Zeitoun et al. v. Economical Insurance Group, (2009) 257 O.A.C. 29 (CA)

• Judge: Doherty, Moldaver, MacPherson, Simmons and Cronk, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: May 19, 2009
• Jurisdiction: Ontario
• Citations: (2009), 257 O.A.C. 29 (CA);2009 ONCA 415

Zeitoun v. Economical Ins. (2009), 257 O.A.C. 29 (CA)

MLB headnote and full text

Temp. Cite: [2009] O.A.C. TBEd. MY.075

Mario Zeitoun, Abla Zeitoun and Edmund Farrage , William Farrage , Litigation Guardian for Sammy Zeitoun, Sammer Zeitoun and Hannan Zeitoun (plaintiffs/appellants) v. The Economical Insurance Group (defendant/respondent)

(C49590; 2009 ONCA 415)

Indexed As: Zeitoun et al. v. Economical Insurance Group

Ontario Court of Appeal

Doherty, Moldaver, MacPherson, Simmons and Cronk, JJ.A.

May 19, 2009.

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, in a decision reported at (2008), 236 O.A.C. 76, allowed the appeal, restoring the Master's order. The plaintiffs appealed.

The Ontario Court of Appeal dismissed the appeal.

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 Divisional Court allowed the defendant's appeal, restoring the Master's order - At issue was the appropriate standard of review to be applied by a judge hearing an appeal from a Master - 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 - The Ontario Court of Appeal dismissed the plaintiffs' appeal - The court agreed that there was no reasoned basis for distinguishing between the decision of a Master and that of a judge for the purposes of the standard of review on appeal.

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 Divisional Court allowed Economical's appeal, restoring the Master's order - 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 - Further, 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 - The Ontario Court of Appeal dismissed the plaintiffs' appeal - There was no basis on which to interfere with the Master's analyses of the evidence or her application of the relevant principles - Nor was the result reached by the Master unreasonable.

Practice - Topic 8113

Costs - Security for costs - General principles - Where plaintiff resident out of jurisdiction - General - [See Practice - Topic 8112 ].

Cases Noticed:

Housen v. Nikolaisen et al., [2002] 2 S.C.R. 235; 286 N.R. 1; 219 Sask.R. 1; 272 W.A.C. 1, refd to. [para. 1].

H.L. v. Canada (Attorney General) et al., [2005] 1 S.C.R. 401; 333 N.R. 1; 262 Sask.R. 1; 347 W.A.C. 1, refd to. [para. 1].

Counsel:

G. Joseph Falconeri and Bryan Rumble, for the plaintiffs/appellants;

David Zuber and Joanna Wojcik, for the defendant/respondent.

This appeal was heard by Doherty, Moldaver, MacPherson, Simmons and Cronk, JJ.A., of the Ontario Court of Appeal. The court delivered the following appeal book endorsement on May 19, 2009.