Injured party sued property owner and winter maintenance provider based on negligence
In proceedings arising from injuries due to a slip-and-fall accident in a parking lot, the Ontario Court of Appeal dismissed the property owner’s and the winter maintenance provider’s appeal against a decision in the injured party’s favour.
Diep v. Mac's Convenience Stores Inc., 2026 ONCA 424, revolved around an incident in December 2017. The respondent parked in the parking lot of a Markham convenience store. While reaching for his vehicle’s door handle, he slipped and fell on ice or snow and sustained serious injuries.
The respondent applied to Wawanesa Mutual Insurance Company, his automobile insurer, for statutory accident benefits (SABs). Wawanesa rejected his application.
A Licence Appeal Tribunal (LAT) adjudicator determined that the respondent was entitled to SABs from Wawanesa, as he had been involved in an accident as defined in the Statutory Accident Benefits Schedule.
In December 2019, the respondent brought claims against the appellants, which were the parking lot owner and the winter maintenance provider for the parking lot. He sued the appellants for:
In November 2024, the appellants each filed a motion under r. 21.01(1)(a) of the Rules of Civil Procedure, RRO 1990, Reg 194. They asserted that:
On Apr. 30, 2025, Justice Myrna Lack of the Ontario Superior Court of Justice denied the appellants’ requested orders.
The motion judge disagreed with the appellants’ first argument. She explained that the respondent’s claim against the appellants was not an action for loss or damage from bodily injury arising directly or indirectly from an automobile’s use or operation under s. 267.8 of the Insurance Act.
The judge also rejected the appellants’ second argument. She pointed out that the loss OHIP claimed did not arise directly or indirectly from an automobile’s use or operation, as required under s. 30(1) of the HIA.
Alternatively, the judge determined that the appellants were not insured under a motor vehicle liability policy issued in the province as required under s. 30(5) of the HIA.
On appeal, the appellants alleged that the judge committed multiple interrelated errors. They also wanted to submit fresh evidence regarding the insurance policies that covered them at the time of the accident.
The Court of Appeal for Ontario dismissed the appeal and denied the appellants’ fresh evidence motion.
First, the appeal court ruled that the motion judge did not err by disregarding the binding rulings in El-Khodr v. Lackie, 2017 ONCA 716, and Ontario (Ministry of Health and Long-Term Care) v. Georgiou, 2002 CanLII 45036 (ON CA).
The appeal court distinguished this case from those decisions. The appeal court explained that El-Khodr did not address any question regarding the deduction of SABs and did not tackle the propositions that:
The appeal court added that Georgiou did not address the issue of whether the injured party’s action for loss or damage from bodily injury or death directly or indirectly arose from an automobile’s use or operation.
Second, upon considering an impugned statement in the judge’s reasons, the appeal court rejected the appellants’ argument that the judge erred by failing to recognize the real purpose of s. 267.8 of the Insurance Act or by allowing the respondent to recover twice when s. 267.8’s clear goal was to avoid double recovery.
The appeal court saw no error in the judge’s conclusions on this matter.
Fourth, the appeal court held that the judge committed no errors by:
The appeal court noted that the judge based her finding of no abuse of process on her determination that the context of the present motion was very different from the circumstances in the LAT proceedings.
The appeal court also found that the judge and the LAT adjudicator dealt with different issues.
Lastly, the appeal court awarded the respondent’s appeal costs on a partial indemnity scale in the agreed amount of $15,000, including disbursements and taxes.
