



COURT OF APPEAL FOR ONTARIO

CITATION:
Nasir v. Kochmanski, 2012 ONCA 758

DATE: 20121107

DOCKET: C55471

Simmons, Armstrong and Watt JJ.A.

BETWEEN

Ibrahim Nasir, a minor, by his litigation
    guardian Tahir Nasir and Tahir Nasir, personally

Plaintiffs/Respondents

and

Aggie Kochmanski

Defendant/Appellant

and

Ume Rabab

Third Party/Respondent

Karim N. Hirani and Tracey Hamilton, for the appellant

Hassan Fancy, for the respondents

Heard and released orally: November 1, 2012

On appeal from the order of Justice Fletcher Dawson of
    the Superior Court of Justice, dated April 5, 2012.

ENDORSEMENT

[1]

In this proceeding the infant plaintiff sues the appellant for damages
    arising from a motor vehicle accident. The infant plaintiff alleges that the
    appellant was the driver of the motor vehicle that struck him.

[2]

The motion judge, Dawson J., struck out the appellants third party
    claim against the infant plaintiffs mother. He found that it had already been
    determined on another motion in the proceeding decided by Hill J. that the infant
    plaintiffs claim against the defendant is limited to those damages
    attributable to the defendants proportionate degree of negligence in
    accordance with
Taylor v. Canada

(Minister of Health)
, [2009]
    95 O.R. (3d) 561 (C.A.).

[3]

In the other motion, Hill J. refused the appellants request for leave
    to issue third party claims against the infant plaintiffs grandmother and
    uncle. The primary basis for this decision was that the limitation period
    applicable to the third party claims had expired. However, Hill J. also
    observed that the limited nature of the appellants exposure in the main action
    was an additional basis for refusing leave.

[4]

We do not read the statement of claim as pleaded as being limited to the
    defendants proportionate degree of fault. Rather, we read Hill J.s
    observations as being premised on the position taken by the infant plaintiffs
    counsel on the motion.

[5]

The appellant has appealed Dawson J.s order out of an abundance of
    caution because the formal order of Dawson J. does not refer to the limited
    nature of the infant plaintiffs claims and the appellants counsel does not
    read the statement of claim as being so limited.

[6]

In response to our inquiry today, the infant plaintiffs counsel
    acknowledges that the order of Dawson J. may be amended to refer to the
    restricted nature of the plaintiffs claim. As we have said, while we do not
    read the statement of claim as being so limited, in light of counsels
    acknowledgement, para. 1 of the formal order of Dawson J. is amended to read as
    follows:

1.   This
    court orders that the defendants third party claim as against Ume Rabab is
    hereby struck because the plaintiff limits his claim against the defendant to
    those damages that would be apportioned to the defendant in accordance with the
    relative degree of fault that is attributable to the defendants negligence. It
    will be open to the court at trial to apportion fault to other parties, if
    deemed appropriate, even though those parties are not joined as parties to the
    action.

[7]

The appeal is otherwise dismissed.

[8]

The proceedings before us and before the motion judge were entirely
    unnecessary. There will be no order as to costs of the appeal or of the motion
    to extend time to perfect. The orders of Dawson J. as to costs of the motion
    and the third party proceeding are set aside and replaced with orders for no
    costs.

Janet Simmons J.A.

Robert
    P. Armstrong J.A.

David
    Watt J.A.


