Court of Appeal for Ontario

Date: 2017-02-27 Docket: C61166 Judges: LaForme, Pepall and Pardu JJ.A.

Between

Jocelyn Hebditch Plaintiff (Appellant)

and

Jeanne Birnie, Michael Birnie and Ted Seddon Defendants (Respondents)

Counsel

John J. Adair, for the appellant

Gary J. Marcuccio, for the respondent Michael Birnie

Andrew E. Steinman, for the Estate of Jeanne Birnie

Heard: February 21, 2017

On appeal from the order of Justice Alexander D. Kurke of the Superior Court of Justice, dated September 23, 2015.

Endorsement

[1] Following oral argument, we dismissed the appeal with reasons to follow. These are those reasons.

Chronology

[2] The appellant was the personal caregiver for Jeanne Birnie, now deceased. As a result of an accident on March 16, 2007, the appellant slipped and fell at the former residence of the deceased. On July 26, 2007, the appellant issued a statement of claim claiming damages against Jeanne Birnie "as an incompetent person with Michael Birnie as her power of attorney". It was served on August 21, 2007.

[3] Michael Birnie is Jeanne Birnie's son and a senior lawyer in North Bay. He spoke with counsel for the appellant and said that his mother was not incompetent. The action was subsequently discontinued.

[4] On February 25, 2008, the appellant issued a new statement of claim claiming damages from Jeanne Birnie, Michael Birnie, and another defendant. On July 10, 2008, Michael Birnie wrote to counsel for the appellant advising that he and Jeanne Birnie could assure counsel that they had absolutely no responsibility, nor did they take any active role, in the maintenance of the premises. In the event that the appellant did not agree to withdraw her action against him, he would be taking various steps including bringing a motion for summary judgment to dismiss the action as against him and would be obliged to seek costs.

[5] On August 14, 2008, counsel for Jeanne Birnie wrote to the appellant advising that she was determining whether her client required a litigation guardian. On September 2, 2008, counsel for Michael Birnie's insurers wrote to counsel for the appellant advising that their instructions were to seek an immediate dismissal of the action against Michael Birnie. By correspondence dated September 9, 2008, the statement of defence of Jeanne Birnie, a mentally incapable person, represented by her litigation guardian appears to have been sent to opposing counsel. In the pleading, she admits that she was a patient in the care of the appellant and states that the appellant was hired to care for her personal welfare and for the care and maintenance of the house. She denied the allegations of negligence and stated that the only duties and obligations required of her were those set forth in the Occupiers' Liability Act, R.S.O. 1990, c. O.2 ("OLA"). She denied any breach of those.

[6] On September 10, 2008, counsel for the appellant wrote to counsel for Michael Birnie's insurer stating that "[f]urther to our conversation of last week, and your letter of September 12th, 2008, I confirm that I am prepared to dismiss the action against Mr. Birnie." The consent to the dismissal was dated September 11, 2008. The consent order dismissing the action and any cross-claims by and against Michael Birnie was dated September 26, 2008 (the "Consent Order"). Jeanne Birnie died on December 8, 2009.

[7] Pursuant to the March 24, 2011 consent of the appellant, an order dated April 13, 2011 was issued permitting the Estate of Jeanne Birnie to amend her statement of defence to plead that she was not an occupier under the OLA.

Motion to Set Aside Consent Order

[8] Approximately seven years after the September 26, 2008 Consent Order, the appellant moved under r. 59.06(2)(a) to set aside the Consent Order on the basis of facts discovered after the order was made (Jeanne Birnie's incompetence at the date of loss) and asked, in the alternative, that the Estate of Jeanne Birnie be estopped from taking the position that she was incompetent at the time of the accident.

[9] The motion judge dismissed the motion. Among other things, he focused on whether "the new facts were available by the exercise of reasonable diligence at the time of the consent order" and determined that they were.

Grounds of Appeal

[10] Before us, the appellant asserted that the motion judge misapprehended the record and never considered the deceased's statement of defence in which the appellant alleges the deceased had admitted that she was an occupier under the OLA. Secondly, the appellant submits that the motion judge misdirected himself in his application of the test under r. 59 in failing to address the interests of justice.

[11] We reject these submissions.

[12] First, there was no clear and unambiguous admission in the statement of defence of the deceased. Second, it would appear that this admission argument was not made before the motion judge nor was it advanced in the appellant's factum. Third, we are not persuaded that consideration of such a factor would have made any difference to the outcome.

[13] Whether one applies the dicta in Tsaoussis (Litigation Guardian of) v. Baetz (1998), 41 O.R. (3d) 257 (C.A.) as the parties and the motion judge did or, more properly, the test applicable to setting aside a consent order (see for example Rick v. Brandsema, 2009 SCC 10, [2009] 1 S.C.R. 295 and Monarch Construction Ltd. v. Buildevco Ltd., 1988 CarswellOnt 369 (C.A.)), the same result ensues. As is evident from the chronology, there was no factual or legal basis reasonably available on which to set aside the Consent Order and the interests of justice do not suggest otherwise.

[14] Before us, counsel advised that the appellant was not pursuing her argument based on estoppel.

[15] For these reasons, the appeal is dismissed. The appellant is to pay the costs of the respondent, Michael Birnie, fixed in the amount of $5,000, and of the Estate of Jeanne Birnie, fixed in the amount of $2,500, both sums inclusive of disbursements and applicable tax.

"H.S. LaForme J.A."

"S.E. Pepall J.A."

"G. Pardu J.A."