



COURT OF APPEAL FOR ONTARIO

CITATION: El-Khodr v. Lackie, 2018 ONCA 66

DATE: 20180125

DOCKET: M48484 (C60918)

Doherty, MacFarland and Rouleau JJ.A.

BETWEEN

Kossay El-Khodr

Plaintiff (Respondent/ Moving Party)

and

Raymond C. Lackie, John MacPhail, ATS Andlauer
    Transportation Services GP Inc. and Trailcon Leasing Inc.

Defendants (Appellants/ Responding Parties)

Joseph Y. Obagi and Elizabeth A. Quigley, for the moving
    party

Barry A. Percival, Q.C. and James W. Gibson, for the responding
    parties

Heard in writing

REASONS FOR DECISION

[1]

By way of a motion in writing, the moving party
    seeks an order:

(i)

withdrawing the reasons for decision in this
    appeal dated September 19, 2017 (reported at 2017 ONCA 716);

(ii)

granting a rehearing of the within
    appeal before the same five-judge panel which has recently been approved to
    hear appeals in
Carroll v. McEwen
(C62293);
Cadieux
    v. Cloutier
(C63160) and
Persad v. Silva
(C62935);

(iii)

in the alternative, a stay of the decision
    rendered in this appeal, pending determination in the appeal in the new trilogy
    of cases to be scheduled before a five-judge panel which has been convened to
    determine issues which are over-lapping in the within appeal; and

(iv)

such further and other relief as this Honourable
    Court may deem just.

[2]

The grounds upon which this motion is brought
    can be summarized as follows:

(i)

This court, in its ruling, effectively over-ruled
Bannon
    v. Hagerman Estate
(1998), 38 O.R. (3d) 659 (C.A.) and
    its progeny without notice to counsel that it intended to do so and where any
    such challenge could only and ought to have been heard by a five-judge panel;

(ii)

This court in its reasons addressed an
    entirely new issue, one not raised by either party, dealing with the trial
    judges treatment of the Ontario Drug Benefit Program and in so doing ignored
    relevant jurisprudence of this court in
Lurtz v. Duchesne
(2005) 194 O.A.C. 119 (Ont. C.A.).

[3]

This motion can be dealt with very briefly.

(1)

This Court did not Overrule
Bannon

[4]

A reading of this courts reasons, in particular
    paras. 55 through 61 thereof, call into question whether
Bannon
remains good law in Ontario, but nowhere in the reasons does this
    court overrule
Bannon
 as the moving partys
    materials suggest. In particular, at para. 72 of the reasons, we noted:

Bannon
may no longer be good law in
    this province; and significant changes have been made to the statutory scheme
    since
Bannon
was decided. I leave these
    questions for another day as I conclude, for the reasons expressed below, that
    the
Gilbert
case can be distinguished on its
    facts.

[5]

As the responding parties note in their factum
    filed on this motion:

The Reasons for Decision were based on new
    insurance legislation which came into force after the decision in
Bannon
    v. McNeely
was decided.
Bannon
was decided under a former statutory regime for the deduction of
    benefits (page 27 Court of Appeal Reasons in
El-Khodr v. Lackie
).

[6]

There simply can be no doubt that the issues of
    deductibility and/or assignment of past and future statutory accident benefits
    payments were front and center in this appeal and in the companion case of
Cobb
    v. Long
, 2017 ONCA 717, that was argued with this appeal.
    Similarly, and as noted in the quotation above, this courts decision in
Gilbert
    v. South
, 2015 ONCA 712, 127 O.R. (3d) 526 was not
    overruled by this decision; it was factually distinguished.

(2)

The Treatment of the Ontario Drug Benefit
    Program was not a new Issue

[7]

The issue of the Ontario Drug Benefit Program
    and its applicability was argued during the appeal. The trial judges treatment
    of the issue was the subject of a ruling made at trial after the point was
    argued before her.

[8]

In this court, the issue was squarely addressed
    by the moving party at paras. 66 through 70 of his factum filed in the appeal,
    and in paras. 32 through 35 of the responding parties factum filed in the
    appeal.

[9]

The issue of whether the liability insurer of
    the responding parties was entitled to an assignment of the moving partys
    entitlement to statutory accident benefits payments in relation to these
    expenses was directly before the court and was the subject of oral argument by
    both parties.

[10]

As noted, at para. 23 of the reasons, the moving
    party is not prejudiced in any way given that the jurys award compensated him
    fully for medical expenses both past and future to which he was entitled and no
    deduction nor any assignment of those benefits was made from the jurys verdict
    for the reasons stated.

[11]

Although we have addressed this motion on its merits, that fact
    should not be taken as any indication that this was a proper motion to be
    brought.  It was not.  The issues raised here, in their essence, were that the
    moving party was treated unfairly because the court decided matters that were
    not raised by the parties and without notice to them.  Such issues are properly
    the subject for a further appeal, and not a motion for reconsideration.  The
    right to reconsideration and/or withdrawal of the courts reasons is a narrow
    one.  It is only in rare circumstances and where it is in the interests of
    justice that a court, having decided a matter, will reconsider:
First Elgin
    Mills Development Inc. v. Romandale Farms Ltd.
, 2015 ONCA 54,
381
    D.L.R. (4th) 114,
at paras. 7 and 8.

[12]

The moving party has, in any event, filed a
    motion for leave to appeal to the Supreme Court of Canada.

[13]

For these reasons the motion is dismissed.

[14]

The responding parties shall have ten days from the release of these
    reasons to file brief submissions on the costs of this motion. The moving party
    shall have ten days thereafter to file brief responding submissions.

Doherty J.A.

J. MacFarland
    J.A.

Paul Rouleau
    J.A.


