Contributed by Michael Ettedgui, OTLA member and associate lawyer with Linden & Associates.
June 8, 2015
Agaki v. Synergy Group (2002), 2015 ONCA 44
Appealing from a judgement at an undefended trial on April 24, 2013, the appellants argued that having not been properly served with notice of two proceedings leading up to trial (one in October 2012 and the other in January 2013), the judgement should be set aside. The Court of Appeal disagreed.
In this case, the appellants did nothing to set aside the orders of 2012 and 2013, notwithstanding their knowledge of both proceedings. Had they taken such steps, they would have had to establish, beyond defective service, that they had no actual knowledge of the proceedings.
The issue of defective service was dealt with in the October 2012 proceeding when the presiding judge validated service by courier on the defendant's registered address. On appeal, the appellants argued that an order made without notice is a nullity. This, the Court held, is not the law, writing, "the order is nonetheless an order until it is set aside."
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Sathasivam v. Kandasamy, 2015 ONSC 3301
This decision concerns a summary judgement motion by the defendant State Farm, which argued there was no basis for the plaintiff to maintain a claim against it.
The plaintiff was a passenger in the defendant Kandasamy's car, which was insured by State Farm. A car operated by the defendant Craddock was attempting to make a left hand turn when it was forced to abruptly stop because of the actions of an unidentified car. As a result, the Kandasamy and Craddock vehicles collided. The plaintiff claimed against Kandasamy, Craddock and the unidentified driver.
State Farm responded to the unidentified claim and brought this summary judgement motion on the basis that at least one of the two identified drivers would be found at least 1 per cent liable for her damages, thereby shielding it from liability pursuant to s. 2(1)(c) of Regulation 676 to the Insurance Act.
Noting that "irrespective of John Doe, Craddock and/or Kandasamy will be held liable for the injuries sustained by the plaintiff passenger since there is a positive onus on a driver to maintain a safe distance and drive reasonable in the circumstances," Faieta J. ruled against State Farm. Quoting the Supreme Court of Canada's decision in Hryniak v. Mauldin, 2014 SCC 7, the decision reads:
On a motion for summary judgment under Rule 20.04, the judge should first determine if there is a genuine issue requiring trial based only on the evidence before her, without using the new fact-finding powers. There will be no genuine issue requiring a trial if the summary judgment process provides her with the evidence required to fairly and justly adjudicate the dispute and is a timely, affordable and proportionate procedure, under Rule 20.04(2)(a). If there appears to be a genuine issue requiring a trial, she should then determine if the need for a trial can be avoided by using the new powers under Rules 20.04(2.01) and (2.2). She may, at her discretion, use those powers, provided that their use is not against the interest of justice...
In this motion, State Farm did not meet the first prong of its onus. Although it submitted an affidavit and attached a copy of the motor vehicle accident report, its affiant did not state the source of her information and beliefs. Further, she stated her belief "...that the parties confirmed the essential facts of loss as reported by the Motor Vehicle Accident Report during their Examinations for Discovery," without attaching the relevant portions of the transcripts of those discoveries as exhibits to her affidavit. Faieta J. disregarded the affidavit for lack of compliance with rules 4.06(2), 20.02(10 and 39.01(4) and dismissed State Farm's motion.
Read the full decision on CanLII