



COURT OF APPEAL FOR ONTARIO

CITATION: Liu v. The Personal Insurance Company, 2019 ONCA
    104

DATE: 20190212

DOCKET: C64375 & C65014

Doherty, Simmons and
    Pardu JJ.A.

BETWEEN

Ruo Hang Liu

Plaintiff (Respondent)

and

The Personal
    Insurance Company
, Trevor James Middleton
and
Linda-Sue Pearce

Defendants
(
Appellant
/
Respondent
)

and

Nicholas Perry and Shiv
    Kumar

Third Parties

Jeffrey R. LeRoy, for the appellant

Brian Cameron, for the respondent Shayne Berwick,
    plaintiff in actions CV-08-090129-00, CV-09-387093 and CV-13-114389-00

Louis Covens, for the respondent The Personal Insurance
    Company

Luke Hamer, for the respondent Ruo Hang Liu

Heard: January 30, 2019

On appeal from the orders
    of Justice Phillip Sutherland of the Superior Court of Justice, dated July 11,
    2017 and January 12, 2018, with reasons reported at 2017 ONSC 4232, [2017]
    I.L.R. I-5985, and 2018 ONSC 324.

REASONS FOR DECISION

[1]

Ms. Pearce appeals from the motion judges
    refusal to allow her to withdraw an admission made by her during the argument
    of a summary judgment motion. The focus of the summary judgment motion was
    whether the appellant was the actual owner, as well as the registered owner, of
    a Ford truck driven by her son when it was involved in a collision.

[2]

The appellants son, Trevor Middleton, was
    convicted by a jury of criminal negligence causing bodily harm and aggravated
    assault as a result of his actions in deliberately ramming a Honda Civic. There
    were four occupants of the Honda, including the driver Ruo Hang Liu.

[3]

Shayne Berwick, one of the occupants of the
    Honda who was injured in the collision, brought three lawsuits, including one against
    both drivers and the alleged owners of both vehicles. Mr. Liu sued his own
    insurer, The Personal Insurance Company (Personal), claiming relief against
    Personal in the event that the parties legally responsible were uninsured or
    underinsured. The appellant was insured by a policy issued by Wawanesa
    Insurance (Wawanesa).

[4]

The motion judge found that the appellant was
    the actual owner of the Ford truck. The appellant takes no issue with this
    finding. It was agreed at the time of the motion that this conclusion would
    bind the parties in all of the actions. In the course of the argument of the
    motion, all parties, including the appellant, agreed that if the appellant was
    the owner of the truck, Wawanesa would respond to the claim, and that because
    the limits of both the Personal and Wawanesa policies were the same, the action
    against Personal could be dismissed.

[5]

The motion judge accordingly dismissed the
    action against Personal. After his decision was released, the appellant moved
    to withdraw her agreement to the effect that if she were found to be the owner
    of the truck, she would be liable under s. 192(2) of the
Highway
    Traffic Act
, R.S.O. 1990, c. H.8,
for the losses caused by her sons driving.

[6]

In written submissions made to the motion judge,
    the appellants counsel stated,

It was not my intent, thought or wish, as the
    argument revolved around the ownership issue, to concede that the defendant,
    Pearce, will be vicariously liable with her policy with Wawanesa in play if
    Middleton is not found to be driving negligently on September 16, 2007; or, in
    other words, it was not my intent, thought, or wish to concede that the
    defendant, Pearce, will be vicariously liable if Middleton is found to be
    driving with an intent to injure others.

[7]

Subsection 192(2) of the
Highway
    Traffic Act
provides as follows:

The owner of a motor vehicle or street car is liable for loss
    or damage sustained by any person by reason of
negligence
in the
    operation of the motor vehicle or street car on a highway, unless the motor
    vehicle or street car was without the owners consent in the possession of some
    person other than the owner or the owners chauffeur. [Emphasis added.]

[8]

The appellant wished to argue that this section
    made her vicariously liable for the negligent driving of her son, but not for
    intentional assaults using a vehicle. She asked the motion judge for an
    amendment to qualify the dismissal of the action against Personal by adding
    that the dismissal was operative only if she was found vicariously liable
    pursuant to s. 192(2) of the
Highway Traffic Act

because of her sons negligence.

[9]

The motion judge rejected the appellants
    request to withdraw her agreement. He concluded that her sons criminal
    conviction for criminal negligence conclusively established that he was
    negligent, and that the appellant as owner was therefore liable pursuant to s.
    192(2) of the
Highway Traffic Act
.

[10]

In the alternative, the motion judge indicated
    that he would not exercise his discretion to allow the appellant to withdraw
    her admission because no reasonable explanation for the proposed withdrawal
    from the agreement was given, and because the appellant had never pleaded that
    she was not liable for the intentional acts of her son. He noted that she was
    aware of the nature of her sons driving, and concluded that a change in
    strategy and defence position did not qualify as a reasonable explanation that
    would allow her to withdraw her admission.

Arguments on appeal

[11]

The appellant argues that the motion judge erred
    in finding that the criminal conviction for criminal negligence foreclosed an
    argument that her sons acts were intentional and not negligent. She points out
    that her son was also convicted of aggravated assaults because of his driving. The
    torts of negligence and battery are not mirrored perfectly by criminal
    negligence, which requires a marked and substantial departure from the conduct
    expected of a reasonable driver, and aggravated assault, requiring an intention
    to apply force where that application of force results in specified injuries. The
    appellant wishes to argue at trial that s. 192(2) of the
Highway
    Traffic Act
makes her vicariously liable only for
    negligence, not intentional torts.

[12]

Further the appellant argues that the motion
    judge erred by applying a stricter test applicable to the withdrawal of
    admissions in pleadings, rather than a test more appropriate for the withdrawal
    of an admission made in the course of argument.

[13]

The motion judge applied a test drawn from
Antipas
    v. Coroneos

(1988), 26 C.P.C. (2d) 63 (Ont. H.C.) and
Szelazek
    Investments Ltd. v. Orzech

(1996), 44 C.P.C. (3d) 102
    (Ont. C.A.):

(a)
is the admission one of purely fact, law, or mixed fact [and] law?
    A court would be more likely to exercise its discretion if the admission is a
    pure question of law that is incorrect than an admission which is only factual
    or of mixed fact and law;

(b)
does the proposed amendment raise a triable issue in respect to the
    truth of the admission?;

(c)
is there a reasonable explanation for the withdrawal, such as
    inadvertence or wrong instructions?; and,

(d)
has the party wishing to withdraw the admission established that
    the withdrawal will not result in any prejudice that cannot be compensated for
    in costs?

[14]

The appellant submits that the motion judge
    should have applied the test for withdrawal of admissions described in
Serra
    v. Serra
, 2009 ONCA 105, 93 O.R. (3d)
    161,
at para. 114, that an admission of mixed fact
    and law may be withdrawn if, in all the circumstances, there is a triable
    issue that ought to be tried in the interests of justice rather than left to an
    admission of fact. The appellant also relies on
Patterson v. Scherloski
,

[1971] 3 O.R. 753
    (H.C.), at p. 757, where the court stated that [t]he discretion of the Court
    ought to be warily exercised, normally, to defeat fiction, to help establish
    truth, and to relieve clients of fatal mistakes by lawyers.

Analysis

[15]

The appellant does not seek an order from this
    court setting aside the dismissal of the action against Personal. Rather, she
    claims relief potentially limiting only her own liability, as requested in
    paragraphs 62(1)-(3) of her factum:

1.
The appellant, Linda-Sue Pearce, is
    only vicariously liable for the defendant, Trevor James Middletons driving on
    September 16, 2007 if Middleton was driving negligently;

2.
Pearces admission in her submissions
    to Sutherland J. on June 9, 2017 is restricted to the following: Pearce is only
    vicariously liable for Middletons driving on September 16, 2007 if Middleton
    was driving negligently;

3.
Withdrawal of Pearces admission that she is vicariously liable
    without qualification for Middletons driving on September 16, 2007;

[16]

If the appellant were successful in the
    arguments she proposes to make, she would not be vicariously liable, and
    Wawanesa would not be liable to pay the loss. However, Personal would not be
    available to respond to the loss caused by an uninsured or underinsured driver because
    the action has been dismissed against Personal as a result of the appellants
    admission before the motion judge. This amounts to prejudice to other injured
    parties who might wish to have resort to that policy. That prejudice cannot be
    remedied by an order for costs. This and the other factors listed by the motion
    judge are relevant to the inquiry as to whether the interests of justice favour
    allowing a withdrawal of the admission. Under these circumstances, we agree
    that the interests of justice do not require that the appellant be allowed to
    advance her proposed arguments. The appellant should not be permitted to
    withdraw her admission.

[17]

We express no opinion about the viability of the
    appellants argument that s. 192(2) of the
Highway Traffic Act
does not make owners vicariously liable for intentional torts
    committed by a driver.

[18]

Accordingly, the appeal is dismissed, with costs to each of The
    Personal Insurance Company and Shayne Berwick in the agreed sum of $4,000
    inclusive of HST and disbursements, for a total of $8,000.

Doherty
    J.A.

Janet
    Simmons J.A.

G. Pardu
    J.A.


