Zeitoun v. Economical Ins. (2008), 236 O.A.C. 76 (DC)
MLB headnote and full text
Temp. Cite: [2008] O.A.C. TBEd. MY.060
Mario Zeitoun, Alba Zeitoun, Edmund Farrage, Litigation Guardian for Sammy Zeitoun, Sammer Zeitoun and Hannah Zeitoun (plaintiffs/respondents) v. The Economical Insurance Group (defendant/appellant)
(111/07)
Indexed As: Zeitoun et al. v. Economical Insurance Group
Court of Ontario
Superior Court of Justice
Divisional Court
Lederman, Swinton and Low, JJ.
May 6, 2008.
Summary:
In 2003, the plaintiffs issued a claim against Economical Insurance Group under the uninsured/underinsured motor vehicle coverage, arising out of a motor vehicle accident that occurred in 1992. Economical sought an order for security for costs. The plaintiffs asserted impecuniosity.
A Master of the Ontario Superior Court, in a decision reported at [2006] O.T.C. Uned. 841, ordered the plaintiffs to post $45,000 in security for costs. The plaintiffs appealed.
The Ontario Superior Court, in a decision reported at [2007] O.T.C. 300, allowed the appeal, setting aside the order for security for costs. The defendant appealed.
The Ontario Divisional Court allowed the appeal, restoring the Master’s order.
Courts – Topic 1127
Masters – Appeals from – Standard of review – A Master ordered plaintiffs in an action arising out of a motor vehicle accident to post security for costs – The plaintiffs appealed – A motions judge conducted a de novo hearing on the basis that the order appealed from, though interlocutory, was vital to the final issue – Substituting his own view of the evidence, the motions judge allowed the appeal, setting aside the order – The defendant appealed – At issue was the appropriate standard of review to be applied by a judge hearing an appeal from a Master – The Ontario Divisional Court allowed the appeal – After reviewing the authorities, the court concluded that the jurisprudence holding that a Master’s interlocutory order that was deemed “most vital to the final issue in the case” attracted a higher level of intervention by way of a de novo hearing was unjustifiably anomalous – The court should proceed on the presumption of fitness of judicial officers to perform the mandates assigned to them – A Master’s order, whether final or interlocutory, should be interfered with only if the Master erred in law or exercised his or her discretion on the wrong principles or misapprehended the evidence such that there was a palpable and overriding error – There was no compelling reason for adopting different standards of review on appeal solely on the place in the judicial hierarchy occupied by the decision maker whose decision was under appeal – Where the Master had erred in law, the standard of review was correctness whether the decision was final or interlocutory and whether or not it was vital to the disposition of the action – See paragraphs 15 to 41.
Practice – Topic 8112
Costs – Security for costs – General principles – Where plaintiff insolvent or impecunious – In 2003, the plaintiffs issued a claim against Economical Insurance Group under the uninsured/underinsured motor vehicle coverage, arising out of a motor vehicle accident that occurred in 1992 – Economical sought an order for security for costs on the basis that the plaintiffs were ordinarily resident outside of Ontario – The plaintiffs asserted impecuniosity – The Master found that impecuniosity was not shown and that the claim lacked a good chance of success – She ordered the plaintiffs to post $45,000 in security for costs – On appeal, a motions judge conducted a de novo hearing – Determining that the evidence of impecuniosity was not “so deficient” as to deny the claim to impecuniosity and that the Master had erred by placing too high an onus on the plaintiffs as to the action’s merits, he set aside the order for security for costs – The Ontario Divisional Court allowed Economical’s appeal – The motions judge erred in law in proceeding de novo and substituting his own view of the evidence – The Master’s finding that impecuniosity was not shown was supportable – Where impecuniosity was shown, the plaintiff needed only to demonstrate that the claim was not plainly devoid of merit – Where impecuniosity had not been shown, closer scrutiny was warranted – The crucial question was whether the at-fault driver was insured – In the absence of evidence that he was uninsured, there was no viable action – Further, the limitation period appeared to be a complete defence – The Master’s exercise of discretion was supportable and based on correct principles – Employing a standard of deference, it was not to be interfered with – See paragraphs 42 to 53.
Practice – Topic 8113
Costs – Security for costs – General principles – Where plaintiff resident out of jurisdiction – General – [See
Practice – Topic 8112
].
Cases Noticed:
Hudon et al. v. Colliers MacAulay Nicolls Inc. (2001), 147 O.A.C. 163 (Div. Ct.), refd to. [para. 10].
Carter v. Brooks (1990), 41 O.A.C. 389; 2 O.R.(3d) 321 (C.A.), refd to. [para. 10].
Chachula v. Baillie, [2004] O.T.C. 1; 69 O.R.(3d) 175 (Sup. Ct.), refd to. [para. 11].
Marleen Investments Ltd. v. McBride et al. (1979), 23 O.R.(2d) 125 (H.C.), refd to. [para. 18].
Quality Steels (London) Ltd. v. Atlas Steels Ltd., [1949] O.W.N. 110 (H.C.), refd to. [para. 18].
Adamson v. Adamson et al. (1888), 12 P.R. 469 (Ont. Ch.), refd to. [para. 18].
Stoicevski v. Casement (1983), 43 O.R.(2d) 436 (C.A.), refd to. [para. 19].
Madonia et al. v. Mulder et al., [2002] O.A.C. Uned. 370; 17 C.P.C.(5th) 349 (Div. Ct.), refd to. [para. 20].
Reid v. Dow Corning Corp., [2002] O.J. No. 3414 (Div. Ct.), refd to. [para. 20].
McBride v. Pilon (2002), 163 O.A.C. 101 (Div. Ct.), refd to. [para. 20].
S.P.Y. Underground Cable & Trenching Inc. et al. v. Sims et al. (2004), 181 O.A.C. 329 (Div. Ct.), refd to. [para. 20].
1286110 Ontario Ltd. v. College Manning Professional Centre Inc. et al. (2005), 208 O.A.C. 103; 78 O.R.(3d) 463 (Div. Ct.), refd to. [para. 20].
Bank of Nova Scotia v. Liberty Mutual Insurance Co. et al. (2003), 178 O.A.C. 254; 67 O.R.(3d) 699 (Div. Ct.), refd to. [para. 21].
Moritex Europe Ltd. v. Oz Optics Ltd. (2006), 213 O.A.C. 156; 81 O.R.(3d) 783 (Div. Ct.), refd to. [para. 23].
1485625 Ontario Inc. et al. v. Peel Halton Kitchens Inc. (2004), 185 O.A.C. 383 (Div. Ct.), refd to. [para. 25].
Evans v. Bartlam, [1937] A.C. 473 (H.L.), disagreed with [para. 27].
Jordan v. McKenzie (1987), 26 C.P.C.(2d) 193 (Ont. H.C.), affd. (1989), 39 C.P.C.(2d) 217 (Ont. C.A.), refd to. [para. 33].
Conrad v. Feldbar Construction Co., [2004] O.T.C. Uned. 292; 70 O.R.(3d) 298 (Sup. Ct.), refd to. [para. 33].
Equity Waste Management of Canada et al. v. Halton Hills (Town) (1997), 103 O.A.C. 324; 35 O.R.(3d) 321 (C.A.), appld. [para. 35].
Housen v. Nikolaisen et al., [2002] 2 S.C.R. 235; 286 N.R. 1; 219 Sask.R. 1; 272 W.A.C. 1, appld. [para. 38].
Hallum v. Canadian Memorial Chiropractic College (1989), 70 O.R.(2d) 119 (H.C.), refd to. [para. 45].
Wink (John) Ltd. v. Sico Inc. (1987), 57 O.R.(2d) 705 (H.C.), refd to. [para. 49].
Counsel:
Bryan D. Rumble, for the plaintiff/respondent;
David Zuber, for the defendant/appellant.
This appeal was heard at Toronto, Ontario, on April 7, 2008, by Lederman, Swinton and Low, JJ., of the Ontario Divisional Court. Low, J., released the following judgment for the court on May 6, 2008.
