Court File and Parties

Citation: Halteren v. Webber, 2007 ONCA 508 Date: 2007-07-05 Docket: C44645

Court of Appeal for Ontario Before: O’Connor A.C.J.O., Moldaver and Rouleau JJ.A.

Between:

Jeanne Van Halteren Appellant

and

Jason David Webber Respondent

Counsel: Steven Polak for the appellant Joseph Grossman for the respondent

Heard: July 4, 2007

On appeal from the order of Justice R. Clark of the Superior Court of Justice dated November 22, 2005.

Appeal Book Endorsement

[1] With respect, we are of the view that the motion judge erred in not considering the uncontradicted evidence of the appellant that she had called the court while in hospital with a view to explaining her absence from court on the trial date.

[2] Moreover, we have fresh evidence, which we admit, that confirms that she was in hospital and suffering from a severe mental disorder at the time.

[3] The appeal is allowed. The judgment dismissing the appellant’s action is set aside.

[4] We do not consider this an appropriate case for security for costs as the appellant is impecunious.

[5] We direct that the costs thrown away because of the missed trial date be left to the trial judge.

[6] We direct the respondent to pay the appellant’s costs of this appeal which are fixed in the amount of $5,000, inclusive of disbursements and GST.