Court File and Parties

Citation: Coachman Insurance Company v. Lombard Canada, 2009 ONCA 80 Date: 2009-01-27 Docket: C49311

Court of Appeal for Ontario Before: Gillese, MacFarland and LaForme JJ.A.

Between: Coachman Insurance Company, Applicant (Respondent) and Lombard Canada, Respondent (Appellant)

Counsel: Jamie Trimble, for the appellant Michael Best, for respondent

Heard: January 27, 2009

On appeal from the order of Justice Rose Boyko of the Superior Court of Justice dated July 31, 2008.

Appeal Book Endorsement

[1] This appeal must be allowed. There was no evidence before the motion judge on which she could make the determinations she was asked to make or purported to make.

[2] In light of the complete absence of evidence, it was a palpable and overriding error to make findings of fact. Furthermore, even if the documents before the motion judge had been properly before her, the conclusory nature of the reasons make them impossible of review. The reasons are wholly inadequate.

[3] Moreover, the reasons themselves are logically inconsistent. For example, the same document is found first to be an agreement and then to be nothing more than an invoice.

[4] In the circumstances, it is not possible to decide the questions of law on which the parties seek a determination.

[5] Costs of the appeal to the appellant at the agreed on sum of $5,000, all inclusive. Costs below to the appellant, which were also agreed on, fixed at $4,000, all inclusive.