Court of Appeal for Ontario

Citation: Vair v. Ramsammy, 2011 ONCA 788

Date: 2011-12-14

Docket: C54048

Between:

Violet Vair

Plaintiff/Appellant

and

Elizabeth Ramsammy, Heather Bryan and Coseco Insurance Company

Defendants/Respondents

Before: Cronk, Lang and Watt JJ.A.

Counsel:

Jane Poproski, for the appellant

Bruce Keay, for the respondents

Heard and released orally: December 8, 2011

On appeal from the order of Justice A.C.R. Whitten of the Superior Court of Justice, dated October 13, 2010.

ENDORSEMENT

[1] The appellant, Violet Vair, at her own initiative, settled all her claims against the respondent insurance company in January 2003. As a condition of that settlement, she provided a form of final release in favour of the insurer.

[2] Thereafter, in an action commenced in 2004, she sought to set aside the release and the settlement on the basis of alleged improprieties and bad faith by the insurer. Her counsel later agreed to the dismissal of that action and the dismissal was confirmed by consent court order dated October 17, 2007.

[3] Almost two years later, on May 14, 2009, the appellant, through the same counsel who acted for her in respect of the 2004 action, commenced a second action against her insurer and others in which she sought damages for the alleged tort of conspiracy to cause economic harm, among other relief. The underlying facts advanced in support of this claim were essentially the same as those pleaded in the appellant’s 2004 action, with the exception of the bald assertion of the requisite elements of a conspiracy.

[4] Also in her 2009 pleading, the appellant admitted that she discovered the alleged conspiracy on May 13, 2003 and pleaded that a six-year limitation period for her conspiracy claim ran from that date. This pleading was never amended to withdraw or modify this admission.

[5] Thus, by the time that the appellant’s 2009 action was commenced on May 14, 2009, by the appellant’s own admission in her pleading, the six-year limitation period had expired.

[6] Perhaps more importantly, in response to the respondents’ summary judgment motion, the appellant led no evidence to support her conspiracy claim. Simply stated, on the record before the motion judge, there was no evidentiary foundation for a genuine issue requiring trial on the conspiracy allegation.

[7] In these circumstances, even assuming that it was open to the appellant to raise the conspiracy allegation in 2009 for the first time, the motion judge did not err by granting the respondents’ summary judgment motion.

[8] The respondents are entitled to their costs of the appeal, if sought having regard to the appellant’s circumstances, fixed in the amount of $2,000, inclusive of disbursements and all applicable taxes.

“E.A. Cronk J.A.”

“S.E. Lang J.A.”

“David Watt J.A.”