M. Jean

The defendant brought a motion to set aside a noting in default and for leave to file a defence in an action for statutory accident benefits.

The defendant argued the plaintiff's claim was premature because mediation at the Financial Services Commission of Ontario (FSCO) had not occurred.

The court found the mediation was deemed failed due to the expiration of the 60-day prescribed time limit, meaning the plaintiff's claim was not premature.

The court dismissed the motion to set aside the noting in default because the defendant provided no explanation for its delay in responding to the statement of claim and no evidence of an intent to defend.

The defendant, Coventry Connections Inc., brought a motion under Rule 51.05 of the Rules of Civil Procedure for leave to withdraw an admission in its statement of defence that the co-defendant taxi driver was its employee.

The plaintiff opposed the motion.

Applying the three-part test from Antipas v. Coroneos, the Master found that the admission was inadvertent and that its withdrawal would not result in any non-compensable prejudice to the plaintiff.

The motion was granted, allowing the defendant to amend its pleading to reflect the discovery evidence that the driver was an independent owner and operator.