Bonello v. Gores Landing Marina (1986) Limited

Bonello v. Gores Landing Marina (1986) Limited

The Court allowed the appeal, holding the motion judge erred in excluding discovery evidence under r.39.04 by applying r.31.11 too restrictively; the evidentiary ruling formed part of the summary judgment order and was properly before the Court; the excluded discovery raised a genuine issue as to vicarious liability of the Marina and Joseph Davies Sr. for the acts of Joseph Davies Jr., so summary judgment was inappropriate and the order granting judgment was set aside.

Citation
2017 ONCA 632
Parties
Plaintiff (appellant): Timothy Bonello; Plaintiff (appellant): Ted Bonello; Plaintiff (appellant): Anne Cutajar Wagner; Plaintiff (appellant): Andrew Bonello; Plaintiff (appellant): Mark Bonello; Defendant (respondent): Gores Landing Marina (1986) Limited; Defendant (respondent): Joseph Davies Sr.; Defendant (respondent): Murray E. Carslake; Defendant (respondent): Joseph Davies Jr. (also known as Joey Davies); Third Party: Chris Kane; Third Party: Chris Ryan; Third Party: Anthony Cook; Third Party: Gabe Mansueto; Third Party: Gerald Chestnut; Third Party: Jeff Jaglel; Third Party: Frank Buttigieg; Third Party: Dan Rule; Third Party: Mike Buttigieg
Court
Court of Appeal for Ontario
Jurisdiction
Canada
Judgment Date
2 August 2017
Procedural Posture
Civil Appeal From Summary Judgment / Court of Appeal Decision on Appeal From Summary Judgment (superior Court Order Set Aside)
Outcome
Appeal allowed; order granting summary judgment and dismissing action against Gores Landing Marina and Joseph Davies Sr. set aside; matter remitted for further proceedings.
Legal Topics
Summary Judgment, Use of Discovery Evidence on Motion, Appealability of Interlocutory Evidentiary Rulings, Exclusion of Evidence, Standard for Genuine Issue Requiring Trial
Source Language
English
Occupiers' Liability Negligence Vicarious Liability Civil Procedure Evidence (use of Discovery) Summary Judgment Use of Discovery Evidence on Motion Appealability of Interlocutory Evidentiary Rulings +2 more

Case Brief

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Parties

Timothy Bonello

Plaintiff (appellant)

Ted Bonello

Plaintiff (appellant)

Anne Cutajar Wagner

Plaintiff (appellant)

Andrew Bonello

Plaintiff (appellant)

Mark Bonello

Plaintiff (appellant)

Gores Landing Marina (1986) Limited

Defendant (respondent)

Joseph Davies Sr.

Defendant (respondent)

Murray E. Carslake

Defendant (respondent)

Joseph Davies Jr. (also known as Joey Davies)

Defendant (respondent)

Chris Kane

Third Party

Chris Ryan

Third Party

Anthony Cook

Third Party

Gabe Mansueto

Third Party

Gerald Chestnut

Third Party

Jeff Jaglel

Third Party

Frank Buttigieg

Third Party

Dan Rule

Third Party

Mike Buttigieg

Third Party

Procedural Posture

Civil Appeal From Summary Judgment / Court of Appeal Decision on Appeal From Summary Judgment (superior Court Order Set Aside)

Legal Issues

  1. 1 Whether the evidentiary order striking discovery evidence was interlocutory and outside this Court's jurisdiction
  2. 2 Whether the motion judge erred in excluding the discovery evidence of third parties and an adverse party under Rule 39.04 and Rule 31.11
  3. 3 Whether there was a genuine issue requiring a trial regarding the Marina's and Mr. Davies Sr.'s liability including potential vicarious liability for Mr. Davies Jr.

Ratio Decidendi

The Court allowed the appeal, holding the motion judge erred in excluding discovery evidence under r.39.04 by applying r.31.11 too restrictively; the evidentiary ruling formed part of the summary judgment order and was properly before the Court; the excluded discovery raised a genuine issue as to vicarious liability of the Marina and Joseph Davies Sr. for the acts of Joseph Davies Jr., so summary judgment was inappropriate and the order granting judgment was set aside.

Court Disposition

Appeal allowed; order granting summary judgment and dismissing action against Gores Landing Marina and Joseph Davies Sr. set aside; matter remitted for further proceedings.

Orders

  • Appeal allowed and order under appeal set aside
  • Parties free to pursue their claims including other motions for summary judgment without being bound by determinations made in the decision under appeal