Court File and Parties

COURT FILE NO.: CV-11-1270 DATE: MARCH 7, 2017 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: PATRICIA ANNE QUINN, HUBERT QUINN, DAMIEN MICHAEL FRANCIS QUINN, SEAN JOSEPH QUINN, RORY EMMETT QUINN and ANGELA JOYCE, Plaintiffs

AND:

MICHAEL R. MORTON, STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, and STATE FARM FIRE AND CASUALTY COMPANY, Defendants

AND:

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Add by Order pursuant to Section 258(14) of the Insurance Act, R.S.O. 1990, c. I.8, as amended Statutory Third Party

BEFORE: THE HONOURABLE MR. JUSTICE G. M. MULLIGAN

COUNSEL: Stacey Hsu, Counsel, for the Plaintiffs and Defendants, State Farm Mutual Automobile Insurance Company and State Farm Fire and Casualty Company Michael Morton -Self-Represented

HEARD: February 28, 2017

Endorsement

[1] The plaintiffs and two defendants, State Farm Mutual Automobile Insurance Company and State Farm Fire and Casualty Company bring a motion to note in default the defendant, Michael Morton. They also seek an order for Default Judgement against Michael Morton. Mr. Morton attended the hearing without filing any material and without counsel.

[2] This matter has a long history. The plaintiff, Patricia Quinn, was injured in an automobile accident. Her vehicle was struck by a vehicle operated by Mr. Morton. She issued a Statement of Claim on December 21, 2011. Mr. Morton did not file a Statement of Defence and was noted in default for the first time on February 29, 2012.

[3] Subsequently, a Statement of Defence and Cross-Claim of the defendant, State Farm, was delivered on September 21, 2012. Michael Morton’s own insurer, also State Farm, was added as a statutory third party by order dated December 18, 2012.

[4] The plaintiffs claim was subsequently settled by the State Farm defendants in the amount of $1,316,654.32.

[5] Subsequently, Mr. Morton retained counsel. The matter appeared before Justice Howden on October 3, 2014, as a Motion to set aside the noting of pleadings closed. By endorsement dated November 5, 2014, Justice Howden noted at paragraph 26; “There is nothing in the defendants’ material to disclose a defence”. However, Justice Howden gave Mr. Morton three weeks to make further submissions.

[6] At the return of the motion, Justice Howden set aside the noting of pleadings closed and established a timeline for Mr. Morton to file a Statement of Defence, an Affidavit of Documents, Examinations for Discovery and have the matter set down for trial, all before September 30, 2015. No such steps were taken by Mr. Morton.

[7] On January 24, 2017, this motion came before Justice DiTomaso and Mr. Morton was given a further indulgence. Justice DiTomaso adjourned the matter on a peremptory basis until February 28, 2017, indicating that the matter would proceed with or without counsel. Mr. Morton has taken no steps to retain counsel or taken any further steps following the endorsement of Justice DiTomaso.

[8] It is plain and obvious that the moving parties are entitled to note Mr. Morton in default. The original noting in default against him was set aside by Justice Howden, but he took no steps thereafter in accordance with the timelines established there. Further, he took no steps after he was granted another short indulgence by Justice DiTomaso.

[9] The moving parties now seek default judgment from the court. Rule 19.02(1) provides:

A defendant who has been noted in default, a) has deemed to admit the truth of all allegations of fact made in the Statement of Claim and, b) shall not deliver a Statement of Defence or take any other step in the action, other than a motion to set aside the noting in default or any judgment obtained by reason of the default, except with leave of the court or consent of the plaintiff.

[10] Rule 19.05 indicates that the moving party may move for judgment, provided the motion is supported by an affidavit when the claim is for unliquidated damages.

[11] In support of its motion, the plaintiff filed a lengthy affidavit with respect to the motor vehicle accident, the various treatments of the plaintiff, Patricia Quinn, and the previous endorsements. In addition, the moving parties filed an updated affidavit as to the history of the settlement discussions between the plaintiffs and the other defendants.

[12] I am satisfied that the moving parties are entitled to judgment against the defendant, Michael Morton, for $1,316,654.32.

[13] The moving parties filed a Bill of Costs on behalf of the moving parties seeking $24,532.07 on a full indemnity basis or $16,981.86 on a partial indemnity basis, all inclusive, for the entire proceedings.

[14] I am satisfied that this is a case where partial indemnity costs ought to be awarded to the moving parties. I find that the hours spent and hourly rates are reasonable under the circumstances. I therefore order costs against Michael Morton in the amount of $16,981.86.

[15] At the conclusion of this motion, counsel for the moving parties handed up a draft order, which I have now completed and signed.

MULLIGAN J. Date: March 7, 2017