Court File and Parties

CITATION: Rogerson v. Burridge, 2008 ONCA 680

DATE: 20081006

DOCKET: C48537 & C48538

COURT OF APPEAL FOR ONTARIO

Juriansz, Rouleau and Watt JJ.A.

BETWEEN:

Erin Rogerson

Plaintiff

and

Gary Norman Burridge, Clarence A. Bartley

Defendants (Respondents)

and

State Farm Mutual Automobile Insurance Company

Defendant (Appellant)

Gregory Brimblecombe for the appellant

Deborah G. Neilson and J. Daniel Dooley for the respondents

Heard: October 3, 2008

On appeal from the judgment of Justice Hugh M. O’Connell of the Superior Court of Justice dated February 12, 2008.

APPEAL BOOK ENDORSEMENT

[1] The motion judge considered the affidavits filed and noted the deponent of the affidavit filed by the appellant did not depose she believed in the truth of its contents. The affidavits filed by the respondents stated unambiguously that an unidentified driver was the sole cause of the accident. The appellant did not cross-examine the respondents and made no effort to examine the plaintiff. We see no error in the motion judge’s conclusion that there was no air of reality to the appellant’s position that negligence by someone other than the unidentified driver was a genuine issue for trial.

[2] The appeal is dismissed.

[3] We would fix costs in favour of the respondents in the amount of $5,000 each for the proceedings below and $7,500 for the appeal inclusive of disbursements and GST.