



COURT OF APPEAL FOR ONTARIO

CITATION: Jaffer v. Pardhan, 2017 ONCA 612

DATE: 20170721

DOCKET: C62857

Sharpe, Lauwers and Roberts JJ.A.

BETWEEN

Yasmin Jaffer
and
Alnoor Pardhan

Plaintiffs

(
Appellants
)

and

Naureen Pardhan,
Yasmin
    Jaffer
and Y.Y. Annette Choy

Defendants

(Respondents)

Ian Furlong, for the appellants

Brendan Haynes and Benjamin Lee, for the respondent,
    Yasmin Jaffer

Heard and released orally: July 18, 2017

On appeal from the judgment of Justice P.W. Sutherland of
    the Superior Court of Justice, dated October 5, 2016.

REASONS FOR DECISION

[1]

The appellant Yasmin Jaffer appeals a summary judgment dismissing her
    claim against herself for statutory vicarious liability as the owner of the
    vehicle involved in an accident in which she suffered personal injury.

[2]

The appellants claim is based on the deemed statutory liability imposed
    by the
Highway Traffic Act,
R.S.O.
    1990, c. H.8
(the Act)
,

s. 192(2) on the owner of the vehicle.

[3]

The appellant was a passenger in the vehicle she owned that was being
    driven with her consent by her daughter at the time of the accident. In
    asserting a claim against herself as the vehicles owner, she relies on a line
    of authority holding that s. 192(2) of the Act confers a statutory right that
    overcomes the common law rule that a person cannot sue him or herself: see
Dionisi
    v. Dionisi
(1983), 42 O.R. (2d) 597.

[4]

In her statement of claim, the appellant pleads that the accident
    occurred in the laneway of a private property parking lot located at 7970
    Kennedy Road, in the Town of Markham, in the Regional Municipality of York (the
    parking lot).

[5]

The motion judge granted summary judgment dismissing the claim on the
    ground that the accident did not occur on a highway as defined in the Act and
    that accordingly s. 192(2) of the Act had no application.

[6]

On this appeal, the appellant seeks to introduce fresh evidence
    indicating that the accident occurred at the Unionville GO Station parking lot
    and that, as the parking lot and the laneway are used by the general public,
    there is a triable issue as to whether the
Act
applies.

[7]

In our view, the motion to admit fresh evidence must be dismissed for
    the following reasons.

[8]

First, it is inconsistent with the position taken by the appellant in her
    statement of claim.

[9]

Second, the evidence clearly could have been available at the time the
    motion for summary judgment was heard. We do not accept the position of the
    appellant that the evidence should be admitted on appeal on the ground that she
    was taken by surprise when this issue was raised on the summary judgment
    motion. The issue arose entirely because of the appellants own pleading and
    the motion judge cannot be faulted for deciding the case on the basis of a
    point that was raised at the motion.

[10]

Finally,
    we note that the appellant did not bring the proposed fresh evidence forward by
    following the prescribed procedure of bringing a motion to adduce fresh
    evidence but rather simply included the affidavits relied on in the Exhibit Book.

[11]

We
    add that given the involvement of the two fully insured defendants, the fact
    that the appellant did attempt to sue herself, and the availability of
    underinsured coverage, it is difficult to see how the appellant would suffer
    any practical prejudice from having the claim against herself dismissed at this
    point.

[12]

Accordingly,
    the appeal is dismissed.

[13]

Costs
    to the respondent fixed in the amount agreed to by the parties, namely $ 7500,
    inclusive of taxes and disbursements.

Robert J. Sharpe
    J.A.

P. Lauwers J.A.

L.B. Roberts
    J.A.


