Court of Appeal for Ontario

Date: 2017-12-13 Docket: C64198

Panel: Hourigan, Brown JJ.A. and Himel J. (ad hoc)

Between

Bryan Whitfield Defendant (Respondent)

and

Dr. Agnes Jane Whitfield Plaintiff (Appellant)

Counsel

Dr. Agnes Jane Whitfield, appearing in person

Matthew Gourlay, for the respondent, Bryan Whitfield

Heard and released orally: December 13, 2017

On appeal from: the judgment of Justice Cory A. Gilmore of the Superior Court of Justice, dated August 2, 2017.

Reasons for Decision

[1] The trial judgment dated May 1, 2014 granted Dr. Whitfield damages for sexual assault against her brother, Bryan Whitfield and dismissed his counter-claim for defamation.

[2] By order dated July 20, 2016, this court allowed Mr. Whitfield's appeal, set aside the trial judgment, dismissed Dr. Whitfield's claim against him, and granted judgment in his favour on his counter-claim in the amount of $5,000.

[3] By order dated February 2, 2017, the Supreme Court of Canada dismissed Dr. Whitfield's application for leave to appeal the order of this court.

[4] Dr. Whitfield thereupon moved in the Superior Court of Justice under rules 59.06(1) and (2)(a) of the Rules of Civil Procedure to vary the trial judgment. The motion judge dismissed the motion. Dr. Whitfield appeals.

[5] We dismiss the appeal. The motion judge correctly concluded that she did not have jurisdiction to hear the appellant's motion that sought to vary a trial judgment that had been set aside by this court. The order to which Dr. Whitfield is subject is that of this court, not the trial judgment.

[6] As well, we agree with the motion judge, for the reasons she gave, that there was no fraud that would engage r. 59.06(2)(a) or an accidental slip that would fall within r. 59.06(1).

[7] The appeal is dismissed.

[8] Dr. Whitfield shall pay Mr. Whitfield his costs of the appeal and related motion for a stay fixed at $6,732.00, inclusive of disbursements and applicable taxes.

"C.W. Hourigan J.A." "David Brown J.A." "Himel J."