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Res Judicata – Estoppel – Summary Judgment

Posted on January 24, 2017 | Posted in Civil Litigation, Five Liners

D’Onofrio v. Advantage & Truck Rentals Ltd. 2017 Ont CA

Plaintiff joined individual driver and its own insurer as defendants in action for personal injury. Its own insurer was joined because there was an issue as to whether the individual driver was the actual driver and the insurer was responsible for damages if there were no identifiable driver. The insurer brought a motion for summary judgment claiming that there was no genuine issue for trial because the driver was known. The individual driver took no position on the summary judgment motion, but still wished to maintain its identity defence. The Court of Appeal held that this was an error. Once judgment was granted to the insurer, then, as a co-defendant, the individual driver could no longer rely on the identity defence. It was bound by the summary judgment. The same result would have held true had the individual driver consented to the dismissal of the action against the insurer. Although judgment will not be not given on the merits, a consent has the same effect because it is an agreement elevated to an order and the parties cannot resile from that agreement. As it happened, the insurer’s lawyer mistakenly told the motions judge that the order was on consent, when it was not. On that basis, since the order was granted by mistake, then, regardless of the error in assumptions of the driver, the order could not stand.

Moral: do not be quick to either take no position on, consent to, an order dealing with a co-defendant because your client will be bound by that order.


Jonathan Speigel


Written by Jonathan Speigel Jonathan Speigel, the founding partner of Speigel Nichols Fox LLP, leads the litigation and construction practices.



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