DATE: 20010223

DOCKET: C34624

COURT OF APPEAL FOR ONTARIO

RE: ANNIE VUONG (Plaintiff/Respondent) v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY (Defendant/Appellant)

BEFORE: CATZMAN, DOHERTY and SIMMONS JJ.A.

COUNSEL: Paul J. Pape and Paul J. LoPresti for the appellant Joseph Falconeri and Annelis Thorsen for the respondent

HEARD: February 9, 2001

On appeal from the order of Justice Frank K. Roberts dated July 5, 2000.

E N D O R S E M E N T

RELEASED ORALLY: February 9, 2001

[1] At the end of the argument, the court gave brief oral reasons for its disposition of the appeal. That disposition is noted on the appeal book. Unfortunately, the reasons of the court were not recorded. This endorsement is an attempt to replicate the substance of that oral endorsement.

[2] The appellant (insurer) concedes for the purposes of this appeal that there were deficiencies in the notice provided by the insurer to the respondent such that the insurer did not strictly comply with the terms of the “settlement regulation”. The insurer further concedes that it was incumbent on it to establish on the motion for summary judgment that the deficiencies in the notice were not material to the respondent’s decision to accept the settlement and could not be relied on by the respondent as a basis for setting aside the settlement.

[3] The insurer submits that the evidence adduced on the motion establishes beyond any question that the alleged deficiencies were immaterial to the respondent’s decision to accept the settlement. In making this submission, the insurer places heavy reliance on answers given by the respondent during her cross-examination on her affidavit.

[4] The exact nature, number and effect of the deficiencies in the notice (if any) cannot be determined on the material filed on the motion. Nor, in our view, can the materiality of any of the deficiencies be determined on the basis of the material filed on the motion.

[5] The motion judge went too far when he not only refused the insurer’s motion for summary judgment but set aside the settlement. He should have dismissed the motion and made no further order.

[6] The order of Roberts J. is set aside and an order substituted dismissing the insurer’s motion for summary judgment. The costs of the motion will be costs to the respondent in the cause. The costs of the appeal will be to the insurer in the cause.

“M.A. Catzman J.A.”

“Doherty J.A.”

“Simmons J.A.”