ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: C-650-10
DATE: 2014-02-13
BETWEEN:
Annie Seguin
Plaintiff
– and –
Estate of Norman Seguin, Denis Seguin, Estate Trustee of the Estate of Norman Seguin, Nicole Seguin, Estate Trustee of the Estate of Norman Seguin
Defendants
Richard Guy, for the Plaintiff (Moving Party)
Michelle McAnulty, for the Defendants (Responding Parties)
HEARD: February 10, 2014
REASONS ON MOTION
o’neill j.
[1] On February 10, 2014, I heard arguments and submissions from counsel in relation to a motion brought by the plaintiff to set aside the administrative dismissal of the action, dated August 23, 2012.
[2] The position of the parties is set out in the following documents:
i) The motion record of the plaintiff.
ii) The defendants’ responding affidavits.
iii) The factums of each party.
[3] The facts themselves are largely not in dispute. Nor is the application of the requisite legal principles to those facts and the outstanding issues.
[4] The facts themselves are set out in:
i) The affidavits of Annie Seguin sworn November 29, 2012 and February 8, 2013.
ii) The affidavits of Jessica Boucher sworn January 23, 2013 and April 3, 2013.
[5] Four of the five factors to be considered on a motion to set aside an administrative order dismissing an action are:
i) Explanation of the litigation delay.
ii) Inadvertence in missing the deadline.
iii) Has the motion been brought promptly?
iv) Is there prejudice to the defendants?
[6] I accept generally the plaintiff’s arguments that the above four factors weigh in favour of the plaintiff on this motion. There is however a fifth tier or factor to be reviewed in certain circumstances namely, the merits of the action where the evidence is clear and unchallenged. In 744142 Ontario Ltd. v. Ticknor, 2012 ONSC 1640, Master Muir stated:
In my view, the merits of the action should not ordinarily be considered on a motion to set aside an administrative dismissal. However, the merits may be an appropriate consideration where the evidence is clear and unchallenged.
[7] For the purposes of this motion, the important evidence in relation to the merits are:
i) The order of Hennessy J. dated June 13, 2007.
ii) Reasons for Judgment of Hennessy J. dated June 13, 2007.
iii) The Full and Final Release dated April 25, 2008.
iv) Portions of Annie Seguin’s transcript dated March 26, 2013.
[8] Justice Hennessy’s order does not mention or outline the London Life Insurance policy. The beneficiaries under this policy were designated years prior to Mr. Seguin’s death, and shortly following his separation from Annie Seguin. Nor do Justice Hennessy’s Reasons deal with this policy in any manner whatsoever.
[9] Para. 5 of Justice Hennessy’s order states:
The respondent shall maintain the applicant on his health, dental and life insurance policy so long as the terms of the policy permit.
[10] This of course would include Mr. Seguin’s Vale Inco employment policy, including the portion of life insurance ($5,500) which Annie Seguin received following Mr. Seguin’s death on April 4, 2008.
[11] Of significance on this motion is the Full and Final Release signed April 25, 2008. Even assuming that Justice Hennessy’s order meant that Mr. Seguin was to maintain Mrs. Seguin as beneficiary under the London Life policy (which on the face of the reasons and order does not appear to be the case), the release itself provided that:
… and the undersigned does … release … Denis Seguin, Nicole Michels-Seguin … from any and all actions … claims … howsoever arising, which heretofore has been or hereafter may be sustained or acquired in respect of an action brought in the Superior Court of Justice at Sudbury being action number D16665 / 04 and also in the Court of Appeal and also for any claims against the Estate of the late Norman Seguin as a result of his death …
[12] Accordingly, even if Justice Hennessy’s order of June 13, 2007 granted or provided rights to Annie Seguin (or an action or a claim sustained or acquired in respect of the action dealt with by Justice Hennessy), the Full and Final Release, on its face, provides a complete release to the defendants in this case. In my view, it does not matter that London Life confirmed the policy details after the date that this release was signed.
[13] On the motion before me, counsel for both parties confirmed that the handwritten words were added to the release after it was signed. These words accordingly do not add to or detract from the signed written release.
[14] Nor in my opinion do the alleged spoken words of Annie Seguin’s previous lawyer affect the release, as it is to be construed against the defendants in the within action.
[15] Defendants and parties are entitled to rely upon written release documents signed and executed after independent legal advice has been provided. This includes the within defendants in this action.
[16] If, as the transcript material might indicate, Annie Seguin was misinformed or mis-advised by her previous lawyer as to the release’s legal effect and importance, that is an issue between Annie Seguin and her former lawyer. But it cannot detract on this motion from the clear and unequivocal effect and meaning of the written release document on its face. This signed release discharges and releases the defendants in this action from any actions, claims or losses sustained or acquired in relation to action D-16665/04, and by clear implication, the order of Justice Hennessy dated June 13, 2007.
[17] In short, claims and rights pursuant to para. 5 of the order (even in the unlikelihood that they included rights under the London Life policy) are released and discharged as settled or satisfied by virtue of the Full and Final Release signed on April 25, 2008.
Conclusion
[18] I conclude for the reasons herein outlined, that the evidence is clear and unchallenged and that the merits of the within claim do not support the action proceeding with any strength or likelihood of success. On this tier or factor in the analysis, I decline to set aside the administrative dismissal order dated August 23, 2012. Accordingly, the within motion by the plaintiff is dismissed, but under the circumstances, without costs.
[19] Order Accordingly.
The Honourable Mr. Justice J.S. O’Neill
Released: February 13, 2014
COURT FILE NO.: C-650-10
DATE: 2014-02-13
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Annie Seguin
Plaintiff
– and –
Estate of Norman Seguin, Denis Seguin, Estate Trustee of the Estate of Norman Seguin, Nicole Seguin, Estate Trustee of the Estate of Norman Seguin
Defendants
REASONS FOR JUDGMENT
O’Neill J.
Released: February 13, 2014