



COURT OF APPEAL FOR ONTARIO

CITATION: Caton v. Devecseri Estate, 2014 ONCA 52

DATE: 20140123

DOCKET: C55789

Hoy A.C.J.O., Cronk and Epstein JJ.A.

BETWEEN

Jeremy Caton

Plaintiff (Respondent)

and

Dale Orlando, Litigation Administrator of the
    Estate of Steven Devecseri,
Jeffrey Bradfield
,
    Paul Latanski and Kingsway General Insurance Company

Defendants (Appellant/Respondents)

and

Royal & Sunalliance
    Insurance Company of Canada added pursuant to Section 258(14) of the
Insurance
    Act
, R.S.O., 1990, c.I.8

Statutory Third Party (Respondent)

Todd J. McCarthy and Michael W. Chadwick, for the
    appellant Jeffrey Bradfield

Brigette A. Morrison, for the respondent Kingsway
    General Insurance Company

Raymond A.D. Watt, for the respondent Jeremy Caton

John J. Aikins, for the respondent Royal &
    Sunalliance Insurance Company of Canada

Heard:  January 16, 2014

On appeal from the judgment of Justice B.G. MacDougall of
    the Superior Court of Justice, sitting with a jury, dated June 20, 2012, as
    amended on July 16, 2012.

ENDORSEMENT

[1]

The appellant and the late Steven Devecseri were riding their
    motorcycles together. Devecseri collided, head-on, with the respondent Jeremy
    Catons car. The appellant did not hit Catons car. The trial judge charged the
    jury as to the appellants potential liability as both a joint and a concurrent
    tortfeasor. The jury found the appellant 10% at fault and Devecseri 90% at
    fault for the accident.

[2]

The appellant advances four grounds of appeal:  (1) the trial judge
    erred by telling the jury that his instruction on the but for test of
    causation did not apply to the appellants potential liability as a joint tortfeasor;
    (2)  on the evidence, the trial judge erred by charging the jury on joint
    tortfeasors;  (3)  the trial judges charge was not balanced, and was unfair;
    and (4) the trial judge erred by dismissing, post-verdict,  the appellants
    attempted renewal of his Rule 21.01 motion, which the trial judge had declined
    to deal with on the eve of trial, for a determination whether or not Devecseris
    insurance coverage with the respondent insurer, Royal & Sunalliance
    Insurance Company of Canada (Royal), responded in the circumstances.

[3]

In disposing of this appeal, it is unnecessary for us to address the
    first two grounds of appeal. In our view, based on the answers to the questions
    put to the jury, it is clear that the jury found the appellant liable as a
    concurrent tortfeasor, as well as a joint tortfeasor. The trial judge charged
    the jury on the but for causation test in relation to the appellants
    potential liability as a concurrent tortfeasor,  and the evidence at trial
    supported a charge to the jury on the basis of concurrent liability.  Accordingly,
    the first two alleged errors are of no moment.

[4]

As to the appellants third ground of appeal, in our view, read as a
    whole, the charge was not unbalanced or unfair to the appellant. The trial
    judge carefully summarized the appellants evidence and his position on the
    question of liability. The appellants counsel, like other counsel, was
    actively involved in reviewing and commenting upon the trial judges draft
    charge. The appellants counsel did not object to the trail judges instruction
    on concurrent liability or object on the basis of the overall fairness of the
    charge. This strongly suggests that this experienced counsel saw no overall
    imbalance or unfairness in the charge on the basis now urged before this court.
     At the end of the day, we are satisfied that this jury would have understood
    that it was free to accept or reject any of the liability theories advanced by
    the respondents against the appellant.

[5]

As to his final ground, the appellant does not argue that the trial
    judge erred in refusing to grant him leave to initiate his Rule 21.01 motion on
    the eve of trial; rather, he takes issue with the trial judges dismissal of
    his motion after the trial was completed.  We see no error in the trial judges
    having done so.

[6]

The order adding Royal  Devecseris insurer  as a statutory third
    party to the action provided that the insurance coverage issue would be
    disposed of in a separate action, brought after trial, or as directed by the
    trial judge.

[7]

Rule 21.01 permits a party to move, before a judge, (a) for
the
    determination, before trial
, of a question of law raised by a pleading in
    an action where the determination of the question may dispose of all or part of
    the action, substantially shorten the trial or result in a substantial saving
    of costs (emphasis added). The trial had been completed.  Furthermore, because
    the motion was brought under Rule 21.01, no evidence was admissible on the
    motion without leave of the judge. The trial judge was of the view that the
    motion could not be determined without evidence. In these circumstances, it was
    open to the trial judge to dismiss the appellants Rule 21.01 motion and
    require the coverage issue to be determined in a separate action, as
    contemplated by the order adding Royal as a statutory third party to the
    action.

[8]

We accordingly dismiss this appeal. The respondents Jeremy Caton and
    Kingsway General Insurance Company are entitled to their costs of the appeal in
    the amount of $15,000 each, inclusive of disbursements and HST. The respondent
    Royal is entitled to its costs of the appeal, inclusive of disbursements and
    HST, in the amount of $10,000.

Alexandra
    Hoy A.C.J.O.

E.A.
    Cronk J.A.

Gloria
    Epstein J.A.


