



COURT OF APPEAL FOR ONTARIO

CITATION: Kampers v. York Fire &
    Casualty Insurance Company, 2019 ONCA 56

DATE: 20190128

DOCKET: C65473

Brown, Paciocco and Zarnett JJ.A.

BETWEEN

Mary Kampers, Sharral Kampers, Bill Kampers and
    Montana Mason by her litigation guardian Mary Kampers

Plaintiffs (Respondents)

and

York Fire & Casualty Insurance Company

Defendant (Appellant)

Todd J. McCarthy and Richard J. Campbell, for the
    appellant

Karl Arvai, for the respondents

Heard: January 18, 2019

On appeal from the order of Justice Marc. A. Garson of
    the Superior Court of Justice, dated May 25, 2018, with reasons reported at 2018
    ONSC 3000, 81 C.C.L.I. (5th) 80.

REASONS FOR DECISION


[1]

The respondent, Mary Kampers, was injured in 2005 in a motor vehicle
    accident in Las Vegas, Nevada. All claims arising from the accident have been
    settled, with the exception of her entitlement against the appellant, York Fire
    & Casualty Insurance Company, to benefits under the OPCF 44R Endorsement in
    her Ontario motor vehicle insurance policy.

[2]

During a June 30, 2016 pre-trial, counsel for the appellant and counsel
    for the respondents expressed agreement before the pre-trial judge that Ontario
    law applies to their dispute. Both counsel signed a
Rules of Civil
    Procedure
, R.R.O. 1990, Reg. 194, r. 50.08(3) certificate confirming their
    understanding of the contents of the pre-trial conference report that recorded:
    The choice of law issue is resolved  Ontario law applies.

[3]

The application of Ontario law would mean that the potential recovery
    for damages would be limited by provisions in the
Insurance Act
,
    R.S.O. 1990, c. I-8. If Nevada law applies those statutory limits would not
    operate.

[4]

The way in which the initial consensus regarding the application of
    Ontario law came about is relevant to this appeal.

[5]

In an August 6, 2015 email, the respondents counsel expressed the view
    that Nevada law applies but asked, if you are of a different view, please
    advise. By letter dated June 13, 2016, the appellants counsel wrote to the respondents
    counsel saying:

I am of the view that Ontario law applies to the assessment of
    damages in this matter and, as such, the threshold and the collateral benefits
    provisions of the Ontario Insurance Act would apply. Section 10 of the OPCF 44
    Endorsement in my view is applicable.

[6]

In fact, the view that the threshold and collateral benefit provisions
    of the Ontario
Insurance Act
would apply is contrary to this courts
    decision in
Chomos v. Economical Mutual Insurance Co.
(2002), 61 O.R.
    (3d) 28 (C.A.). According to
Chomos
, properly interpreted, s. 10 of the OPCF
    44R Endorsement provides that questions of threshold and collateral benefits
    are issues of liability to be governed by the law of the place where the
    accident occurred, in this case, Nevada. In his affidavit explaining his view
    on the applicable choice of law at the time, the appellants counsel explained:
    I happen to believe that Chomos had been wrongly decided.

[7]

After the matter was discussed during the June 30, 2016 pre-trial, the respondents
    counsel, unaware of the
Chomos

decision, agreed with the appellants
    counsels position and signed the r. 50.08(3) pre-trial conference report certificate
    described above.

[8]

Subsequent to the June 30, 2016 pre-trial, the respondents counsel
    learned of the
Chomos

decision. When a second pre-trial was
    held on January 25, 2018 the respondents counsel explained that he was now of
    the view that Nevada law should apply. The pre-trial conference report from the
    second pre-trial records: Contrary to note of Leitch J. in pretrial memo of
    June 30/16, choice of law is
not
resolved (emphasis in original).

[9]

The appellant took the position that the parties had reached a binding litigation
    agreement on June 30, 2016, requiring Ontario law to be used. The respondents disagreed
    and brought a motion to determine the law to be applied. The appellant brought
    a cross-motion seeking a declaration that the choice of law question was resolved
    by binding litigation agreement and that Ontario law is to be used.

[10]

The
    motion judge dismissed the appellants cross-motion and declared that Nevada
    law will apply. These are final decisions that the appellant now appeals.

[11]

Of
    note, the appellant does not take issue before us with the motion judges
    finding that
Chomos

governs this case in the absence of a
    binding choice of law agreement. The appellant argues instead that the motion
    judges decision that the parties did not reach a binding litigation agreement is
    both legally incorrect and reliant upon incorrect principles of law, and
    should be overturned based on a correctness standard. It seeks a declaration
    that, as agreed between the parties, Ontario law applies.

[12]

The
    respondents argue that the motion judges decisions were discretionary and based
    on findings of fact that should not be disturbed. They are entitled to
    deference, absent palpable and overriding errors or an error in principle. They
    urge that no such palpable or overriding errors or errors in principle
    occurred.

[13]

We
    agree with the respondents, and dismissed the appeal at the end of the oral hearing,
    with reasons to follow. These are our reasons.

[14]

The
    motion judges decision that what occurred on June 30, 2016 was not a
    litigation agreement, but rather an admission by the respondents counsel based
    on a misunderstanding of the law attracts deference, and we would not interfere.

[15]

The
    exchange of correspondence relating to the applicable law does not reflect a
    negotiation. The relevant communications do no more than express competing views
    about the applicable law. It was in this context that the motion judge had to
    determine whether it was a litigation agreement or a simple admission that
    occurred when the respondents counsel ultimately agreed, after further
    discussion at the June 30, 2016 pre-trial, that Ontario law applies.

[16]

In
    making that determination, the motion judge concluded, as he was entitled to,
    that the respondents would have had no reason to negotiate for the application
    of Ontario law, since the application of Ontario law would clearly prejudice
    the respondents interests. In reaching this conclusion, the motion judge was
    entitled to reject the appellants argument that the respondents may have
    intended to enter a litigation agreement to obtain the mutual benefit of
    litigation efficiency. The respondents counsel swore that there had been no
    discussions about streamlining the process. The motion judge also noted that the
    manner in which the litigation was being conducted is inconsistent with the
    possibility that the respondents would view potential litigation efficiencies
    achieved by applying Ontario law as creating a net benefit or a reason to agree
    to choose Ontario law. Simply put, the respondents agreement that Ontario law
    applies is consistent with a concession or admission, but not a bargain.

[17]

In
    this context, the evidence of the respondents counsel that he had mistakenly
    acquiesced to the defence position, not being aware of
Chomos
,
    resonated. The motion judge was entitled to accept it. The respondents counsel
    was not intending to enter into a litigation agreement, but rather, simply making
    an admission. That being so, as the motion judge put it using the language of
    commercial contracts, there was no
consensus ad idem

between
    the parties to enter a binding agreement to apply Ontario law.

[18]

The
    fact that the respondents counsel signed the June 30, 2016 pre-trial conference
    report certificate does not prove otherwise. A pre-trial conference report is a
    case management tool. According to the terms of r. 50.08(3), when parties sign
    a pre-trial conference report certificate they are confirming their
    understanding of the report and acknowledging their obligation to be ready to
    proceed. They are not entering into a binding litigation agreement with the
    other party. Were that the case, the respondents could argue that when the appellants
    counsel signed the January 25, 2018 pre-trial conference report certificate he
    was agreeing that the choice of law question has
not
been settled. We
    would not interfere with the motion judges conclusion that what was recorded
    in the r. 50.08 report was an admission, not something the parties separately
    negotiated or reduced to writing themselves.

[19]

In
    all of the circumstances, there was ample basis for the motion judge to come to
    the decision he did.

[20]

Nor
    was the discretionary decision by the motion judge to grant leave to the
    respondents to withdraw their choice of law admission, by analogy to
Rules
    of Civil Procedure
,

r. 51.05, based on any palpable or overriding
    errors or errors in principle. The motion judges findings that (1) the
    admission that Ontario law applies was made through inadvertence, (2) it was
    prejudicial to the respondents, and (3) it is possible to compensate the
    appellant in costs for any prejudice that may arise, are supportable. In these
    circumstances, we would not interfere with the motion judges decision to
    release the respondents from their admission.

[21]

The
    motion judge indicated that even if he was wrong and there was a litigation
    agreement, he would exercise his discretion to permit the respondents to resile
    from that agreement. Given that we would not interfere with the motion judges
    conclusion that there was no litigation agreement, or his decision that the
    respondents should be permitted to withdraw their choice of law admission, we
    need not decide whether this alternative decision was in error.

[22]

The
    appeal is dismissed. The appellant shall pay costs to the respondents in the
    amount of $5,000 inclusive of disbursements and applicable taxes, and inclusive
    of costs in the respondents earlier unsuccessful motion to strike this appeal.

David Brown J.A.

David M. Paciocco J.A.

B. Zarnett J.A.


