Laudon v. Roberts et al.,

• Jurisdiction: Ontario
• Judge: Weiler, Juriansz and MacFarland, JJ.A.
• Neutral Citation: 2009 ONCA 383
• Date: 10 December 2008
• Court: Court of Appeal (Ontario)

Laudon v. Roberts (2009), 249 O.A.C. 72 (CA)

MLB headnote and full text

Temp. Cite: [2009] O.A.C. TBEd. MY.039

Rick Laudon (respondent/plaintiff) v. Will Roberts and Keith Sullivan (appellant/defendants)

(C48648; 2009 ONCA 383)

Indexed As: Laudon v. Roberts et al.

Ontario Court of Appeal

Weiler, Juriansz and MacFarland, JJ.A.

May 7, 2009.

Summary:

The plaintiff was a passenger in a boat operated by the defendant, Sullivan, when it was struck by a boat operated by the defendant, Roberts. The plaintiff suffered injuries. The plaintiff settled his claim against Roberts and they entered into a form of Mary Carter Agreement (MCA) pursuant to which Roberts paid the plaintiff $365,000 for damages and interest. The case proceeded to trial and a jury assessed the plaintiff's total damages at $312,021. The jury found the plaintiff 11% contributorily negligent and assessed the remaining liability 50% against Roberts and 39% against Sullivan. The trial judge refused to deduct the amount paid to the plaintiff by Roberts under the MCA from the damage award and awarded the plaintiff judgment against Sullivan in the sum of $121,688.19 (exclusive of pre-judgment interest). Sullivan appealed, asserting that the trial judge erred in failing to deduct the settlement monies from the judgment sum and thereafter failing to dismiss the action against Sullivan and award him his costs against the plaintiff.

The Ontario Court of Appeal allowed the appeal and set aside the judgment. The court issued a judgment dismissing the action against Sullivan and awarded him his costs of the trial against the plaintiff.

Damages - Topic 510

Limits of compensatory damages - General - Prohibition against double recovery - [See first Damages - Topic 1696 ].

Damages - Topic 1696

Deductions for payments or assistance by third parties - General - Settlement by one defendant - The plaintiff was a passenger in a boat operated by the defendant, Sullivan, when it was struck by a boat operated by the defendant, Roberts - The plaintiff suffered injuries - The plaintiff settled his claim against Roberts and they entered into a form of Mary Carter Agreement (MCA) pursuant to which Roberts paid the plaintiff $365,000 for damages and interest - The case proceeded to trial and a jury assessed the plaintiff's total damages at $312,021 - The jury found the plaintiff 11% contributorily negligent and assessed the remaining liability 50% against Roberts and 39% against Sullivan - The trial judge refused to deduct the amount paid to the plaintiff by Roberts under the MCA from the damage award and awarded the plaintiff judgment against Sullivan in the sum of $121,688.19 (exclusive of pre-judgment interest) - Sullivan appealed, asserting that the trial judge erred in failing to deduct the settlement monies from the judgment sum and thereafter failing to dismiss the action against Sullivan and award him his costs against the plaintiff - The Ontario Court of Appeal allowed the appeal and set aside the judgment - The court issued a judgment dismissing the action against Sullivan and awarded him his costs of the trial against the plaintiff - The settlement monies received were on account of the same damage for which the plaintiff continued his proceeding against Sullivan - The plaintiff's total damages were assessed by a jury at $312,000 which was less than the amount he received from Roberts - To permit the plaintiff to recover any amount from Sullivan would result in double-recovery to the plaintiff - Double recovery, save in a few narrow exceptions which had no application to the facts here, was not permitted - See paragraphs 27 to 56.

Damages - Topic 1696

Deductions for payments or assistance by third parties - General - Settlement by one defendant - The Ontario Court of Appeal held that it was not appropriate, before the trial had begun and before any damage assessment had been made, to make any order in relation to the deductibility of an amount paid to the plaintiff pursuant to a Mary Carter Agreement with one of the two defendants - The time for that order to be made was after the jury's verdict had been received or, in a judge alone trial, after judgment assessing the damages had been received - Until then, the issue of deductibility could only be hypothetical - See paragraphs 23 to 24.

Practice - Topic 8984

Appeals - When appeal available - From final judgment or order - The plaintiff was a passenger in a boat operated by the defendant, Sullivan, when it was struck by a boat operated by the defendant, Roberts - The plaintiff suffered injuries - The plaintiff settled his claim against Roberts and they entered into a form of Mary Carter Agreement (MCA) pursuant to which Roberts paid the plaintiff $365,000 for damages and interest - A jury subsequently assessed the plaintiff's total damages at $312,021 - The trial judge refused to deduct the amount paid to the plaintiff by Roberts under the MCA from the damage award and awarded the plaintiff judgment against Sullivan for $121,688.19 (39% of $312,021) - Sullivan appealed, asserting that the trial judge erred in failing to deduct the settlement monies from the judgment sum - The respondents argued that the deductibility of the money paid to the plaintiff by Roberts pursuant to the MCA was decided by the trial judge at the outset of the trial in his ruling dated October 12, 2006, and that the Notice of Appeal filed on April 16, 2008, was out of time - The Ontario Court of Appeal rejected the argument - A trial judge had full authority, during the course of a trial, to revisit rulings made earlier in the proceedings - In view of that jurisdiction, rulings made intra-trial did not become final for the purposes of appeal until judgment had been entered - Even if the court was wrong, it would have found that Sullivan met the test for an order extending time to file an appeal - See paragraphs 16 to 26.

Practice - Topic 9002

Appeals - Notice of appeal - Extension of time for filing and serving notice of appeal - [See Practice - Topic 8984 ].

Practice - Topic 9164

Appeals - Cross-appeals, notices of contention and notices to vary - Filing of - Effect of failure to file - The plaintiff was a passenger in a boat operated by the defendant, Sullivan, when it was struck by a boat operated by the defendant, Roberts - The plaintiff suffered injuries - The plaintiff settled his claim against Roberts and they entered into a form of Mary Carter Agreement (MCA) pursuant to which Roberts paid the plaintiff $365,000 for damages and interest - A jury subsequently assessed the plaintiff's total damages at $312,021 - The jury found the plaintiff 11% contributorily negligent and assessed the remaining liability 50% against Roberts and 39% against Sullivan - The trial judge refused to deduct the amount paid to the plaintiff by Roberts under the MCA from the damage award and awarded the plaintiff judgment against Sullivan for $121,688.19 or 39% of $312,021 - Sullivan appealed, asserting that the trial judge erred in failing to deduct the settlement monies from the judgment sum - In his factum, Roberts requested that if the trial judge's ruling was overturned then (a) the judgment funds payable by Sullivan be paid over to Roberts by way of reimbursement or (b) the matter be returned for retrial to allow the cross-claims to be tried properly between the defendants - The Ontario Court of Appeal allowed Sullivan's appeal - With respect to Roberts' request, the court stated that because he did not cross-appeal no relief was available to Roberts - In any event, Roberts had clearly abandoned any right to recover anything from Sullivan and the trial had proceeded on that basis - Further there was nothing in the agreement between the plaintiff and Roberts which suggested that Roberts would pursue his cross-claim against Sullivan - Therefore, even if Roberts had cross-appealed, the cross-appeal would have been dismissed - See paragraphs 57 to 65.

Practice - Topic 9851.1

Settlements - Mary Carter or Pierringer agreements - [See both Damages - Topic 1696 ].

Practice - Topic 9853

Settlements - By one of multiple defendants, joint or concurrent tortfeasors or successive contract breakers - Effect of - [See first Damages - Topic 1696 ].

Torts - Topic 7420

Joint and concurrent tortfeasors - Contribution between tortfeasors - Settlement by one tortfeasor - [See Practice - Topic 9164 ].

Cases Noticed:

J. & M. Chartrand Realty Ltd. v. Martin (1981), 22 C.P.C. 186 (Ont. H.C.), refd to. [para. 23, footnote 2].

Bodnar v. Home Insurance Co., [1987] O.J. No. 2365, refd to. [para. 23, footnote 2].

Holmes v. Hanna et al., [2001] B.C.T.C. 1228; 2001 BCSC 1228, refd to. [para. 24, footnote 3].

Khan v. Pfuegel (1984), 44 C.P.C. 154 (Ont. H.C.), refd to. [para. 25].

Button v. Jones, [2004] O.T.C. 1043; 73 O.R.(3d) 364 (Sup. Ct.), refd to. [para. 25].

Predie et al. v. Sadlon (Paul) Motors Inc. et al., [2005] O.T.C. 209; 2005 CanLII 8696 (Sup. Ct.), refd to. [para. 25].

Ratych v. Bloomer, [1990] 1 S.C.R. 940; 107 N.R. 335; 39 O.A.C. 103, consd. [para. 27].

Pettey et al. v. Avis Car Inc. et al. (1993), 13 O.R.(3d) 725 (Gen. Div.), refd to. [para. 34].

Sparling v. Southam Inc. (1988), 66 O.R.(2d) 225 (H.C.), refd to. [para. 35].

Bryanston Finance v. de Vries, [1975] 2 All E.R. 609, refd to. [para. 40].

Dixon v. British Columbia, [1979] B.C.J. No. 304, consd. [para. 41].

Lawson v. Burns (1976), 70 D.L.R.(3d) 735 (B.C.S.C.), consd. [para. 45].

Logan v. Canada Safeway Ltd. et al., [2006] B.C.T.C. Uned. A66; 2006 BCSC 1723, refd to. [para. 46].

Ashcroft v. Dhaliwal et al., [2007] B.C.T.C. Uned. C65; [2007] 10 W.W.R. 326; 2007 BCSC 533, affd. (2008), 259 B.C.A.C. 160; 436 W.A.C. 160; 298 D.L.R.(4th) 509; 2008 BCCA 352, leave to appeal denied (2009), 395 N.R. 387 (S.C.C.), consd. [paras. 46, 48].

Deslauries v. Ginn, [1986] B.C.J. No. 3028, refd to. [para. 46].

Edmonton (City) v. Lovat Tunnel Equipment Inc. et al., [2000] 4 W.W.R. 714; 260 A.R. 140 (Q.B.), refd to. [para. 46].

Beresford-Last v. Dwork, [2000] O.J. No. 5506, refd to. [para. 47].

Athey v. Leonati et al., [1996] 3 S.C.R. 458; 203 N.R. 36; 81 B.C.A.C. 243; 132 W.A.C. 243; 140 D.L.R.(4th) 235, refd to. [para. 51].

M.B. v. British Columbia, [2003] 2 S.C.R. 477; 309 N.R. 375; 187 B.C.A.C. 161; 307 W.A.C. 161; 2003 SCC 53, consd. [para. 53].

Counsel:

Martin Forget and Linda Matthews, for the appellant, Keith Sullivan;

Bernard P. Keating and J. Ralston, for the respondent, Rick Laudon;

Edward J. Chadderton, for the respondent, Will Roberts.

This appeal was heard on December 10, 2008, before Weiler, Juriansz and MacFarland, JJ.A., of the Ontario Court of Appeal. The following judgment of the Court of Appeal was delivered by MacFarland, J.A., and was released on May 7, 2009.