



COURT OF APPEAL FOR ONTARIO

CITATION: Harris v. Ontario (Community Safety &
    Correctional Services), 2017 ONCA 750

DATE: 20170928

DOCKET: C62647

Doherty, LaForme and Miller JJ.A.

BETWEEN

Karl Harris, Mark Dew and Riley Carver Dew, by
    her Litigation Guardian, Kari Harris

Plaintiffs (Respondents)

and

Her Majesty the Queen in
    Right of Ontario
, as represented by the Ministry of Community Safety
    & Correctional Services, Windsor Jail Superintendent Vic Villeneuve, Joe
    Doe, John Doe, Jeff Doe and Jane Doe

Defendants (
Appellant
)

Darrell Kloeze and Ann Christian-Brown, for the
    appellant

Andrew C. Murray, for the respondents

Asha James and Marc Gibson, for the intervener, The
    Urban Alliance on Race Relations

Heard:  September 20, 2017

On appeal from the order of Justice P. Hebner of the Superior
    Court of Justice, dated August 2, 2016, with reasons reported at 2016 ONSC 4641.

REASONS FOR DECISION


[1]

We are satisfied that the question of law posed by the respondents in
    their motion brought under Rule 21.01(1)(a) could not be properly answered on
    the record before the motion judge.  She should have dismissed the motion.

[2]

Rule 21.01(1)(a) provides that a party may move for a:

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.

[3]

The respondents asked the motion judge to answer the following question:

Are claims for recovery of legal expenses incurred in
    connection with the inquest conducted into the death of Jonathan Dew
    potentially recoverable in law as against the defendant, pursuant to s. 61(1)
    of the
Family Law Act
, R.S.O. 1990, c. F.3 (FLA), or are such expenses
    excluded claims, not potentially recoverable at law?

[4]

Section 61(1) gives the named defendants a right to sue for pecuniary
    loss resulting from the death of the family member.

[5]

The motion judges answer as framed in her order reads:

Claims for recovery of legal expenses occurred in connection
    with the inquest conducted into the death of Jonathan Dew are potentially
    recoverable in law as against the defendants, pursuant to subsection 61(1) of
    the
Family Law Act
.

[6]

Rule 21.01 is available only to answer questions of law raised by the
    pleadings.  The pleadings said nothing about a coroners inquest or any legal
    expenses incurred by the respondents in connection with the inquest.  In fact,
    the statement of claim predated the inquest.  The respondents acknowledged that
    they would have to amend their pleadings and the motion judge gave leave for
    the respondents to do so (para. 10).    She, however, decided the Rule 21.01
    motion without any amendment to the pleadings.

[7]

The motion judge could not properly answer the question raised on the
    motion without the actual pleadings said to raise the question of law.  Without
    pleadings to properly identify the legal question and place it in the context
    of the allegations and claims made in the specific case, the response to the
    question posed on the motion was unlikely to significantly advance the
    litigation.

[8]

The motion judges answer proves the point.  In her order, she described
    the legal expenses as potentially recoverable under s. 61(1) of the FLA.  In
    her reasons (at para. 30), the motion judge made it clear that she was not
    addressing any of the issues upon which entitlement to payment of those legal
    expenses would ultimately depend.  She said, I make no determination of any
    other issue, including foreseeability, negligence and quantum.

[9]

The motion judges answer goes no further than to declare that if the
    legal expenses qualified as a pecuniary loss resulting from the death, those expenses
    could be recoverable under s. 61(1) of the FLA.  With respect, that answer
    simply declares that the respondents can recover if they qualify for recovery
    under the terms of s. 61(1).

[10]

The answer provided by the motion judge did not further any of the
    purposes identified in Rule 21.01(1)(a).  It did not dispose of any part of the
    action, shorten the trial, or result in any substantial saving of costs.

[11]

This court has considered the principles governing the interpretation of
    s. 61(1) of the FLA in
Macartney v. Warner
, [2000] O.J. No. 30.  The
    application of those principles to the respondents claim for legal expenses arising
    from the coroners inquest raises potentially difficult issues.  Those issues
    are best resolved on a full record.

[12]

The appeal is allowed and the order of the motion judge is set aside. 
    The respondents are free to amend their statement of claim and advance their
    claim for legal expenses under s. 61(1) of the FLA.  It will be for the trial
    judge to determine the merits of that claim.

[13]

The respondents are entitled to costs on the motion and on the appeal. 
    We fix the former at $3,692.28 (the amount awarded to the respondents by the
    motion judge).  We fix the costs of the appeal at $5,000, inclusive of
    disbursements and taxes.  No costs for or against the intervener.

Doherty J.A.

H.S. LaForme J.A.

B.W. Miller J.A.


