surrounding excessive distraint and damages?

[23]

The
    appellant points to the fact that in his affidavit, Mr. Brescia estimates the
    value of the equipment and chattels being held for distress at over $250,000, while
    the list from the landlord of a portion of the chattels being held provides a value
    of $177,892. The appellant argues that both values significantly exceed the
    amount of rent the landlord claims remains outstanding, resulting in excessive distraint.
    In his affidavit, Mr. Perrier counters that the $177,892 value represents
    chattels that the landlord has agreed to release, and therefore Mr. Brescia is
    overstating the value of the goods in dispute.

[24]

The
    application judge found the record unclear on the issue of the amount of rent
    in arrears, or even whether there was any rent in arrears. He also was well
    aware of the estimated values ascribed by the parties to the equipment and
    chattels but because they were merely estimates, he was not prepared to make
    findings without proper evidence of value. He concluded that proof of damages
    by the tenant also required a trial.

[25]

This
    matter was brought before the court as an application for a declaration under
    the
Act
. Section 66(1) of the
Act
provides for a summary
    determination of such disputes. It provides:

66.
(1)
Where goods or chattels are distrained by a landlord for arrears of rent and
    the tenant disputes the right of the landlord to distrain in respect of the
    whole or any part of the goods or chattels, or disputes the amount claimed by
    the landlord, or the tenant claims to set off against the rent a debt that the
    landlord disputes, the landlord or the tenant may apply to a judge to determine
    the matters so in dispute, and the judge may hear and determine them in a
    summary way, and may make such order in the premises as he or she considers
    just.

[26]

In
    my view, the application judge cannot be faulted for his disposition. He was
    able to make a determination on the record before him in a summary way on the
    first issue, whether the landlord had terminated the lease by changing the
    locks. However, the parties did not present sufficient evidence for him to
    determine the amount of rent that remained outstanding, if any, the value of
    the goods and equipment that had been distrained, and any damages suffered by the
    tenant if the distraint was excessive.

E.

Conclusion

[27]

I
    would dismiss the appeal with costs fixed at $10,000 inclusive of disbursements
    and HST.

Released: K.F. February 12, 2018

K.
    Feldman J.A.

I
    agree. J.C. MacPherson J.A.

I
    agree. Grant Huscroft J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Luckevich v. Ivany, 2018 ONCA 144

DATE: 20180214

DOCKET: C64299 & C64300

Doherty, Paciocco and Nordheimer JJ.A.

BETWEEN

Lydia Luckevich and Pemberley Investments Ltd.

Plaintiffs (Respondents)

and

Howard Paul Ivany
and Terrence S. Reiber

Defendants (
Appellant
)

AND BETWEEN

Janet Louise Hilson and 1771085 Ontario Limited

Plaintiffs (Respondents)

and

Howard Paul Ivany
and Terrence S. Reiber

Defendants (
Appellant
)

Michael Katzman, for the appellant

Howard W. Reininger, for the respondents

Tim Duncan, for the Trustee in Bankruptcy

Heard: February 5, 2018

On appeal from the orders of Justice Meredith Donohue of the
    Superior Court of Justice, dated August 8, 2017, sitting without a jury.

Nordheimer J.A.:

[1]

These two appeals were heard together as they raise two common issues. First,
    does a claim for contribution and indemnity represent property of the bankrupt
    that vests in the Trustee under s. 71 of the
Bankruptcy and Insolvency Act
,
    R.S.C. 1985, c. B-3 (
BIA
)? Second, if the answer to the first issue
    is Yes, and the Trustee refuses to advance the claim for contribution and
    indemnity, is the bankrupt entitled to advance it where a creditor/plaintiff
    has sought, and obtained, a lifting of the stay of proceedings under s. 69 of
    the
BIA
?

[2]

The background facts that are common to both proceedings are as follows.
    The appellant is a defendant in the within actions initiated by the respondents.
     The actions also originally named Terrence S. Reiber as a defendant.

[3]

The appellant was petitioned into bankruptcy by the respondents after initiating
    these actions. A stay was accordingly imposed upon the actions pursuant to s.
    69 of the
BIA
.

[4]

The actions continued against Reiber and were eventually settled. Further
    to the settlement, the actions against Reiber were dismissed. The respondents
    have yet to disclose the amount paid to them or any other details of the
    settlement.

[5]

The respondents then moved to lift the stay, in order to allow these
    actions to continue against the appellant. The purpose of lifting the stay was
    to permit the respondents to seek declarations that the indebtedness of the
    appellant came within s. 178 of the
BIA
, such that it would survive
    the appellants discharge.

[6]

The stays were lifted by orders of the Registrar in Bankruptcy. However,
    the orders provide that any judgment that may be obtained against the appellant
    will be released unless the debt or liability comes under the exemption
    provisions of s. 178 of the
BIA
. The respondents subsequently obtained
    orders amending the statements of claim to seek a declaration that the
    indebtedness comes within s. 178 of the
BIA
. The amended statements of
    claim were served upon the appellant, who filed statements of defence.

[7]

In April of 2016, the appellant was examined for discovery. The
    appellant says that during the examination it became clear to him, for the
    first time, that the respondents were seeking damages against him for actions
    or omissions of Reiber.

[8]

The appellant wished to commence a third party claim in each action
    against Reiber for contribution and indemnity. He took steps to obtain the
    consent of the respondents to issue the third party claims. The respondents
    refused to consent. The appellant then brought a motion for leave to issue the
    third party claims against Reiber and to extend the time for so doing.

[9]

Reiber took no position on the appellants motion. The respondents and
    the Trustee in Bankruptcy opposed the motion, arguing that the proposed claim
    for contribution and indemnity constituted property which is vested in the
    Trustee by virtue of s. 71.

[10]

The
    motion judge found that the Trustee did not have any intention of pursuing the
    third party claims. However, she also found that the appellant could not pursue
    the third party claims because he is an undischarged bankrupt and thus has no
    capacity to dispose of or otherwise deal with his property pursuant to s. 71. Consequently,
    she dismissed the appellants motion.

Analysis

[11]

I
    begin my analysis with reference to s. 71 which reads:

On a bankruptcy order being made or an assignment being filed
    with an official receiver, a bankrupt ceases to have any capacity to dispose of
    or otherwise deal with their property, which shall, subject to this Act and to
    the rights of secured creditors, immediately pass to and vest in the Trustee
    named in the bankruptcy order or assignment, and in any case of change of Trustee
    the property shall pass from Trustee to Trustee without any assignment or
    transfer

[12]

Property
    is defined in s. 2 as follows:

property means any type of property, whether situated in Canada
    or elsewhere, and includes money, goods, things in action, land and every
    description of property, whether real or personal, legal or equitable, as well
    as obligations, easements and every description of estate, interest and profit,
    present or future, vested or contingent, in, arising out of or incident to
    property.

[13]

[T]hings
    in action has the same meaning as a chose in action. A chose in action is
    defined in
Black's Law Dictionary
,
10th ed, as:

1.   A proprietary right in personam,
    such as a debt owed by another person, a share in a joint-stock company, or a
    claim for damages in tort;

2.  The right to bring an action to recover a debt, money,
    or thing;

[14]

The
    issue is whether a claim for contribution or indemnity is a chose in action
    such that it falls within the definition of property in s. 2 of the
BIA
.

[15]

The
    appellant relies on this courts decision in
Placzek v. Green
, 2009
    ONCA 83, 245 O.A.C. 220, where Simmons J.A. said, at para. 35:

There is ample authority in Ontario for the proposition that a
    claim for contribution and indemnity under s. 1 of the
Negligence Act
is not a damage claim arising out of a tort, but instead is a statutory claim
    founded on principles of restitution and unjust enrichment.

[16]

The
    appellant proceeds from this authority to assert that the third party claim is
    strictly defensive in nature and serves only to limit his exposure to liability
    and damages. Consequently, the appellant asserts that the result of the third party
    claim does not constitute property within the meaning of the
BIA
.

[17]

I
    do not agree. In my view, a third party claim for contribution and indemnity is
    properly considered property as that term is defined in the
BIA
. I
    reach that conclusion for the following reasons.

[18]

First,
    I appreciate that a claim for contribution and indemnity does not exist until
    another claim is launched to which the claim for contribution and indemnity can
    attach. That reality does not change the fact, though, that a third party claim
    for contribution and indemnity is an action that can result in a benefit to the
    bankrupt and thus is a potential asset in which all of the bankrupts creditors
    should share.
[1]
For example, if a stay was lifted to permit a claim to be advanced against a bankrupt
    and the Trustee knew that the bankrupt had insurance for the claim, the Trustee
    would presumably want to advance a claim for contribution and indemnity to
    protect against that claim. In that situation, some portion of the plaintiffs
    judgment would be recovered from the third party and would come into the
    bankrupts estate.

[19]

Second,
    the definition of property is very broad. It is clear that the intention was
    to vest all of the property of the bankrupt in the Trustee. As noted in
Chetty
    v. Burlingham Associates Inc
.
(1995), 25 Sask. R. 249 (C.A.), at
    para. 10:

This is a very broad description designed to catch every
    conceivable type of asset. Indeed, the general scheme of the Act is to include
    virtually all assets and then to exclude certain specific assets from
    distribution to the creditors as is provided in s. 67(1).

[20]

Third,
    the conclusion that a claim for contribution and indemnity constitutes property
    is consistent with the decision in
Meisels v. Lawyers Professional
    Indemnity Co
.,
2015 ONCA 406, 126 O.R. (3d) 448, where this court
    concluded that a claim for indemnity under an insurance policy was a claim that
    vested in the Trustee.

[21]

The
    fact that the claim for contribution and indemnity was property that vested in
    the Trustee is not the end of the inquiry, however. The court was still
    entitled to review the decision of the Trustee not to pursue the claim and, if
    appropriate, authorize the bankrupt to advance it under s. 37 of the

BIA
.
    Section 37 reads:

Where the bankrupt or any of the creditors or any other person
    is aggrieved by any act or decision of the Trustee, he may apply to the court
    and the court may confirm, reverse or modify the act or decision complained of
    and make such order in the premises as it thinks just.

[22]

The
    appellant raised this point before the motion judge. She dismissed it on the
    basis that no motion had been brought by the appellant for such relief.
[2]
In my view, the motion judge erred in her approach to this issue. Rather than
    simply dismissing it, the motion judge ought to have taken one of the following
    three routes. One, she could have dealt with the s. 37 issue since it was squarely
    before her. Two, she could have adjourned the motion before her to permit the
    bankrupt to bring a s. 37 motion so that the matters could be addressed
    together. Three, failing to take either of the first two routes, she ought to
    have made it clear that her decision did not resolve whether the appellant
    should be entitled to relief under s. 37.

[23]

The
    problem created by the manner in which this proceeding has unfolded is that
    there is an outstanding order of the Superior Court denying the bankrupt the
    right to advance the third party claim. It is not clear, therefore, that a
    judge hearing the s. 37 motion would now have jurisdiction to grant the
    bankrupt the right to do so. Had the motion judge expressly made her order
    without prejudice to the bankrupt seeking the same relief through a s. 37
    motion, that problem would have been avoided. However, she did not do so,
    either in her order or in her endorsement.

[24]

Precluding
    the bankrupt from bringing a claim for contribution and indemnity, in light of
    the Trustees refusal to do so, leaves the situation that the bankrupt could be
    faced with a judgment for the entire amount due to the respondents, that will
    come out of his or her estate, with no ability to reclaim some portion of that
    amount from another person who contributed to the loss. Not only does that
    result work to the detriment of the bankrupt, it also works to the detriment of
    all creditors who would otherwise share in the benefit that would result from a
    reduction (or possible elimination) of any judgment that the respondents might
    obtain. That result becomes even more egregious in a situation, such as this,
    where the respondents are seeking to have their claims declared to come within s.
    178. If that relief is granted, then the appellant, once discharged, still has
    the judgment to honour and yet has no ability to then claim the contribution
    due to him by the third party. The inequity of that result is obvious.

[25]

The
    respondents and the Trustee attempt to avoid this inequity in two ways. One is
    that they claim that their settlement with the third party has dealt with any
    contribution that the third party might have to make to the respondents claims.
    With respect, that is not the result of that settlement. The appellant was not
    a party to that settlement and is not bound by whatever determination was made
    as to the third partys responsibility for the matters in issue. All the
    settlement does, at most, is require the respondents to reduce their claims by
    the amount of any monies received.

[26]

The
    other is the suggestion that the respondents are only seeking damages against
    the appellant for which he is solely responsible. In that regard, the
    respondents and the Trustee say that the situation here mirrors the decision in
Taylor v. Canada (Minister of Health)
, 2009 ONCA 487, 95 O.R. (3d) 561.
    In
Taylor
, the plaintiff had clearly limited her claim to the alleged negligence
    of Health Canada. That is not how the amended statements of claim are drafted
    in this case. In this case, the claims are advanced for the joint actions of
    the appellant and Reiber. There is no similar restriction of the claims just to
    the individual responsibility of the appellant.

[27]

The
    inequity that results from the order of the motion judge remains. I acknowledge
    the possibility that there might be circumstances where a Trustee could have
    legitimate and pressing concerns regarding the impact that advancing a third
    party claim might have on the overall administration of the bankrupts estate. No
    such concerns are apparent in this case nor were any outlined for us during the
    course of the appeal hearing. However, if there are any such issues, they can
    be considered on the s. 37 motion.

[28]

The
    motion judge erred in dismissing the appellants motions for leave to issue
    third party claims in these circumstances. The appeal must be allowed and the
    order below set aside. That result will permit the question of whether the
    appellant should be granted leave to issue the third party claims to be dealt
    with in the outstanding s. 37 motion.

[29]

The
    parties may make submissions on the matter of costs. The appellant shall file
    his submissions within 10 days of the release of these reasons and the
    respondents and the Trustee shall file their submissions within 10 days
    thereafter. No reply submissions are to be filed without leave of the court. None
    of the submissions shall exceed five pages in length.

Released: DD FEB 14 2018

I.V.B. Nordheimer J.A.

I agree. Doherty J.A.

I agree. David M. Paciocco J.A.

[1]

I note that a third party claim is defined as an action in s.
    1(1) of the
Courts of Justice Act
, R.S.O. 1990, c. C.43 and r. 1.03(1)
    of the
Rules of Civil Procedure
, R.R.O. 1990, Reg. 194.

[2]
We are advised that, since the motion judges decision, a s. 37 motion has been
    brought but it has been adjourned pending the outcome of this appeal.