ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CV-11-442393
DATE: 20120827
BETWEEN:
DORNOCH LIMITED FOR AND ON BEHALF OF THE UNDERWRITING MEMBERS OF SYNDICATE 1209 and WESTPORT INSURANCE CORPORATION Applicants – and – ADVANCED EXPLORATIONS INC., DiGIANCINTO VENTURES INC. and BRETT BAYNTON Respondents
Adrienne Lee , for Dornoch Limited et al.
Robert J. Allen , for DiGiancinto Ventures Inc.
HEARD: July 5, 2012
B. O’MARRA, J.
REASONS FOR DECISION
[ 1 ] A private aircraft was damaged to the extent of a constructive total loss. The Applicant insurer is ready and willing to pay the insurance proceeds but has met with competing claims.
THE ISSUE
[ 2 ] Should the insurance proceeds be paid into Court or to the Respondent DiGiancinto Ventures Inc.?
THE FACTS
[ 3 ] The Respondent DiGiancinto owns a Cessna Aircraft.
[ 4 ] In April of 2007, DiGiancinto sent a lease for the Cessna to Baynton. It provided for return of the Cessna after two years. There was no provision for purchase.
[ 5 ] Baynton registered the Cessna in his own name by producing a false document for registration.
[ 6 ] In September of 2007, DiGiancinto cancelled the lease for default of payment and demanded return of the Cessna.
[ 7 ] In November of 2007 the Cessna was seriously damaged. The operator was a sub-lessee of Baynton.
[ 8 ] In August of 2008 the Cessna was further damaged as a result of insecure storage.
[ 9 ] DiGiancinto has commenced civil suits against Baynton for arrears of rent and damage to the Cessna.
[ 10 ] The amount payable under the insurance policy is $170,000.00.
[ 11 ] Baynton did not appear on this Application after being served. He sent an e-mail dated June 29, 2012 to counsel for the insurers advising that he is unable to attend and agrees that the insurance proceeds be paid into Court.
POSITION OF THE PARTIES
[ 12 ] The Applicant seeks the following:
Direction to pay the proceeds into Court, or to whomever the Court directs.
Release of their interest.
Costs.
The Respondent seeks the following:
Direction to pay such portion of the proceeds to the Respondent directly and the balance, if any, into Court.
Costs.
THE LAW
[ 13 ] On such a motion where a claimant fails to attend the hearing the Court may make an order barring any claim against the Applicant. This would not affect the rights of the claimants as between themselves.
Rule 43.04(2)(e)
ANALYSIS
[ 14 ] The Respondent presented significant evidence that Baynton created a false document to register ownership of the Cessna. There is significant uncontradicted evidence of arrears of rent owed by Baynton. Baynton did not appear on this Application, nor has anyone appeared on his behalf.
RESULT
Order to go as follows:
The Applicant is to pay to the Respondent DiGiancinto the proceeds of $170,000 plus interest less their costs.
The Applicant, their officers, directors, employees, agents, successors and assigns are absolved of liability in respect of claims to the insurance proceeds by the Respondents, their principals, or agents, and any who derive their rights from the Respondents.
The Respondents are directed to facilitate the transfer of title to the Cessna to the Applicants.
The Applicants are entitled to their costs of this Application fixed at $7,000.00 all inclusive on a partial indemnity basis. These costs are to be paid out of the insurance proceeds currently held by the Applicants.
[ 15 ] The claimants are at liberty to pursue actions against each other arising from this matter.
B. P. O’Marra J.
Released: August 27, 2012
Dornoch Limited v. Advanced Explorations Inc., 2012, ONSC 4532
COURT FILE NO.: CV-11-442393
DATE: 20120827
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
DORNOCH LIMITED FOR AND ON BEHALF OF THE UNDERWRITING MEMBERS OF SYNDICATE 1209 and WESTPORT INSURANCE CORPORATION Applicants – and – ADVANCED EXPLORATIONS INC., DiGIANCINTO VENTURES INC. and BRETT BAYNTON Respondents
REASONS FOR DECISION
B. P. O’Marra J.
Released: August 27, 2012