



COURT OF APPEAL
    FOR ONTARIO

CITATION: Abarca v. Vargas, 2015 ONCA 4

DATE: 20150107

DOCKET: C57916

Laskin, Rouleau and Lauwers JJ.A.

BETWEEN

Teodoro
    Abarca, Magaly Abarca,

Jorge Leiva by his Trustee in Bankruptcy, Mathew &
    Associates Ltd.,

Maria Leiva by her Trustee in Bankruptcy, Mathew &
    Associates Ltd.
,

and
    Brunilda Munoz

Plaintiffs (Appellants)

and

Sandra
    Vargas, The Wawanesa Mutual Insurance Company and

Economical Mutual Insurance Company

Defendants (Respondent)

and

The Wawanesa Mutual Insurance Company, added by order
    pursuant to

s. 258(14) of the
Insurance Act
, R.S.O. 1990, c. I.8

Third Party

William G. Scott, for the appellants

George Kanellakos and Kevin Lasko, for the respondent

Heard: April 28, 2014

On appeal from the order of Justice Wendy M. Matheson of
    the Superior Court of Justice, dated October 18, 2013, with reasons reported at
    2013 ONSC 6499.

Lauwers J.A.:

[1]

Jorge Leiva and Maria
    Leiva were passengers in Teodoro Abarcas car when it collided with the car operated
    by Sandra Vargas. Ms. Vargas is insured by Wawanesa Mutual Insurance Company,
    but in the circumstances she is potentially underinsured. The Leivas insurer
    for the purpose of underinsured automobile coverage is Economical Mutual
    Insurance Company.

[2]

The motion judge
    ordered that para. 12 of the Leivas statement of claim, in which they claimed
    underinsured automobile coverage from Economical Mutual, be struck out. The
    effect of doing so was to potentially deprive the Leivas of up to $800,000 in insurance
    coverage, which is the difference between the limited proceeds of $200,000 that
    the Leivas might be able to access from Wawanesa and the underinsured automobile
    coverage of $1,000,000 they purchased from Economical Mutual.

[3]

The motion judge concluded
    this was the appropriate consequence for what she found to be an abuse of
    process committed by the Leivas lawyer.

[4]

For the reasons set out
    below, I would allow the Leivas appeal. The unreasonable result of the motion
    judges order, which risked the elimination of the Leivas underinsured automobile
    coverage, is disproportionate to the abuse of process that it seeks to punish. Further,
    the decision is not consistent with the principles by which the
Rules of
    Civil Procedure
, R.R.O. 1990, Reg. 194 (ROCP), are to be interpreted and
    applied, or with the principles underpinning motor vehicle accident insurance
    law.

[5]

Since the fresh
    evidence application establishes that the Leivas released all claims to
    statutory accident benefits (SABs) from Economical Mutual, I would dismiss as
    moot the appeal from the motion judges decision striking the paragraphs of the
    statement of claim related to SABs.

A.

Background Facts

[6]

The accident happened
    in the Town of Innisfil on August 26, 2007. The allegation is that Ms. Vargas
    ran a red light at a high rate of speed and collided with Mr. Abarcas car. The
    Leivas and the other plaintiffs, Magaly Abarca and Brunilda Munoz, were Mr.
    Abarcas passengers.

[7]

The coverage limit under
    Ms. Vargas policy with Wawanesa is $1,000,000. Wawanesa took an off-coverage
    position against Ms. Vargas on the basis that her licence was suspended when the
    accident occurred. If Wawanesas off-coverage position is sustained at trial,
    its insurance payment on Ms. Vargas behalf will be limited to the statutory
    minimum limit for automobile liability insurance of $200,000. This payment
    would be allocated to the various claimants on a
pro rata
basis.

[8]

The Leivas insurance
    policy with Economical Mutual includes underinsured automobile coverage in the
    form of the OPCF 44R Family Protection Coverage Endorsement, which obliges
    Economical Mutual to respond if the defendant, Ms. Vargas, is underinsured. In
    the circumstances of this case, Economical Mutuals obligation is only
    triggered if Wawanesas off-coverage position is ultimately determined to be valid
    and the various claims against Ms. Vargas exceed $200,000.

B.

Procedural History

[9]

The Leivas counsel
    started a tort action against the responsible driver, Ms. Vargas,
[1]
on behalf of the Abarcas and the Leivas in Newmarket, which is the judicial
    district where the accident took place.

[10]

When
    Wawanesa took an off-coverage position with respect to Ms. Vargas, it had
    itself added to the Newmarket action as a statutory third party under s.
    258(14) of the
Insurance Act
, R.S.O. 1990, c. I.8.

[11]

In
    September 2010 the Leivas counsel brought a motion in writing, without notice,
    for a court order granting leave to amend the Statement of Claim by adding
    Wawanesa Mutual Insurance Company and Economical Insurance Group as party
    defendants. This would allow the Leivas to access the underinsured automobile coverage
    from Economical Mutual, if necessary. The potential application of the
Limitations
    Act, 2002
, S.O. 2002, c. 24, Sched. B, to bar the claim against Economical
    Mutual was in issue because the accident had occurred in August 2007. In the
    notice of motion, counsel therefore asserted that he relied on the Discoverability
    Rule as my office only learned of the defendant, Vargas licence suspension on
    March 22, 2010.

[12]

The
    motion came before Quinlan J. on October 1, 2010 as a basket motion, to be
    handled in writing in chambers along with other administrative orders, consent
    orders, and so on. She refused the Leivas motion, stating in her endorsement
    that the statutory limitation period, subject to discoverability, has expired.
    This motion is to be brought in open Court on notice to the parties and
    proposed [defendants].

[13]

Counsel
    did not pursue the motion in the Newmarket action on notice to Wawanesa and
    Economical Mutual, despite Quinlan J.s direction. Instead, he started a new
    action in Toronto on May 9, 2011. The Toronto statement of claim largely
    duplicated the Newmarket pleading, but added three parties: Brunilda Munoz,
    another passenger in the Abarca car, as a plaintiff; Wawanesa, as the defendant
    responsible for the Abarcas underinsured automobile coverage; and Economical
    Mutual, as the defendant responsible for the Leivas underinsured automobile coverage.

[14]

After
    some skirmishing, Economical Mutual brought the motion that is the subject of
    this appeal. The other defendants named in the Toronto action did not join Economical
    Mutuals motion.

C.

The Decision under Appeal

[15]

The
    motion judge found that it was an abuse of process for the Leivas to start a
    separate action in Toronto against Economical Mutual instead of bringing a
    motion on notice to add it as a defendant in the Newmarket action. She struck out
    the Leivas claim against Economical Mutual for underinsured automobile coverage,
    taking the view that this courts decision in
Maynes v. Allen-Vanguard
    Technologies Inc
., 2011 ONCA 125, was the ruling precedent.

[16]

Since
    Economical Mutual was the only defendant that moved for relief against the
    Toronto action, the motion judges decision left two lawsuits pending related
    to the car accident: one in Newmarket and the other in Toronto. In due course
    the Superior Court will be required to determine the place of the trial at the
    instance of one of the parties.

[17]

The
    most significant result of the motion judges order, from the Leivas
    perspective, is the potential loss of their OPCF 44R underinsured automobile coverage
    from Economical Mutual by the operation of the limitation period.

D.

The Positions of the Parties

[18]

The
    Leivas argue that it was not an abuse of process for them to start the Toronto
    action against Economical Mutual as their insurer for the purpose of
    underinsured automobile coverage. In their view, doing so was a legitimate
    alternative to moving on notice to add Economical Mutual to the Newmarket
    action. Even if starting the Toronto action was technically an abuse of process,
    they argue that the motion judge did not pay due regard to the principles
    underlying the ROCP, and that the order to strike was a disproportionate
    punishment. The Leivas concede the fresh evidence shows they settled their SABs
    claim.

[19]

Economical
    Mutual argues the Leivas should have brought a motion on notice to add it as a
    defendant in the Newmarket action under rule 26.02(c) of the ROCP, as directed
    by Quinlan J. Economical Mutuals position is that the appellants improperly
    circumvented this rule by starting the Toronto action, and deprived it of the
    advantage of the onus under rule 26.02(c), which requires the moving party to persuade
    the court that adding the new party is necessary. Economical Mutual submits
    that the motion judge properly struck out the Leivas claim against it as an
    abuse of process, consistent with this courts decision in
Maynes
.

E.

Analysis

[20]

I agree with the motion judge that the Leivas abused the
    courts process by disregarding Quinlan J.s direction to bring the motion on
    notice in the Newmarket action, but I do not agree that starting a new action was
    necessarily abusive, as I explain below. More importantly, the motion judges decision
    left the Leivas to pursue adding Economical Mutual to the Newmarket action, which
    put them at risk of losing their underinsured automobile coverage by operation
    of the limitation period. This result was not, in my opinion, consistent with
    the principles by which the ROCP are to be interpreted and applied, nor with
    the principles underpinning motor vehicle accident insurance law.  Further,
    this result was not compelled by this courts decision in
Maynes
.

I
    consider each of these points in turn.

(1)

Failing to Follow Quinlan J.s Direction was an Abuse of the
    Courts Process

[21]

Case law offers many examples of the various ways parties can
    abuse the courts process. The cases commonly involve the use of the courts
    process in a way that would be manifestly unfair to a party to the litigation
    before it or would in some other way bring the administration of justice into
    disrepute. (
Behn v. Moulton Contracting Ltd
.
, 2013 SCC 26, [2013]
    2 S.C.R. 227, at para. 40, quoting Goudge J.A., in dissent

in
Canam
    Enterprises Inc. v. Coles
(2000), 51 O.R. (3d) 481 (C.A.), at para. 55) The
    motion judge, quite fairly in my view, took umbrage at what she considered to
    be counsels cavalier and recalcitrant attitude, which extended to his
    explanation for his actions. (Paras. 2(e), 8) She did not err in finding that the
    Leivas had abused the courts process by failing to follow the direction set by
    Quinlan J.

(2)

Starting the New Action was not an Abuse of the Courts Process

[22]

However,
    the motion judge erred in finding that, absent the direction by Quinlan J., it
    was an abuse of process for the Leivas to start a new lawsuit against
    Economical Mutual in relation to the underinsured automobile coverage issue,
    for the reasons that follow.

[23]

Automobile
    accident claims can be quite complex. Factual complexities, legal complexities,
    and procedural complexities all interrelate. These inherent complexities make
    automobile accident lawsuits a case management task for the trial courts. They
    must corral the lawsuits and the lawyers, set a common venue, and marshal into
    logical order the pre-trial steps in order to get the related cases to trial in
    the manner that best responds to the circumstances, the fair application of s.
    138 of the
Courts of Justice Act
,

R.S.O. 1990, c. C.43 (
CJA
)
,
and the joinder rules.

[24]

In
    cases involving two or more motor vehicles, the factual complexities can
    accumulate quickly. There are different parties and can be different insurers, all
    of whom have a legitimate stake, and who are represented by different lawyers.
    This often leads to multiple lawsuits about the same set of occurrences. In
    many cases the full range of potential claims is not entirely clear at the
    outset and almost invariably evolves. The evolution of the Leivas claims
    against the various defendants in both the Newmarket and Toronto actions is not
    unusual.

[25]

The
    legal complexities stem from the intersection of tort law, contract law, and
    insurance law, which can also lead to multiple lawsuits. The procedural
    complexities build on the factual and legal complexities. While the tort claim
    frequently takes pride of place, the public policy considerations and the
    different procedural paths for obtaining SABs also play a role. This leads to
    lawsuits and claims procedures that are related but can be out of sequence.

[26]

Because
    the parties are obliged to mediate SABs claims before bringing an action, the
    timing of any Financial Services Commission of Ontario dispute resolution
    process from the beginning to the end can be completely out of sync with the
    tort action. Consequently, it is impractical and unnecessary, from the timing
    standpoint, for the court to insist that any lawsuit over SABs must always be
    joined with the related tort action. To the extent that the motion judges
    decision implies such mandatory joinder, it is incorrect.

[27]

In
    view of the fairly advanced state of progress of the Newmarket action, in my
    opinion it would have been appropriate, and therefore not abusive, for the
    Leivas to start a new lawsuit against Economical Mutual alone in relation to
    the underinsured automobile coverage issue.

(3)

The Penalty is Disproportionately Prejudicial to the Appellants

[28]

I
    agree with the motion judge that, having concluded the Leivas committed an
    abuse of process, her next task was to determine the appropriate remedy. The
    abuse of process to be sanctioned was the Leivas failure to follow the
    direction of Quinlan J.

[29]

There
    is no law supporting the conclusion that an abuse of process must lead
    inevitably to the dismissal of the associated claim. In each case the court
    must assess the gravity of the abuse in determining the severity of its
    response, bearing in mind the principle of proportionality. This approach is
    not surprising, since instances of abuse of process fall across the spectrum
    from egregiously contemptuous conduct to relatively minor breaches of
    procedural rules. In view of my finding that starting an action against
    Economical Mutual was not abusive, I would place the Leivas disregard of
    Quinlan J.s direction towards the minor end of this spectrum.

[30]

In
    considering how it will respond to an abuse of its process, the court should
    take into account the entire litigation context of the matter in issue. With
    respect, the motion judge failed to do so in this case.  The abuse at issue in
    this case was minor. The motion judge made an error in principle by failing to
    fully consider and balance the parties competing interests in light of the
    degree of that abuse.

(i)

The Full Litigation Context

[31]

The
    underlying motion in this case had special saliency because of Economical
    Mutuals possible limitation defence. This issue was raised by the Leivas
    counsel and noted by the motion judge, at para. 17, but she appears to have disregarded
    it in crafting the remedy.

[32]

Some
    of the steam may have gone out of this issue with the release of this courts
    decision in
Schmitz (Litigation guardian of) v. Lombard General Insurance
    Co. of Canada
, 2014 ONCA 88, 118 O.R. (3d) 694, at para. 20, where it was
    determined that the applicable limitation period only starts to run the day
    after a demand for indemnity is made. I note that the precise application of
Schmitz
to the facts in this case was not fully argued by the parties, and counsel
    asserts that some uncertainty remains.

[33]

The
    impact of a limitation defence on the plaintiff is one of the burdens to be
    balanced by the court in considering how it should respond to an abuse of
    process. In my view, the motion judge did not give due consideration to this
    factor in striking the Leivas claim for underinsured automobile coverage.


(ii)

The Penalty is not Consistent with the Principles of the ROCP

[34]

The
    general objectives of the ROCP reflect a balancing approach, as this court
    explained in
1196158 Ontario Inc. v. 6274013 Canada Ltd
.
, 2012
    ONCA 544, 112 O.R. (3d) 67. This court has taken a similar balancing approach
    to the application of s. 138 of the
CJA
, which provides that the
    multiplicity of legal proceedings should be avoided. While the provisions of
    the ROCP related to joinder, consolidation, and pleading amendments (Rules 5,
    6, and 26) reflect a preference for minimizing the number of proceedings
    related to a particular claim, this court has not interpreted s. 138 of the
CJA

as inevitably requiring dismissal of an action where a party has not
    complied rigorously with the section. See
Taylor Made Advertising Ltd. v.
    Atlific Inc
.
, 2012 ONCA 459, 111 O.R. (3d) 221, at para.36.

[35]

In
    striking the Leivas claim against Economical Mutual, the motion judge failed
    to balance the technical procedural requirements of the ROCP and the
CJA
in the interests of justice.

(iii)

The Penalty is not Consistent with Insurance Law Principles

[36]

In
    seeking to balance the respective interests of the parties in the circumstances,
    the court must advert to the interests at stake in the underlying action  in
    this case, to insurance principles. In my view, the motion judge failed to give
    due consideration to this requirement. Automobile insurance is well understood
    to be a form of consumer protection. The Supreme Court of Canada has endorsed
    the observation of Professor Craig Brown that "[i]n one way or another,
    much of insurance law has as an objective the protection of customers." (
Smith
    v. Co-Operators General Insurance Co
.
, 2002 SCC 30, [2002] 2 S.C.R.
    129, at para. 11)

[37]

Automobile
    insurance policies are, consequently, more than mere commercial contracts. The
    entire regulatory structure of automobile insurance has become part of the
    social contract, and forms part of an integral social safety net that attempts
    to balance economic feasibility with sound risk management principles for not
    just drivers and partner insurers, but anyone injured by an automobile
    accident. (Erik Knutsen, Auto Insurance as Social Contract (2010-2011) 48
    Alta. L.R. 715 at 716-17, 739)

[38]

The
    automobile insurance system has recognized that some drivers will inevitably be
    uninsured or underinsured, and that this risk too must be accommodated. Underinsured
    automobile coverage began in Ontario in 1981 in an effort to provide financial
    relief for insureds and their families from the hardships and inequities of any
    shortfalls in insurance compensation, (
Despotopoulos v. Jackson
, [1992]
    I.L.R. 1645 (Gen. Div.), at para. 8, affd
sub nom Romas v. Prudential
    Insurance Co. of Canada
, [1996] O.J. No. 4185 (C.A.)). This court further
    explained the purpose of this type of coverage in
Beausoleil v. Canadian
    General Insurance Co
.
(1992), 8 O.R. (3d) 754 (C.A.):

The responsible citizen insures himself for
    the amount he considers adequate and expects other motorists to do the same. He
    obtains the special endorsement (and pays the additional premium) to insure
    himself against the eventuality of an injury caused by an irresponsible
    motorist who has not so conducted himself.
(Para. 9)

[39]

Unlike
    uninsured automobile coverage, which is a statutory entitlement, underinsured
    automobile coverage is created by contract between the insurer and the insured.
    The OPCF 44R endorsement provides a back-up source of liability coverage, and entitles
    the injured policyholder to claim against his or her own insurer for the
    compensatory damages he or she is "legally entitled to recover" from
    the inadequately insured, at-fault driver (
Chomos v. Economical Mutual
    Insurance Co
.
(2002), 61 O.R. (3d) 28 (C.A.), at para. 22).

[40]

By
    buying underinsured automobile coverage from Economical Mutual, the Leivas were
    behaving as responsible motorists seeking to protect themselves and others. The
    corollary of the insurance principles at issue, particularly the objective of
    consumer protection, is that the Leivas should only be deprived of this
    coverage for the very gravest of reasons.

(4)

Conclusions on Balancing the Interests of the Parties

[41]

While
    I agree with the motion judge that, by evading the direction in Quinlan J.s
    endorsement, the Leivas abused the courts process, the motion judge erred in
    principle by failing to fully consider and balance the competing interests of
    the parties before striking the claim against Economical Mutual. With respect,
    the Leivas minor abuse of process does not justify the potential loss of
    underinsured coverage.

[42]

The
    potential loss of this coverage by operation of the limitation period could be
    catastrophic for the Leivas. By contrast, aside from the legal fees associated
    with the two proceedings, which could be compensated by a costs award, there is
    no real prejudice to Economical Mutual in being obliged to provide the
    underinsured insurance coverage for which the Leivas paid.

[43]

As
    the Supreme Court observed in
Sommersall v. Friedman
,
2002 SCC
    59, [2002] 3 S.C.R. 109, at para. 74, the court leans away from a result that
    would grant the insurer a windfall in escaping its presumed obligations while
    depriving the insured of the amount she would have expected to have been paid
    to her in the normal course of business.

[44]

The
    principles by which the ROCP are to be interpreted and applied and the
    principles underlying automobile accident insurance law suggest that the
    Leivas potential loss of underinsured automobile coverage is disproportionate
    to the minor abuse of process. The balance plainly favours the Leivas, not
    Economical Mutual, and the motion judge erred in failing to take this into
    account.

[45]

In
    my view, cost consequences would strike the appropriate balance in the
    circumstances.

(5)

Maynes
is Not the Ruling Precedent

[46]

The
    motion judge concluded that, in principle, this courts decision in
Maynes
was on all fours with the motion before her. With respect, I disagree.

[47]

In
Maynes
, the plaintiffs were senior executives of Med-Eng Systems Inc.
    They acquired shares in Med-Eng through the companys stock option plan.
    Med-Eng was entitled under certain circumstances to repurchase these shares.
    When Med-Eng exercised the share repurchase option, the plaintiffs claimed that
    the repurchases were invalid. Mr. Maynes and Mr. Robichaud collectively started
    an action against Med-Eng and its directors in 2006, while Mr. Gingrich did so
    in 2007, seeking declaratory relief and an order directing Med-Eng to
    repurchase their shares at a price equal to fair market value.

[48]

Later
    in 2007 Med-Eng was the subject of a successful takeover bid by Allen-Vanguard
    Corporation (AVC). AVC offered to purchase the outstanding shares of certain
    Med-Eng shareholders holding a combined interest of 70 per cent of Med-Engs
    stock (the Offeree Shareholders). The Offeree Shareholders accepted and
    compelled the minority shareholders to sell their shares to AVC.

[49]

AVC
    then merged Med-Eng with one of its subsidiaries to form Allen-Vanguard
    Technologies Inc. An escrow fund was also established, to which AVC would have
    recourse if Med-Engs representations or the representations of the Offeree
    Shareholders were incorrect. Otherwise, the escrow fund would be released to
    the Med-Eng shareholders who tendered their shares to AVC.

[50]

After
    the close of pleadings in the original actions, the plaintiffs sought to combine
    their two actions and to add the Offeree Shareholders, AVC and the escrow agent
    as defendants. The prospective defendants refused to consent to being added.
    Instead of bringing a motion to add them with leave of the court under rule 26.02(c)
    of the ROCP, the plaintiffs started a new action against both the original and some
    additional defendants. This court affirmed the motion judges decision that the
    new action constituted an abuse of process, and upheld the decision to strike
    both the plaintiffs' statement of claim in the new action and the plaintiffs'
    cross-motion seeking to join the new claim to the pre-existing actions.

[51]

At
    paras. 36-46 of this courts decision, Weiler J.A. discussed the law relating
    to abuse of process. She found, at para. 46, that issuing the new statement of
    claim was an abuse of process because it duplicates claims in the two Ongoing
    Actions with respect to the Original Defendants and undermines the integrity of
    the administration of justice by circumventing rule 26.02(c) with respect to the
    Added Defendants.

[52]

There
    are a number of distinguishing features that, in my view, render
Maynes
an inapt decision to apply to this case. First, the Leivas seek relief from
    Economical Mutual that is distinct from the relief claimed against the other
    defendants. They assert a claim against Economical Mutual for underinsured automobile
    coverage, which they cannot assert against any of the original defendants. This
    was not the case in
Maynes
, where five of the six claims asserted in
    the plaintiffs new action were virtually identical to the original claims,
    and the sixth claim was for declaratory relief alone. With respect to the new
    claim in
Maynes
for declaratory relief, this court relied on the
    principle that a court should refuse to grant a declaration when other remedies
    are available. This court also concluded that the sixth claim disclosed no
    reasonable cause of action. Here, the claim against Economical Mutual is not
    for declaratory relief alone, and there is no suggestion that the claim fails
    to disclose a reasonable cause of action.

[53]

Second,
    the Toronto action involved a claim against Economical Mutual, which was not
    named as a defendant in the original Newmarket action. The Leivas point out
    that the claim against Economical Mutual had not even been discovered at the
    time the Newmarket action was commenced. By contrast, at para. 28 in
Maynes
,
    this court noted the motion judges finding that key representatives of the
    new defendants were already involved in the original actions. Further,
    Med-Engs successor corporation remained a defendant in the original action. In
Maynes
the new defendants were not so new at all  a fact that is
    not present in the appeal before the court.

[54]

Third,
    there is a real possibility that the claim against Economical Mutual would be
    out of time if it were necessary to add it to the Newmarket action, a factor
    that I have found to be relevant to the motion judges selection of a
    proportional remedy for the abuse of process in failing to follow the direction
    of Quinlan J. A limitations argument was also made in
Maynes
 the
    plaintiffs justified commencing a new action on the basis that a potential
    limitation period was approaching (para. 30). But in
Maynes
, the
    significance of this fact would have been minimal given the courts conclusion
    that the sole new claim disclosed no reasonable cause of action. Moreover,
    there was no apparent risk that the plaintiffs in
Maynes
would not be
    able to recover from the original defendants if the new claim was struck. In
    contrast, the risk that the Leivas will experience a shortfall in insurance
    coverage  the precise risk that they paid premiums to Economical Mutual to
    avoid  is very real.


[55]

I
    do not quarrel in the slightest with the legal principles discussed in
Maynes
,
    but they do not compel the result reached by the motion judge.

F.

Disposition

[56]

I
    would allow the appeal and set aside paragraph one of the motion judges order.
    This will leave the two actions in place. The parties will eventually have to determine
    the location of the trial, which will then affect the case management process.

[57]

The
    parties submitted that the costs for the appeal should be $9,000 in total for
    the victor, with the motion costs of $6,700 following the result in this court.

[58]

In
    my view, as a form of penalty for the Leivas abuse of process, they should not
    recover the costs of the motion in the court below. I would therefore decline
    to set aside paragraph two of the motion judges order. For the same reason, I
    would not award the Leivas the costs of this appeal.

Released: January 7, 2015 JL

P.
    Lauwers J.A.

I
    agree John Laskin J.A.

I
    agree Paul Rouleau J.A.





[1]
The Manufacturers Life Insurance Company was also named as a defendant because
    Jorge Leiva had filed a claim for long-term disability benefits under a policy
    that does not appear to be related to any motor vehicle. It plays no role in
    this decision.


