



COURT OF APPEAL FOR ONTARIO

CITATION: Trillium Motor World Ltd. v. Cassels Brock &
    Blackwell LLP,

2017 ONCA 840

DATE: 20171103

DOCKET: M48164 (C60828)

Cronk, van Rensburg and Pardu JJ.A.

BETWEEN

Trillium Motor World Ltd.

Moving Party

(Respondent/Appellant
    by way of cross-appeal)

and

General
    Motors of Canada Limited and

Cassels Brock &
    Blackwell LLP

Respondent

(Appellant/Respondent
    by way of cross-appeal)

Bryan Finlay, Q.C., Marie-Andrée Vermette, Michael
    Statham, David Sterns, Allan D.J. Dick and Andy Seretis, for the moving party

Peter H. Griffin and Rebecca Jones, for the respondent

Heard: In Writing

REASONS FOR DECISION

Introduction

[1]

This courts decision in this solicitors negligence case was released
    on July 4, 2017:
Trillium Motor World Ltd. v. Cassels Brock & Blackwell
    LLP
, 2017 ONCA 544 (
Trillium v. CBB
).  The moving party, Trillium
    Motor World Ltd. (Trillium), brings a motion in writing to vary the courts direction
    to the trial judge set out at para. 404(3) of the courts reasons.  Specifically,
    Trillium seeks an order stipulating that, on the new damages hearing directed
    by this court at para. 404, the trial judge retains discretion to determine the
    final quantification of damages and the process for calculating the final award
    of damages, subject to a ceiling of $36.9 million.

[2]

The respondent, Cassels Brock & Blackwell LLP (CBB), resists the
    motion.

[3]

For the reasons that follow, we dismiss the motion.

Discussion

[4]

In support of its motion, Trillium relies on rr. 1.04, 37.14(6), 59.06
    and 61.16 of the
Rules of Civil Procedure
, R.R.O. 1990, Reg. 194.  Rule
    61.16(6.1) states:

Subject to rules 37.14 and 59.06, an order or decision of a
    panel of an appellate court may not be set aside or varied under these rules.

[5]

Rule 61.16(6.1) applies to the decision that Trillium seeks to vary.  Thus,
    in order for this court to grant the relief sought, Trillium must bring itself
    within rr. 37.14 or 59.06.

[6]

In our view, Trillium is unable to do so.  Rule 37.14 has no application
    to this case.  Rule 59.06 permits a party to bring a motion for relief other
    than that initially awarded.  However, this courts authority under r. 59.06 to
    reconsider a decision is limited and will be exercised sparingly and only where
    it is clearly in the interests of justice to do so: see
Hoang v. Mann
    Engineering Ltd
., 2015 ONCA 838;
First Elgin Mills Development Inc. v.
    Romandale Farms Ltd
., 2015 ONCA 54, 381 D.L.R. (4th) 114;
Mujagic v.
    Kamps
, 2015 ONCA 360, 125 O.R. (3d) 715.

[7]

The need for the urged variation, according to Trillium, arises from one
    particular interpretation of para. 404(3) of this courts reasons in
Trillium
    v. CBB
, in particular, the words 
x
percent set out in
    parentheses in that paragraph.  Paragraph 404, in its entirety, reads as
    follows:

[404]  For these reasons, I would hold that the question of the
    final quantification of damages be returned to the trial judge for further
    consideration in accordance with the following:

(1)     the proper starting value for the loss of chance
    should be $74.5 million (and not, as the trial judge found, $92 million). 
    Applying a 55 percent contingency, the damages award would be $40.975 million. 
    This figure should be rounded to $41 million;

(2)     account should be taken of the opt-outs from the
    Class, (10 percent), bringing the figure to $36.9 million; and

(3)     a determination should then be made, to the extent
    possible, of how many class members were Participation Form Dealers (
x
percent) to arrive at a new, final number.

[8]

Trillium contends that it is possible to interpret the language of para.
    404(3) as directing the trial judge to determine the final quantification of
    damages by the mathematical exercise of simply multiplying the $36.9 million
    figure referenced in para. 404(2) by the percentage of class members found to
    be Participation Form Dealers and Saturn Dealers, an approach to the
    calculation of damages expressly rejected by the trial judge on the parties
    March 22, 2016 motion to settle the terms of the trial judgment.

[9]

We are not persuaded that this is one of those rare cases in which it
    would be in the interests of justice to invoke this courts narrow jurisdiction
    under r. 59.06.

[10]

The
    July 2017 reasons of this court must be read as a whole and in the context of
    the issues raised and arguments advanced on appeal.  The reasons do not address
    the mathematical approach to the calculation of damages at issue on this
    motion, as urged by CBB before the motion judge and rejected by him.  That
    issue was not argued on the appeal.

[11]

Given
    this courts decision on appeal, the appropriate methodology and process for
    the calculation of damages in this case, including whether or not to adopt a
    mathematical approach to the quantification of damages in the manner urged by
    CBB, will be for the trial judge to determine at the new damages hearing. 
    Subject to the directions provided by this court at para. 404, nothing in this
    courts reasons purports to constrain the trial judges discretion in this
    regard.

Disposition

[12]

For
    these reasons, the motion is dismissed.  CBB is entitled to its costs of the
    motion.  If counsel are unable to agree on the quantum of those costs, CBB shall
    deliver its brief written costs submissions to the Registrar of this court
    within 14 days from the date of these reasons.  Trillium shall deliver its
    responding, and similarly brief, costs submissions within 14 days thereafter.

E.A. Cronk J.A.

K. van Rensburg J.A.

G. Pardu J.A.


