ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: C-3575/98
DATE: 2013-09-20

BETWEEN:

PATRICIA McLEOD
Plaintiff

– and –

SCOTIA LIFE INSURANCE COMPANY
Defendant

Michael A. Gauthier, for the Plaintiff.
Douglas O. Smith, for the Defendant.

HEARD: September 11, 2013

gauthier j.

The Motion:

[1] The Defendant, Scotia Life Insurance Company (“Scotia”), seeks an Order setting aside the Noting in Default and the Default Judgment obtained by way of an Order made by me on May 3, 2013.

Overview:

[2] Luc Normand had group accidental death insurance coverage with Scotia under Policy No. SLG000001. Pursuant to the Group Policy, Scotia issued three Certificates of Insurance (“the Certificates”):

(a) Certificate No. GB0038434-02 dated June 9, 1994 with a benefit amount of $25,000;

(b) Certificate No. GB0038434 dated January 9, 1993, with a benefit amount of $25,000; and

(c) Certificate No. SB0038434 dated December 9, 1991, with a benefit amount of $50,000.

[3] The beneficiary was the Plaintiff, Patricia McLeod (“McLeod”).

[4] Luc Normand died on February 12, 1997. He was found with no vital signs in his bathtub.

[5] At issue for the purposes of this proceeding is whether or not Luc Normand had committed suicide which would have resulted in denial of coverage under the accidental death insurance policy. Also at issue is whether or not the claim is barred by the terms and provisions of the insurance policies.

[6] McLeod was unaware of the existence of the group accidental death insurance until February 7, 1998.

[7] The Statement of Claim was issued on February 11, 1998, and served on June 11, 1998.

[8] There were two other companion actions: one against Canada Life (counsel: Douglas Los) and Colonia Life (counsel: J. Wall).

[9] No Statement of Defence was ever filed in the within action against Scotia.

[10] On April 25, 2013, McLeod sought, by way of a basket order, an Order noting Scotia in default, and an Order finding judgment in favour of McLeod in the amount of $161,862.63.

[11] The Order sought was obtained on May 3, 2013.

[12] On June 4, 2013, Scotia brought this motion to set aside the noting in default and the default judgment, which I heard on September 11, 2013.

The Facts:

[13] On February 7, 1998, McLeod consulted Mr. Orendorff in connection with the insurance policies.

[14] On February 9, 1998, Mr. Orendorff communicated with Hugh Briggs of Scotia about the policies.

[15] On February 10, 1998, Mr. Orendorff communicated with Mr. Briggs by fax, requesting that his correspondence be considered as written notice of Luc Normand’s death and as the appropriate Proof of Claim under the policies.

[16] On the same date, Mr. Briggs inquired about Luc Normand’s cause of death.

[17] On February 11, 1998, Mr. Orendorff faxed Mr. Briggs enclosing a copy of a Proof of Death Form. Mr. Orendorff indicated that Luc Normand had died accidentally by drowning.

[18] On June 2, 1998, Mr. Orendorff again wrote to Mr. Briggs enclosing the Claimant Statement of Accidental Death, which was on the form provided by Scotia. In that correspondence, Mr. Orendorff said this:

The reverse of that form requests that a Proof of Death Certificate be provided by a Physician’s Statement. I had forwarded to you previously by correspondence dated February 11, 1998, the Proof of Death Form.

[19] In this same piece of correspondence, Mr. Orendorff indicated that he had issued the Statement of Claim in this matter “out of an abundance of caution”, and that he was prepared to waive “the necessity for filing of a Statement of Defence until we have had sufficient time to review this matter together.”

[20] As indicated above, the Statement of Claim was served on June 11, 1998. On that date, Senior Legal Counsel for Scotia, Mr. Michael R.C. Davenport, wrote to Mr. Orendorff acknowledging that Scotia was not required to take any action with respect to the Statement of Claim. As well, Mr. Davenport said this in his letter:

Of critical importance in this matter is our receipt of a physician’s statement regarding the events surrounding Mr. Normand’s death. We cannot proceed to adjudicate the claim until that is received.

[21] On July 7, 1998, Mr. Orendorff corresponded with Mr. Davenport, confirming that a Statement of Defence “is not required at this time”.

[22] On January 25, 2000, Mr. Orendorff sent a fax to Mr. Davenport as well as to Mr. Los (the Canada Life action) and Ms. Wall (the Colonia Life action), suggesting a timetable in respect of all three proceedings. Mr. Orendorff proposed that Scotia file its Statement of Defence, and that within two weeks of that event, McLeod provide her Affidavit of Documents. Following that, all Defendants would file their Affidavits of Documents and discoveries would be arranged.

[23] On January 26, 2000, Mr. Davenport wrote to Mr. Orendorff as follows:

…please inform us when you would be expecting Scotia Life’s defence….I note from the 1998 correspondence that no actual claim has been made under this policy, including a physician’s statement regarding the death. If this has not occurred already, I would strongly suggest that it be done so that we may ascertain whether there is a cause of action in the first place.

[24] On August 30, 2000, Mr. Davenport wrote to Mr. Orendorff as follows:

We are uncertain of the status of the above litigation. I have enquired of Scotia Life’s claims department and they are still not in receipt of any physician’s statements which would assist Scotia Life in adjudicating on the claim. Once this has been done, the insurance amount can be paid to the beneficiary (or into Court) or, if not, the parties can determine their positions. Please let me know where this matter rests.

[25] On January 31, 2001, Mr. Orendorff wrote to counsel on all the actions, providing them with a draft Affidavit of Documents in the Colonia Life action and enclosing the following documents from the Clinical Notes and Records of Luc Normand’s family physician: (a) a letter dated July 7, 1997 from Dr. P. McLean to Canada life, and (b) a copy of a Toxicology Report dated April 22, 1997.

[26] Mr. Orendorff requested that all counsel review their file and determine their positions. This refers to the issue of whether or not Luc Normand had committed suicide.

[27] On April 18, 2001, Mr. Orendorff provided a copy of all documents listed in the Affidavit of Documents delivered on January 31, 2001.

[28] The next event is on July 29, 2004, when Mr. Orendorff sent a fax to counsel in all three actions, suggesting that counsel review available dates for Examinations for Discovery by the end of February, 2005.

[29] A further request to set up the Examination for Discovery of McLeod was made by way of fax from Michael Gauthier (who had taken over carriage of the file from Mr. Orendorff) on March 14, 2005. That correspondence also requested that all counsel provide an updated Affidavit of Documents. I note that, at that point, Scotia had not provided any Affidavit of Documents. Scotia had also not responded to the request for available dates for discovery.

[30] On May 13, 2005, Mr. Davenport wrote to Mr. Orendorff:

I am assuming that no statement of defence is required by Scotialife as per your letter of July 7, 1998. If you are of a different view please let me know.

[31] On October 21, 2008, Mr. Gauthier corresponded with Mr. Davenport and enclosed “a Settlement Brief for your review and consideration”, also asking that Mr. Davenport contact him.

[32] Four years went by. On October 4, 2012, Mr. Gauthier corresponded with Mr. Davenport by fax. The relevant portions of that communication are:

I note we have not heard from your office for some time.

I note we have not received any form of documentation from your office with respect to this claim.

…it is clear this is essentially a documentary case.

This case hinges on whether or not Mr. Normand committed suicide by overdosing on the drug “Restoril”, or whether he died by way of natural causes. In a case such as this, where a suicide exclusion is plead as a defence, there is a revers[sic] onus where the insurer must prove suicide.

If these matters are unable to be resolved I would ask that you provide your Statement of Defence, together with your client’s Affidavit of Documents and Schedule “A” productions, and that you contact my office in order that we may co-ordinate Discoveries in this matter, so that we may proceed forward to Trial.

[33] On November 29, 2012, Mr. Gauthier corresponded with Mr. Davenport, confirming his intention to proceed with the action and requesting Scotia’s Statement of Defence within 30 days, failing which he would proceed to note Scotia in default.

[34] On December 4, 2012, Mr. Gauthier emailed another Scotia counsel, Deliska Beauregard, in an effort to resolve the case.

[35] On December 5, 2012, Ms. Beauregard emailed Mr. Gauthier to advise as follows:

Scotia Life’s position in this case is that no accidental death claim was submitted under the insurance policy (Scotia Accident Insurance Plan) in the prescribed timeline (1 year limitation period), so despite any dispute as to whether the deceased drowning in a bath tub after consuming prescription sedatives was or wasn’t an accident, there is no basis for a legal action.

If this matter proceeds, Scotia Life will be retaining external counsel to bring a motion to have the claim dismissed and will then be seeking its costs.

[36] On December 7, 2012, Mr. Gauthier corresponded with Ms. Beauregard by email and fax, setting out in detail McLeod’s position regarding the claim. Mr. Gauthier requested a response to his December 4, 2012 correspondence.

[37] On January 25, 2013, Mr. Gauthier again corresponded with Ms. Beauregard, requesting that the contents of his December 4, 2012 letter be forwarded to the person who was to take over the file from Ms. Beauregard. As well, Mr. Gauthier advised as follows: “I am meeting with my client shortly to confirm her instructions on proceeding.”

[38] On February 12, 2013, Mr. Gauthier again corresponded with Ms. Beauregard by fax:

Should we be unable to resolve this matter I would request your Statement of Defence and your Affidavit of Documents, together with all Schedule “A” productions, not later than March 15, 2013. Failing resolution by that time or receipt of your Statement of Defence our instructions are to proceed to note your client in Default and seek recovery on that Judgment.

[39] Scotia concedes that the fax of February 12, 2013 was sent by Mr. Gauthier and was received by Scotia; however, it was never directed to Ms. Beauregard. She was out of the country on that date, and at no point did she receive the fax of February 12, 2013. Had she received the letter, she claims that she would have immediately retained external counsel to defend the action.

[40] On April 24, 2013, McLeod brought a motion without notice for an Order noting Scotia in default and for judgment in the amount of $161,862.63.

[41] The relief sought in the Notice of Motion dated April 24, 2013 was granted by me on May 3, 2013.

[42] On May 13, 2013, Mr. Gauthier provided Ms. Beauregard with a copy of the May 3rd Order.

[43] Scotia retained the services of BLG on May 15, 2013, and on May 16, 2013, Mr. Smith of BLG and Mr. Gauthier discussed dates for the motion to set aside the default judgment.

Scotia’s Position:

[44] Scotia submits that the Order of May 3, 2013 should be set aside pursuant to Rule 19.08 of the Rules of Civil Procedure, and puts forward two distinct grounds for the motion.

[45] Firstly, Scotia says that it meets the following three part test set out in Nelligan v. Lindsay, [1945] O.J. No. 91, [1945] O.W.N. 295 [Nelligan], at paragraph 4:

(a) the motion to set aside the judgment is made as soon as possible after the moving party becomes aware of the existence of the judgment;

(b) there must be a reasonable and plausible explanation for the default; and

(c) there is at least an arguable defence on the merits.

[46] Secondly, Scotia says that the Judgment should be set aside as it was irregularly obtained for the following reasons:

(a) Scotia was not noted in default prior to the Plaintiff moving for default judgment;

(b) the facts alleged in the Statement of Claim do not entitle the Plaintiff to judgment; and,

(c) at the time the judgment was obtained, the action was deemed to have been dismissed as abandoned pursuant to Rule 48.15(6).

McLeod’s Position:

[47] McLeod concedes that the motion was brought without delay, yet maintains that Scotia cannot provide a satisfactory explanation for the default. By not responding to the requests to move the litigation along, Scotia essentially prevented McLeod from proceeding with her action.

[48] In addition, McLeod states that Scotia amended its position regarding the basis for denying the claim, from “no accidental death” (suicide), to the failure to provide a satisfactory Proof of Claim within the one year limitation period set out in the policies.

[49] Finally, McLeod submits that Scotia does not have a defence to the claim. Luc Normand died from drowning, which is an accident, and therefore the benefits are payable to McLeod.

[50] With regard to the submission concerning irregularity, McLeod responds that there is no obligation on a party to give notice of a motion for default judgment once the party has been noted in default. Therefore, the noting in default and the default judgment can be sought and obtained at the same time.

[51] The Statement of Claim pleads a breach of contract (failure to pay the benefits pursuant to the policies), and by virtue of the noting in default, Scotia is deemed to have admitted the truth of all allegations of fact made in the claim: see Rule 19.02(1).

[52] Finally, McLeod suggests that the deemed dismissal provisions of Rule 48.15(6) do not apply to defended actions. As Scotia had a stated intention of defending the action, the within action became a “defended action” and the Registrar would have been obliged to provide notice of the upcoming dismissal. No such notice was given. In any event, even if the action was deemed to be dismissed at the time the default judgment was obtained, the judgment had the effect of reviving the action.

Analysis:

[53] In considering the exercise of its discretion to set aside a default judgment, and in determining whether or not the three part test referred to earlier has been met, “the Judge ought to lean in favour of an affirmative answer simply because prima facie no one should suffer judgment against him except after a full hearing and after a careful determination on the merits. I think the cases make it clear as well that the satisfaction of these requirements does not automatically dictate success to the applicant. There is still the broad obligation to look at all the circumstances and to be satisfied that no injustice is done to the innocent party – the respondent to the motion – in any order that is finally made” (cited in Dealers Supply (Agriculture) Ltd. v. Tweed Farm and Garden Supplies Ltd. [1987] O.J. No. 2346, 22 CPC (2d) 257 (Ont. Dist.Ct.) at paragraph 13).

[54] Do the interests of justice favour granting the Order?

[55] It is within the context of this question that I am to apply the test set out in Nelligan, summarized above at paragraph 45.

[56] Scotia succeeds on the first part of the test. It is clear that the motion to set aside the judgment was brought immediately after Scotia was advised of it.

[57] While there is a dispute about the second and third prongs of the test, for reasons that follow, I conclude that Scotia has successfully discharged its burden on both parts.

Plausible Explanation for the Default:

[58] There were significant periods of inactivity in this action:

a) 18 months between Mr. Orendorff’s confirmation to Mr. Davenport that a Statement of Defence was not required at that time, and the initial letter from Mr. Orendorff suggesting a litigation timetable.

b) 12 months between the time of the suggested timetable and the delivery of the Affidavit of Documents in the Colonia Life action (January, 2001).

c) 39 months between the delivery of the Affidavit of Documents and a second request by Mr. Orendorff for available dates for examinations for discovery (July, 2004).

d) 41 months between Mr. Davenport’s query about the necessity of filing a Statement of Defence (May, 2005) and Mr. Gauthier’s first attempt at engaging Scotia in settlement discussions (October 21, 2008).

e) 48 months elapsed until the next request for delivery of a Statement of Defence (October 4, 2012). That request was not equivocal as it depended on an inability to resolve the matter.

[59] It was not until November 29, 2012, 14 years after the action was commenced, that an unequivocal request for delivery of a Statement of Defence was made. Further, that request put Scotia on notice that it would be noted in default. It did not put Scotia on notice that noting in default and summary judgment would be sought together.

[60] In such a case, where the noting in default and the default judgment are obtained contemporaneously, a defendant should be given the opportunity to bring a motion to set aside the noting in default under Rule 19.03. The requirements under that Rule are less onerous than on a motion to set aside a default judgment: see Toronto Dominion Bank v. Radiancy LHE Canada Inc., [2006] O.J. No. 4010, 151 A.C.W.S. (3d) 797 (Master) at paragraph 15.

[61] In a Rule 19.03 motion, the court has a broad discretion and will consider the behaviour of the parties, the length of the defendant’s delay, the reasons for the delay, as well as the complexity and value of the claim. There is no requirement that the defendant establish an arguable defence.

[62] Scotia was deprived of the opportunity to bring a motion to set aside the noting in default, which motions are generally granted to permit disputes to be adjudicated on their merits: see Garten v. Kruk, [2009] O.J. No. 4438, 257 O.A.C. 59 (Div. Ct.).

[63] It would have been in the interests of justice for Scotia to have had the opportunity to move to set aside the noting in default. As well, the events between December 5th, 2012 and February 12, 2013 reinforce Scotia’s position that the delay in delivering a Statement of Defence was apparently reasonable. In her correspondence of December 5, 2012, Ms. Beauregard was not only reiterating Scotia’s intention to defend the action, she was advising Mr. Gauthier that, if the matter went any further, a motion to dismiss the claim with costs would be brought. The response was a detailed description of McLeod’s position and a further attempt to resolve the case. This was followed by the statement contained in the January 25, 2013 communication to the effect that counsel was seeking “instructions on proceeding.”

[64] The numerous and significant periods of inactivity in this action, coupled with the indication from counsel, following the one unequivocal request for delivery of a defence, that he was seeking instructions on proceeding, do not signal an imminent default motion.

[65] It is uncontradicted that Ms. Beauregard did not receive the fax of February 12, 2013. Clearly, it would have been preferable for someone to have addressed the matter given that the fax was received by Scotia. The reality, however, is that for some unknown reason, the fax did not find its way to anyone who could have dealt with it.

[66] Again, given the tone of the December 7, 2012 and the January 25, 2013 correspondences, Ms. Beauregard had no reason to anticipate the unequivocal request for a defence with a time limit attached as set out in the February 12, 2013 letter.

[67] Finally, while it is correct that there had been earlier requests that Scotia deliver an Affidavit of Documents and provide dates for examination for discovery, those requests were not followed up in a timely manner.

[68] Scotia’s default has been satisfactorily explained.

Arguable Defence:

[69] I turn now to the issue of whether Scotia has an arguable defence to the action.

[70] The record contains the following evidence:

(a) Ambulance Call Report. It sets out that on February 12, 1997, Luc Normand was found deceased, submerged in his bathtub. It indicates as well that “Pt’s Wife stated the Pt told her he was going to take all of his Restoril at once in suicide attempt.” The ambulance crew assessed the primary problem as being Vital Signs Absent, and the secondary problem as being “Possible drowning/and overdose”.

(b) Toxicology Report dated April 22, 1997. It indicates that the deceased had 0.3 mg/100 mL of Temazepam (Restoril) in his blood. The notation of the Toxicologist is: “The detected blood concentration of temazepam greatly exceeds the recommended therapeutic maximum of 0.09 mg/mL and would be expected to cause significant depression of the central nervous system.”

(c) Letter from the deceased’s physician, dated July 7, 1997, addressed to Canada Life. In that letter, Dr. McLean opined that the quantity of Restoril that was found in Luc Normand’s system was not a lethal dose of medication. He says this: “I really have no idea why Mr. Normand should have been found dead in the bathtub. He could possibly have had a cardiac arrest, although he did have abnormal stress cardiogram a few months earlier.” Dr. McLean’s opinion was that Luc Normand did not commit suicide, and he pointed out behaviours of the deceased in the days leading up to his death which were inconsistent with suicidal ideation.

(d) Letter from Dr. Bruce M. Hasspieler, Toxicologist, dated April 26, 2008, in which Dr. Hasspieler agrees with the opinion of Dr. McLean that 0.3 mg/100mL was not sufficient to cause death. He says that it would cause drowsiness or sleep that would not be sufficient to cause drowning.

(e) Coroner’s Investigation Statement dated February 20, 1997: “It seems likely the cause of death was drowning. I believe this suicide by drowning was assisted by taking a large overdose of sedative drugs, notably Restoril.

(f) Attending Physician’s Statement, dated May 21, 1997, completed by Dr. McLean. In that statement, the cause of death is described as: “Probably drowning. 2o excessive ….(illegible) caused by excessive sedation from excessive temazepam.”

(g) McLeod’s statements to the effect that Luc Normand never indicated to her that he would consider suicide, that in fact he was afraid to die. She indicates that Luc Normand was cheerful on the day before he died, and he had made plans to attend Sudbury on February 13th.

[71] Scotia’s draft Statement of Defence advances the following defences:

(a) The Statement of Claim does not disclose a cause of action;

(b) The Plaintiff cannot establish that Luc Normand died as a result of an accidental bodily injury. The medical information provided to Scotia raises an issue of possible suicide by overdose of prescribed medication, or natural causes, either of which would disentitle McLeod from receiving the benefits under the policies.

(c) McLeod’s Statement of Accidental Death was submitted more than one year after the insured’s death, contrary to the terms of the policy. As well, the “Proof of Death – Physician’s Statement” has never been provided by McLeod to Scotia.

[72] McLeod submits that Scotia in fact does not have a defence to the claim.

[73] Firstly, the Statement of Claim pleads the death of the insured, the existence of the policies, and the failure to pay the benefits. The claim is for breach of the contract of insurance.

[74] Secondly, McLeod submits that Luc Normand died as a result of drowning. Drowning is an accident and therefore the benefits are payable. If Scotia alleges suicide then it has the onus to prove it: see Greening v. Commercial Union Assurance Co., [1987] N.J. No. 428 (Nfld. C.A.), 29 C.C.L.I. 129.

[75] Finally, McLeod points to the fact that, although she did not provide the “Proof of Death – Physician’s Statement” on Scotia’s form, she did provide it in the context of the other actions with all the information required. The Notice of the Claim and Proof of Death were given on February 10 and 11, 1998, within the one year limitation period.

[76] All Scotia has to establish for this branch of the test is that there is an air of reality to its proposed defence. This is a fairly low threshold: see Business Development Bank of Canada v. Vincent, [2008] O.J. No. 3871 (ONSC), 170 A.C.W.S. (3d) 265.

[77] The case of Canadian Pacific Railway Company v. Cobra Drain and Development Corp., [2007] O.J. No. 1790, instructs that I am not to engage in a detailed examination of the merits of the proposed defence.

[78] In his submissions, Mr. Gauthier invited me to consider the specific wording in each of the three policies, and to consider the ordinary meaning of the word “accident”. He invited me to review the medical evidence, including the toxicology report and the opinion of Luc Normand’s family physician, that the deceased did not commit suicide. I was invited to consider the contra proferentem rule and apply it to the insurance contracts.

[79] I am of the view that I was being invited to engage in a detailed examination of the defence on its merits, which is not open to me on this motion.

[80] The evidence does contain the suggestion that Luc Normand may have intended to commit suicide when he ingested the higher than prescribed amount of Restoril and got into the bathtub. If so, Scotia says, no benefits are payable. I conclude that the low threshold test of “air or reality” to the proposed defence has been met.

[81] I cannot say that Scotia does not have an arguable defence on the basis of possible suicide, even taking into account that it will have the burden of proving that at trial.

[82] I need not comment on the other proposed defences.

Irregularity:

[83] Having found that Scotia has met the test for setting aside a default judgment set out in Nelligan, it is not necessary for me to consider the alternate argument of irregularity.

[84] Having said that, I would have granted Scotia’s motion on the basis of that ground as well.

[85] While the Rules of Civil Procedure do not prohibit obtaining an order noting in default and a default judgment contemporaneously, generally, Plaintiff’s counsel would inform Defendant’s counsel of the noting in default prior to obtaining default judgment.

[86] Although I am not prepared to find that the timing of the noting in default and the obtaining of the default judgment in this case is an irregularity, I do feel it was somewhat unusual.

[87] I wish to address the third argument put forward by Scotia, the deemed dismissal argument.

[88] I do not accept that this action was a “defended” action. The endorsement of Ricchetti J. in Pinevalley Trim & Doors Ltd. v. Tibollo & Associates Professional Corporation, [2012] O.J. No. 585, 2012 ONSC 1002, makes it clear that it is the filing of a Statement of Defence which makes an action a “defended” action. At paragraph 16, Ricchetti J. says the following:

It is clear that as of January 1, 2010, the Rules now provided for a mechanism to administratively deal with actions where the court file only contained an issued claim but there had not been filed a Defence or Notice to Defend. Subject to the conditions set out in the Rule, Rule 48.15 now permitted the Registrar to dismiss an action which had not been defended.

[89] The court file contained only the Statement of Claim, issued on February 11, 1998. There was no Statement of Defence or Notice to Defend. No step in the action had been taken between January 1, 2010 and January 1, 2012. The provisions of Rule 48.15(6) were engaged, and the action was deemed to be dismissed as abandoned on January 1, 2012.

[90] A motion to set aside the deemed dismissal as provided for in Rule 48.15 should have been brought before any noting in default and summary judgment.

[91] As no motion to set aside the deemed dismissal was brought, there was no action within which to grant summary judgment on May 3, 2013.

[92] On that basis, I would set aside the noting in default and the judgment.

Conclusion:

[93] Scotia’s motion is granted on both grounds: it is within the interests of justice to do so, and the judgment was obtained irregularly in that the action was deemed to be dismissed when the Order for judgment was signed.

[94] While costs thrown away are frequently awarded to a Plaintiff on a motion to set aside default judgment, I decline to do so in this case.

[95] Firstly, there has been an extreme delay by McLeod in prosecuting this action. As stated earlier in these reasons, some 14 years have elapsed since the claim was brought.

[96] Secondly, given that Scotia had indicated its intention to retain outside counsel to defend the action, the more regular procedure would have been for McLeod to give notice of having noted Scotia in default, before obtaining default judgment.

[97] McLeod should have obtained an Order under Rule 48.15(6) before proceeding with the noting in default.

[98] In these circumstances, it would not be equitable to award costs thrown away to the Plaintiff.

Order:

1. The Noting in Default of the Defendant in this action is set aside.

2. The Default Judgment signed on May 3, 2013 is set aside.

3. The Defendant shall deliver a Statement of Defence in this action within 30 days from today’s date.

4. If the parties are unable to agree on the costs of the motion to set aside, they shall communicate with the Trial Co-ordinator within thirty (30) days of today’s date, to obtain a date and time to argue costs, failing which neither party will be awarded its costs. Counsel may participate in any costs hearing by teleconference call.

Madam Justice L. L. Gauthier

Released: September 20, 2013

COURT FILE NO.: C-3575/98
DATE: 2013-09-20

ONTARIO
SUPERIOR COURT OF JUSTICE

BETWEEN:

PATRICIA McLEOD
Plaintiff

– and –

SCOTIA LIFE INSURANCE COMPANY
Defendant

Ruling on motion

GAUTHIER J.

Released: September 20, 2013