CITATION: Mai v. Aviva Canada Inc., 2024 ONSC 2134

Court File No. DC-22-00000514-0000

Date: 20240229

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B E T W E E N:

DIVISIONAL COURT SUPERIOR COURT OF JUSTICE

LY MAI

Plaintiff

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• and -

20 AVIVA CANADA INC.

Defendant

R E A S O N S F O R J U D G M E N T

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BEFORE THE HONOURABLE JUSTICE D. L. CORBETT,

THE HONOURABLE JUSTICE R. A. LOCOCO, and THE HONOURABLE JUSTICE R. B. REID

on February 29, 2024, at TORONTO, Ontario

APPEARANCES:

30 M. White Counsel for the Defendant

D. Lee Counsel for the Third Party (Intervenor)

(i)

Table of Contents

DIVISIONAL COURT SUPERIOR COURT OF JUSTICE

T A B L E O F C O N T E N T S

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ENTERED ON PAGE

REASONS FOR JUDGMENT 1

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THURSDAY, FEBRUARY 29, 2024

CLERK REGISTRAR: Good morning, everyone. Welcome to the Superior Court of Justice. Today is February 29th, 2024. You are before Justices

5 Corbett, Lococo, and Reid. Just a reminder, under

s. 136 of the Courts of Justice Act, it’s an offence for anyone to copy, record, publish, broadcast, or disseminate a court hearing or any portion of it without leave of the court. This

10 prohibition includes any screenshots.

Furthermore, members of the public and all other persons in the courtroom must comply with the terms of the court’s protocol on the use of electronic

15 devices in the courtroom which is available on the Superior Court of Justice website. Court is now in session. Thank you.

R E A S O N S F O R J U D G M E N T DIVISIONAL COURT, SUPERIOR COURT OF JUSTICE

20 Corbett, Lococo, Reid, JJ. CORBETT, J. (Orally):

Reasons for Judgment

Hi, everyone. Justice Corbett here with my colleagues Justices Lococo and Reid to hear the matter of Mai v. Aviva, coming out of the Licence

25 Appeal Tribunal. We have - Mr. White is here for Aviva and Mr. Lee is here for the intervening tribunal. Ms. Mai is not here, neither is counsel for her. It is now not quite 10 after 10:00 in the morning.

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There is a bit of a history to this matter. It was scheduled for a hearing last summer and I adjourned

it at the request of the applicant who wished to change counsel. Counsel was changed, and subsequently in preparation for our hearing today the panel found that none of Ms. Mai’s materials

5 had been uploaded to CaseLines on her behalf. The staff were directed to contact Ms. Mai, or more specifically her counsel of record. Counsel of record indicated that she was no longer assisting Ms. Mai, but acknowledged that no formal change in

10 representation had been filed with the court. Counsel was given a direction to file that change of representation or to appear, and counsel is not here. I must say that we’re not terribly impressed with that.

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Further efforts to contact Ms. Mai to rectify the CaseLines issue and to determine her intentions for today were met with “radio silence”. The court staff have heard nothing further, and now as of 10

20 after 10:00 in the morning on the appointed day for the hearing of this matter neither counsel nor Ms. Mai are here, and none of her materials are in CaseLines.

25 Now, as it happens, a factum for Ms. Mai that had been delivered, that is, had been served on respondents, has been included in some of the responding materials that are in CaseLines, and we have reviewed it.

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In all of the circumstances, having conferred with my colleagues in advance of this hearing, we are

dismissing this matter as abandoned, and we note as well that on the basis of the written argument filed that is produced in the materials, we see little merit in the matter in any event and would

5 have dismissed on the merits. Had Ms. Mai or her counsel shown up, we would, of course, have heard their argument on the merits based on the materials that had been filed before coming to a firm conclusion on that, but we certainly had the

10 provisional view that there did not seem to be any basis on which to intervene with the decision below in this matter.

So, the matter is dismissed as abandoned.

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Costs

Mr. White, what is Aviva’s position on costs? MR. WHITE: Thank you very much, Justices. With respect to costs, as you probably know in the

underlying litigation there is no costs. So, this

20 is a matter that’s been going on for quite some time. We did indeed prepare for the attendance in the summer that was adjourned pretty close to the last minute.

JUSTICE CORBETT: What did - what was said about

25 costs of the adjournment?

MR. WHITE: I’m going to - I’m going to paraphrase [indiscernible] actually my friend reminded me of this this morning, was that consented - our client consented to the adjournment on the understanding

30 that - and perhaps you can help me with the actual wording. I believe my best recollection was that the costs of the adjournment would be addressed

today.

JUSTICE CORBETT: Well, the question is what I directed. I believe I am the person who did it and it was done in advanced of the hearing, was it not?

5 MR. WHITE: It was done in advance of the hearing. JUSTICE CORBETT: So, you didn’t have the expense of showing up.

MR. WHITE: No.

JUSTICE CORBETT: And I am guessing that any

10 preparation you did then did not entirely leave your brain in the meantime?

MR. WHITE: No. And we do appreciate that the applicant is very likely of modest means. But that being said, my client has invested heavily in

15 [indiscernible] and for the purposes of today we’re asking for $10,000.

JUSTICE CORBETT: Well, that’s well beyond what we would have given had she shown up and you had won. MR. WHITE: Okay. Well, I’m asking.

20 JUSTICE CORBETT: So, your client is asking for costs of the appeal?

MR. WHITE: Correct. Yes. JUSTICE CORBETT: All right.

MR. WHITE: Thank you.

25 JUSTICE CORBETT: And do I take it the tribunal is seeking to not pay any costs and isn’t asking for costs?

MR. LEE: Yes. Consistent with Justice Nishikawa’s order to intervene, no costs for or against the

30 tribunal. Thank you.

JUSTICE CORBETT: Thank you very much. Costs to Aviva in the amount of $2500, inclusive, payable

within 30 days.

MR. WHITE: Thank you, Your Honour.

JUSTICE CORBETT: Madam Reporter, if we could have a transcript of the entire appearance prepared,

5 please. Copies to Aviva and the tribunal, another copy for the file, and then three copies, one for each of the bench. So, that’s six copies. It’s not expedited, just in due course.

COURT REPORTER: Yes, of course. Thanks, Your

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JUSTICE CORBETT: Okay. Thank you very much, Madam Registrar. That concludes our hearing in this matter today. Thank you, Counsel.

CLERK REGISTRAR: All rise. The court is now

15 adjourned. Thank you.

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FORM 2

CERTIFICATE OF TRANSCRIPT (SUBSECTION 5(2))

Evidence Act

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Certificate of Transcript

I, Cale Harper, certify that this document is a true and accurate transcript of the

recording of Ly Mai v. Aviva Canada Inc. in the Divisional Court, Superior Court of Justice held at 130 Queen Street West, taken from Recording 4899_3_20240229_085835 10_CORBETD.dcr, which has been certified in Form 1.

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April 12, 2024

(Date)

1704361580

(Authorized court transcriptionist’s ID number)

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Ontario , Canada.

(Province of signing)

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