



COURT OF APPEAL FOR ONTARIO

CITATION: Tapak v. Non-Marine Underwriters, Lloyd's of London, 2018 ONCA 168

DATE: 20180220

DOCKET: C64205

Hourigan, Roberts and Nordheimer JJ.A.

BETWEEN

Carrie Anne Tapak, Dennis Cromarty, Faye Evans,

Pam Meady, Jennifer Esterreicher,

Anthony Clowes and Johanthan Theriault

Plaintiffs (Appellants)

and

Non-Marine Underwriters, Members of Lloyds of London

also known as Lloyds of London

Defendant (Respondent)

Christopher Hacio, for the appellants

Amanda McBride and Daniel Michaud-Shields, for the
    respondent

Heard: February 14, 2018

On appeal from the judgment of Regional Senior Justice Bonnie
    Warkentin of the Superior Court of Justice sitting without a jury, dated July
    13, 2017, with reasons reported at 2017 ONSC 4304.

REASONS FOR DECISION

[1]

The plaintiffs appeal from the order of the motion judge that granted
    summary judgment dismissing their claim on the basis that the action was barred
    by the expiration of the two year limitation period under the
Limitations
    Act, 2002
, S.O. 2002, c 24, Sched. B.

[2]

The action arises out of an accident involving a Greyhound bus that
    occurred on December 23, 2000. Shaun Davis ("Davis"), a passenger on
    the Greyhound bus, grabbed the steering wheel of the bus, forcing it across the
    highway where it rolled onto its side into a ditch.

[3]

Several of the bus passengers suffered injuries and one passenger died.
    They sued Davis, Albert Dolph, the driver of the bus, Greyhound Canada
    Transportation ("Greyhound") as operator, Her Majesty the Queen in
    the Right of the Province of Ontario, the Ontario Provincial Police, and two
    OPP Constables, Corey Parrish and Martin Singleton. A statement of claim was
    issued on June 20, 2001.

[4]

The respondent, Lloyd's of London, was the insurer for Greyhound and
    provided the defence for Greyhound and for Mr. Dolph, the bus driver. The trial
    in the action took place over many weeks in 2010 and 2011. The trial judgment was
    released on January 31, 2012. Davis did not defend the claims against him and
    did not participate in the litigation in any fashion.

[5]

The trial judge concluded that none of the defendants, except Davis, was
    liable. The plaintiffs appealed the trial judgment. They agreed to bifurcate
    the appeal so that, should this court dismiss their appeal as to the liability
    of the other defendants, there was no need to proceed with the appeal on the
    calculation of damages. The appeal on liability was dismissed on January 18,
    2015.

[6]

The plaintiffs sought leave to appeal to the Supreme Court of Canada. However
    that motion was withdrawn when the plaintiffs and the defendants, excluding
    Davis, who by then was deceased, reached a settlement.

[7]

At some point after obtaining judgment against Davis, and after Davis's death
    in October 2014, the plaintiffs sought to recover their damages from the Motor
    Vehicles Accident Claims Fund, on the basis that Davis was uninsured. They were
    denied indemnification from that fund.

[8]

In January 2016, counsel for the plaintiffs contacted the respondent
    seeking payment of the plaintiffs' damages under s. 258 of the
Insurance
    Act
,
R.S.O. 1990, c. I.8 as against Davis on the basis that the
    respondent was the insurer for Davis. When the respondent denied that they were
    the insurer for Davis, a number of the original plaintiffs to the tort action
    then commenced this action against the respondent on February 24, 2016.

Analysis

[9]

There were two issues before the motion judge. The first was whether
    Davis was an occupant of the Greyhound bus such that the insurance coverage for
    the bus would cover him. The other was whether the two year limitation period
    had expired. The motion judge concluded that she could not resolve the first
    issue on a summary judgment motion because of the factual issues involved. On
    the second issue, though, the motion judge determined that the two year
    limitation period had expired and thus the plaintiffs claim was statute
    barred.

[10]

In
    reaching her conclusion on the second issue, the motion judge said, at para. 65:

The determination of whether or not Davis was an insured under
    the Lloyd's policy was a question that should have been determined at the
    latest, no later than two years after the January 31, 2012 decision by [the
    trial judge].

[11]

The
    factual findings made by the motion judge that trigger the commencement of the
    limitation period are entitled to deference from this court 
Hryniak v.
    Mauldin
, [2014] 1 S.C.R. 87, 2014 SCC 7 at para. 81. We can see no palpable
    and overriding error in the conclusion that the motion judge reached based on
    the record that was before her. In particular, there was nothing that prevented
    the appellants from pursuing recovery with respect to the judgment against
    Davis, once they obtained it at trial. As found by the motion judge, the
    appellants were well aware that the respondent had provided the insurance
    coverage for the Greyhound bus and therefore any argument that that insurance
    provided coverage for the judgment against Davis was known to the appellants by
    that time, at the latest.

[12]

The
    appellants attempt to extend the limitation period in three ways. The first is
    to rely on the fact that an appeal was taken from the trial judgment. They rely
    on the decision of this court in
Smith et al. v. Tellier et al
.,
(1974) 4 O.R. (2d) 154 for the proposition that a judgment is not final until
    any right of appeal has been exhausted. The appellants reliance on that case
    is misplaced. The appeal of the trial judgment did not seek to alter the liability
    findings as against Davis. It was directed at the fact that the other defendants
    had not been found liable. It was only if the appellants were successful on
    that appeal that the damages might be revisited. That never occurred. The
    appeal, therefore, had no effect on the finality of the trial judgment against
    Davis.

[13]

The
    second is to submit that the appeal against the other defendants, if
    successful, might have eliminated their losses and thus the appellants did not
    know that this action was an appropriate means to seek to remedy its losses
    until the appeal was dismissed, relying on s. 5(1)(a)(iv) of the
Limitations
    Act, 2002

and
Presidential MSH Corp. v. Marr, Foster & Co.
    LLP

(2017), 135 O.R. (3d) 321, 2017 ONCA 325. In our view, s.
    5(1)(a)(iv) is not intended to be used to parse claims as between different
    defendants and thus permit one defendant to be pursued before turning to
    another defendant. Rather, it is intended to address the situation where there
    may be an avenue of relief outside of a court proceeding that a party can use
    to remedy their injury, loss or damage  see, for example,
407 ETR
    Concession Co. v. Day
, 2016 ONCA 709, 133 O.R. (3d) 762.

[14]

The
    third is the argument that the appellants only sought declaratory relief and
    therefore, under s. 16(1)(a) of the
Limitations Act, 2002
, the two
    year limitation period does not apply. That argument cannot succeed because the
    claim in this action was not limited to declaratory relief. The claim also
    sought consequential relief, namely damages, so s. 16(1)(a) does not apply.

Conclusion

[15]

The
    appeal is dismissed. The respondent is entitled to its costs of the appeal that
    we fix in the amount of $10,000.00 inclusive of disbursements and HST.

C.W. Hourigan J.A.

L.B. Roberts J.A.

I.V.B. Nordheimer J.A.


