Court File and Parties

COURT FILE NO.: CV-19-00613417-0000 DATE: 20190918

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: ROCCO D’AMICO, CARMELA D’AMICO, FRANCES D’AMICO, NICHOLAS D’AMICO and THE ESTATE OF ANNE MARIE D’AMICO, deceased, by her Litigation Administrator, ROCCO D’AMICO, Plaintiffs

AND:

ALEK MINASSIAN, RYDER TRUCK RENTAL CANADA LTD. and CHUBB INSURANCE COMPANY OF CANADA, Defendants

BEFORE: Mr. Justice S. Firestone

COUNSEL: Gus Triantafillopoulos, for the Plaintiffs John J. Jones, for the Defendants, Ryder Truck Rental Canada Ltd. Paul Tushinski, for the Defendants, Chubb Insurance Company of Canada Alek Minassian, Self-represented

HEARD: By writing

ENDORSEMENT

[1] On April 3, 2019 in Action No: CV-18-00608711-0000, Justice Sossin ordered that all actions arising from the incident, including the present action and any other actions which have been or will be brought, be stayed until the latter of:

(a) October 23, 2020, being the expiry of the two-year limitation period and the subsequent six-month period for service of any Statement of Claim arising from the incident; or

(b) The final conclusion of the criminal proceedings, and any appeal therefrom, as against Alek Minassian relating to the incident.

[2] On September 5, 2019, counsel for the defendant, Ryder Truck Rental (“Ryder”) in this action wrote to me in my capacity as Case Management Judge advising that Alek Minassian (“Minassian”) was served with the Statement of Claim on March 12, 2019 and was noted in default on August 22, 2019.

[3] Counsel further advised that Ryder as well as the plaintiff’s and co-defendant Chubb Insurance Company of Canada (“Chubb”) were requesting an Order lifting the stay in this action and an Order dismissing this action as against Ryder and Chubb only without costs. An executed consent on behalf of the plaintiffs, Ryder and Chubb was enclosed.

[4] On September 9, 2019, counsel for Aviva General Insurance Company, the Statutory Third Party in other related proceedings wrote and submitted that the relief being sought was inconsistent with the spirit and intent of Justice Sossin’s Order and that any motion for an order dismissing this action as against Ryder should be stayed for the same reasons that the original stay order was granted.

[5] By way of correspondence dated September 10, 2019, counsel for Ryder again wrote now seeking an Order dismissing the entire action against all defendants without costs. Counsel advised that it was his understanding that counsel for Aviva no longer required a motion to lift the stay. A further executed consent on behalf of the plaintiffs, Ryder and Chubb was enclosed.

[6] The defendant Minassian was noted in default after Justice Sossin’s stay Order. A noting in default or default judgment obtained when a stay of proceedings is in effect should not be given effect. See generally: People’s Trust Company v. Rose of Sharon (Ontario) Retirement Community, 2012 ONSC 7319; Business Development Bank of Canada v. 8000140 Canada Ltd.; 2018 MBQB 94; and Yehya v. Thomas, 2019 ABCA 164.

[7] I therefore direct that any request for an Order lifting the stay in this action and for an Order dismissing this action in whole or in part be made by way of a motion in writing in accordance with rule 37.12.1(4) of the Rules of Civil Procedure, R.R.O.1990, Reg 194 on notice to all parties in this proceeding.

Firestone J.

Date: September 18, 2019