Sherkin Wagman v. Andria Davis et al., 2015 ONSC 1393
COURT FILE NO.: CV-12-445932
DATE: 20150309
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
SHERKIN WAGMAN
Applicant
– and –
ANDRIA DAVIS, DR. HERB von SCHROEDER and SINGER, KWINTER, Barristers & Solicitors
Respondents
William A. McMaster, for the Moving Party, Singer Kwinter
T. Tynan, for the Moving Party Wawanesa Mutual Insurance Company
Andria Davis on her own behalf
HEARD: February 2, 2015
faieta, j
REASONS FOR DECISION
[1] The Wawanesa Mutual Insurance Company (“Wawanesa”) brings a motion for an order that the sum of $14,500 plus interest be paid by the court to Wawanesa from funds that have been paid into court. The motion is brought pursuant to Rules 1.04, 2.01, 37, 57.03 and 72 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 195 (the “Rules”), as well as sections 130 and 131 of the Courts of Justice Act, R.S.O. 1990, chap. C.43, as amended.
[2] The law firm Singer, Kwinter (“Singer”) commenced another application (Court File CV-14-518945) on December 29, 2014 for an order that the court pay it the sum of $6,955.00 from funds that have been paid into court. The application is brought pursuant Rules 1.04 and 72.03 of the Rules.
Background
[3] The Respondent, Andria Davis, (“Davis”) suffered personal injuries in a motor vehicle accident that occurred in 2001. An action for damages arising from the motor vehicle accident was settled in 2009 (“personal injury settlement”) for the sum of $30,000. The Applicant represented Davis throughout except for a brief period at the outset of the action when she was represented by the Respondent Singer.
[4] The Respondent Dr. Herb von Schroeder sent a letter dated January 5, 2012 to the Applicant seeking payment of the outstanding account of $2,000 related to “chart review and tel. consult” in relation to the Davis personal injury action. There is no indication whether Dr. von Schroeder was paid. Singer served Dr. von Schroeder with their Notice of Application and Application Record on January 8, 2015. Dr. von Schroeder did not attend the hearing of this application and motion.
[5] Singer represented Davis from about July 2001 until 2004. From the endorsement of Assessment Officer G.R. Johnson, dated October 17, 2005, it appears that the assessment of this account was adjourned until January 17, 2006 as Singer raised a jurisdictional issue that Davis had not filed a request for an assessment within the requisite time. The endorsement of Assessment Officer, G. Maitland-Carter, dated January 17, 2006, states that the parties had entered Minutes of Settlement. Davis agreed to pay Singer the sum of $6,955.00. A Certificate of Assessment was not issued. No payments have been made by Davis towards the amount owed to Singer.
[6] A motion by Davis to set aside the personal injury settlement was dismissed by this court on July 28, 2010. An appeal to the Ontario Court of Appeal was dismissed on April 21, 2011. Wawanesa successfully responded to these motions and Davis was ordered to pay Wawanesa a total of $14,500.00 in costs A motion for an extension of time to serve and file the application for leave to appeal was dismissed by the Supreme Court of Canada on October 18, 2012. The Supreme Court of Canada closed its file on January 4, 2013.
[7] On February 13, 2014 a Writ of Seizure and Sale was issued in favour of Wawanesa requiring the payment of $10, 000 and interest at the rate of 2 per cent per year commenced October 4, 2010.
[8] Wawanesa has initiated steps to enforce its Writ of Seizure and Sale against a property owned by Davis in Barrie, Ontario. In taking this enforcement Wawanesa obtained a court order of Master Graham dated May 5, 2014 wherein Davis was ordered to provide an up to date mortgage statement in respect of her property. An appeal by Davis of that order was dismissed by this court on August 27, 2014. Affidavit evidence provided on Wawanesa’s behalf indicates that the total amount owing to Wawanesa under both court orders including post-judgment interest is $15,879.29.
[9] On July 26, 2012 the Applicant Wagman, Sherkin commenced this application and obtained an Interpleader Order from this court. The Order states:
THIS COURT ORDERS that the Applicant pay into Court the sum of TWENTY-SIX THOUSAND, SEVEN HUNDRED AND FIVE ($26,705.07) DOLLARS and SEVEN CENTS.
THIS COURT DECLARES that on compliance with paragraph 1 of this Order, the Applicant is released from any liability regarding the funds paid into court.
THIS COURT ORDERS that following the conclusion of the appeal process with respect to the determination of the validity of the settlement agreement entered into the Respondent Andria Davis, the parties may return to Court to seek the distribution of the monies paid into Court.
THIS COURT ORDERS that the costs associated with this application are reserved to the Judge who will eventually deal with the distribution of the funds paid into Court.
[10] The claim by Singer for payment of its account was identified in the application record filed by the Applicant, Wagman, Sherkin. After granting the interpleader order permitting the Applicant to pay into court the amount of $26,705.07 Justice K.L. Campbell stated in his endorsement that:
I am not prepared, at this point in time, to make any further order distributing the funds. The legal validity of the $30,000.00 settlement agreement is presently before the Supreme Court of Canada. It will only be when that matter has been concluded that any decisions can approximately be made as to the distribution of those funds.
[11] Davis submits that the money in court should be paid to her rather than be paid to Wawanesa and Singer.
[12] The last issue is what authority I have to order that the monies held by the court be paid to Wawanesa, Singer and Davis and whether I should do so.
[13] Money paid into the Superior Court of Justice shall be paid to the Account of the Superior Court of Justice.[^1] The money paid into court vests in the Accountant of the Superior Court of Justice.[^2] Money vested in or held by an officer of a court shall be deemed to be vested in the officer in trust for Her Majesty, subject to being disposed of, in accordance with any Act, rule of court or order.[^3]
[14] Money may be paid out of court only in accordance with an order or report, or on consent.[^4] [underlining added]
[15] A person who seeks payment of money out of court in accordance with an order or report shall file with the Accountant: (1) a written request for payment out; (2) the order or report; (3) in the case of an order, an affidavit stating that the time for an appeal has expired and no appeal is pending, (4) in the case of a report, an affidavit stating that the report has been confirmed and the manner of confirmation; and the Accountant shall then pay the money to the person to whom the order or report directs that it be paid.[^5]
[16] In London Life Insurance Co. v. Wiseman[^6] it was held that Rule 72.03 does not provide the authority for the court to order that money be paid out of court. The court suggested another proceeding be commenced and a summary judgment motion be brought to determine the entitlement of the claimants.
[17] While I agree with London Life to the extent that Rule 72.03 does not provide the court with authority to determine questions of entitlement, it is my view that Rule 43.04 does provide that authority to determine entitlement and make an order which can be acted upon by the Accountant under Rule 72.03.
[18] Rule 43.04 states:
Powers of Court
43.04 (1) On the hearing of an application or motion for an interpleader order, the court may,
(a) order that the applicant or moving party deposit the property with an officer of the court, sell it as the court directs or, in the case of money, pay it into court to await the outcome of a specified proceeding;
(b) declare that, on compliance with an order under clause (a), the liability of the applicant or moving party in respect of the property or its proceeds is extinguished; and
(c) order that the costs of the applicant or moving party be paid out of the property or its proceeds. O. Reg. 42/05, s. 3.
(2) In an order under subrule (1), the court may,
(a) order a claimant to be made a party to a proceeding already commenced in substitution for or in addition to the moving party;
(b) order the trial of an issue between the claimants, define the issue to be tried and direct which claimant is to be plaintiff and which defendant;
(c) where the question is one of law and the facts are not in dispute, decide the question without directing the trial of an issue;
(d) on the request of a claimant, determine the rights of the claimants in a summary manner, if, having regard to the value of the property and the nature of the issues in dispute, it seems desirable to do so;
(e) where a claimant fails to attend the hearing, or attends and fails to comply with an order made in the course of the proceeding, make an order declaring that the claimant and all persons claiming under the claimant are forever barred from making a claim against the applicant or moving party and all persons claiming under the applicant or moving party, without affecting the rights of the claimants as between themselves;
(f) stay any further step in a proceeding in respect of the property; and
(g) make such other order as is just.
[19] In my view Rule 43.02(2) provides me with the authority to determine the entitlement of the parties to an order paying monies out of the court. Although the parties have not relied upon Rule 43.02, I will exercise my discretion to apply it.
[20] Davis raises two concerns.
[21] First, Davis submits that, as part of the settlement of her motor vehicle accident claim, her former lawyer, Charles Wagman (“Wagman”), said that he would accept responsibility “… to pay any legal bills and medical bills resulting from my pedestrian motor vehicle accident.” I make no finding on whether Wagman made such a promise. Even if Wagman made such a promise, that promise does not relieve Davis from complying with the court orders that require Davis, not Wagman, to pay Wawanesa’s costs and to pay Singer’s costs.
[22] Second, Davis submits that the two orders that require Davis to pay Wawanesa’s costs do not require that interest be paid. However the last line of both Orders expressly requires the payment of post-judgment interest:
• The Order of the Superior Court of Justice dated July 28, 2010 requires that Davis pay Wawanesa costs fixed at $10,000. It stated “THIS ORDER bears interest at the rate of 2% per annum commencing from its date.”
• The Order of the Court of Appeal dated April 21, 2011 which dismissed the appeal from the Order of the Superior Court of Justice dated July 28, 2010 ordered that Davis pay Wawanesa costs fixed at $4,500. It stated “THIS ORDER bears interest at the rate of 3% per annum commencing on the 21st day of April 2011.”
[23] In my view, there is no reason not to grant the orders sought by Wawanesa and Singer. Davis has not paid either Wawanesa or Singer and, as result, is in breach of two court orders that require Davis to pay Wawanesa the amounts claimed as well as the settlement agreement that Davis made with Singer regarding their account. In these circumstances the interests of justice would not be served by paying Davis the full amount of money held in court in this matter without first having paid out Wawanesa and Singer.
Summary
[24] For these reasons, I order that the monies held by the court in this matter be paid out of to court as follows:
• $15,879.29 to Wawanesa Mutual Insurance Co.;
• $6,955 to Singer, Kwinter;
• The balance of the money held by the court in this matter to Andria Davis.
[25] Wawanesa and Singer seek their costs of this motion. In my view an award of costs is inappropriate in these circumstances and, as a result, I decline to do so.
Mr. Justice M. Faieta
Date: March 9, 2015
[^1]: O. Reg. 191/95, s. 3(2).
[^2]: O.Reg. 191/95, s. 3(4).
[^3]: Courts of Justice Act, s. 93.
[^4]: Rule 72.03(1).
[^5]: Rule 72.03(2).
[^6]: [2008] O.J. No. 857.