D’Onofrio v. Advantage Car & Truck Rentals Limited

D’Onofrio v. Advantage Car & Truck Rentals Limited

The First Order was made on the mistaken premise of unanimous consent and cannot stand; taking 'no position' is not consent, there was no judicial determination on the merits of the summary judgment motion, and therefore the First, Second and Costs Orders are set aside and the summary judgment motion is dismissed without prejudice to renewal.

Citation
2017 ONCA 5
Parties
Plaintiff (appellant): Anthony D’Onofrio; Plaintiff (appellant): James D’Onofrio; Plaintiff (appellant): Anna D’Onofrio; Defendant (respondent): Advantage Car & Truck Rentals Limited; Defendant (respondent): Anita Marques; Defendant (respondent): Unifund Assurance Company
Court
Court of Appeal for Ontario
Jurisdiction
Canada
Judgment Date
5 January 2017
Procedural Posture
Civil / Appeal to Court of Appeal From Superior Court Summary Judgment and Clarification Orders
Outcome
Appeal allowed; First Order, Second Order and Costs Order set aside; Summary Judgment Motion dismissed without prejudice to Unifund's right to renew; costs awarded to appellants.
Legal Topics
Summary Judgment, Consent Orders, Estoppel, Res Judicata, Costs, Uninsured Motorist
Source Language
English
Civil Procedure Insurance Law Tort Summary Judgment Consent Orders Estoppel Res Judicata Costs +1 more

Case Brief

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Parties

Anthony D’Onofrio

Plaintiff (appellant)

James D’Onofrio

Plaintiff (appellant)

Anna D’Onofrio

Plaintiff (appellant)

Advantage Car & Truck Rentals Limited

Defendant (respondent)

Anita Marques

Defendant (respondent)

Unifund Assurance Company

Defendant (respondent)

Procedural Posture

Civil / Appeal to Court of Appeal From Superior Court Summary Judgment and Clarification Orders

Legal Issues

  1. 1 Whether determinations made in a summary judgment motion bind all parties to the proceeding
  2. 2 What legal effect follows when a party takes "no position" on a summary judgment motion
  3. 3 Whether the summary judgment motion judge provided adequate reasons

Ratio Decidendi

The First Order was made on the mistaken premise of unanimous consent and cannot stand; taking 'no position' is not consent, there was no judicial determination on the merits of the summary judgment motion, and therefore the First, Second and Costs Orders are set aside and the summary judgment motion is dismissed without prejudice to renewal.

Court Disposition

Appeal allowed; First Order, Second Order and Costs Order set aside; Summary Judgment Motion dismissed without prejudice to Unifund's right to renew; costs awarded to appellants.

Orders

  • Set aside Order dated August 13, 2015 (First Order)
  • Set aside Order dated December 30, 2015 (Second Order)