



COURT OF APPEAL FOR ONTARIO

CITATION: Peters Estate v. Desjardin Securite Financiere,
    2016 ONCA 282

DATE: 20160420

DOCKET: C61175

Laskin, Hourigan and Brown JJ.A.

BETWEEN

Chanderdai
    Peters, Executrix and Trustee of the Estate of Isaac Peters

Plaintiff

(Appellant)

and

Desjardin Securite
    Financiere, Compagnie DAssurance Vie / Desjardins Financial Security Life
    Assurance Company and METRO ONTARIO INC.

Defendant

(Respondent)

James Jagtoo and Frances Jagtoo for the appellant

Rebecca Gosevitz for the respondent

Heard:  April 14, 2016

On appeal from the judgment of Justice Laurence A.
    Pattillo of the Superior Court of Justice, dated September 23, 2015.

ENDORSEMENT

[1]

Chanderdai Peters, in her capacity as Executrix and Trustee of the
    Estate of her son, Isaac Peters, appeals the decision of the motion judge
    granting summary judgment dismissing her action.

[2]

On December 12, 2012, Mr. Peters died as a result of injuries caused by
    a fall from the balcony of his twelfth floor apartment. The appellant commenced
    an action claiming payment of an accidental death benefit pursuant to a group
    policy (the Policy) issued by the respondent Desjardins Financial Security
    Life Assurance Company (Desjardins) to Metro Ontario Inc. (Metro).

[3]

It was not disputed that Mr. Peters was an employee of a wholly owned
    subsidiary of Metro at the time of his death and that he was covered by the Policy.
    However, Desjardins brought a motion for summary judgment to dismiss the action
    on the basis that the appellant could not meet her burden of establishing that
    the death was caused by accident. In the alternative, Desjardins relied on the
    suicide exclusion in the Policy.

[4]

Applying the roadmap for summary judgments drawn in
Hryniak v.
    Mauldin
, 2014 SCC 7, at para. 66, the motion judge first reviewed the
    record without using the new fact-finding powers and found that there was a
    genuine issue requiring a trial on the issue whether the appellant had
    established on a balance of probabilities that Mr. Peters died accidently. He
    concluded that there was evidence to support both that Mr. Peters died
    accidently and that he died by suicide. However, the motion judge was of the
    view that the need for a trial could be obviated by resorting to the powers
    listed in r. 20.04(2.1) of the
Rules of Civil Procedure
, R.R.O. 1990,
    Reg.194.

[5]

After reviewing the evidence in detail, the motion judge found that the
    appellant could not meet her onus of establishing on a balance of probabilities
    that her sons death was an accident. Accordingly, he granted summary judgment
    dismissing her claim.

[6]

The appellant does not dispute that it was open to the motion judge to
    determine the case on a motion for summary judgment. Her criticism is that the motion
    judge, having embarked on the use of his powers under r. 20.04(2.1), failed to
    adequately consider and assess the evidence that supported a conclusion that
    the death was caused by accident. She further submits that there were
    credibility issues in the evidence that the motion judge did not address.

[7]

We disagree. There were no significant credibility issues on the
    evidence. What were at issue were the inferences to be drawn from the evidence.
    In our view, the motion judge carefully considered the evidence and drew
    inferences that were available to him. It was not incumbent on the motion judge
    to advert to every piece of evidence that might support a conclusion that the
    death was accidental.

[8]

The motion judge was aware of the appellants position that the
    conclusions and opinions reflected in reports prepared by the police officers
    involved in the case and the Coroners office raised credibility issues.  In
    his endorsement, the motion judge stated that he would not consider those conclusions
    and opinions in his analysis.

[9]

In these circumstances, there is no basis to interfere with the motion
    judges conclusion that the appellant did not meet her onus.

[10]

The appellant raises the additional issue of the dismissal of her action
    against Metro. She submits that the motion judge erred in dismissing the action
    against Metro, given that Metro did not participate in the motion and that the
    claim against it is based on alleged misrepresentations contained in a booklet
    produced by Metro explaining the Policy. We agree. The nature of the claim
    against Metro is different from the contractual claim asserted against
    Desjardins and it was not open to the motion judge to dismiss the action
    against it.

[11]

The appeal is dismissed, except to the extent that the dismissal of the
    action against Metro is set aside. As agreed between the parties, Desjardins,
    as the successful party, is entitled to its costs of the appeal, fixed at
    $9,500 inclusive of fees, disbursements, and applicable taxes.

John
    Laskin J.A.

C.W.
    Hourigan J.A.

David
    Brown J.A.


