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CIVIL PROCEDURE - Pre-trial procedures - Preliminary determinations - Question of law

Wednesday, October 11, 2017 @ 8:34 AM  


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Appeal by the defendants from a preliminary ruling on a question of law. The plaintiffs were the surviving kin of an inmate who died following a brief period of incarceration. They sought damages under the Family Law Act (FLA), plus special, punitive, aggravated and exemplary damages. A preliminary question of law asked whether legal expenses incurred as a result of the plaintiffs' participation in the coroner's inquest were legally recoverable. The motion judge ruled in the plaintiffs' favour, finding that s. 61(1) of the FLA provided a right to sue for pecuniary losses resulting from the death of a family member, with the legal expenses related to the inquest potentially recoverable as such. The defendants appealed.

HELD: Appeal allowed. The question on which the plaintiffs sought a preliminary ruling was not capable of being answered on the record, as it did not involve a question of law raised by the pleadings. Here, the pleadings were silent regarding the coroner's inquest and related legal expenses. The response to the question was unlikely to significantly advance or shorten the litigation, as it addressed potential recoverability rather than entitlement or quantum. The issue of actual recoverability was best determined on a full evidentiary record. The motion judge's order was set aside. The plaintiffs were granted leave to amend their claim accordingly, with determination of the merits at trial.

Harris v. Ontario (Ministry of Community Safety & Correctional Services), [2017] O.J. No. 5024, Ontario Court of Appeal, D.H. Doherty, H.S. LaForme and B. Miller JJ.A., September 28, 2017. Digest No. TLD-October92017005