Court File and Parties

COURT FILE NO.: CV-19-00613417-0000 DATE: 2019-12-17

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] By way of Order dated April 3, 2019 in Action No: CV-18-00608711-0000, Justice Sossin ordered that all actions arising directly or indirectly from the van incident of April 23, 2018 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”) wrote to me in my capacity as case management judge. Ryder advised that the defendant Alek Minassian (“Minassian”) was served with the Statement of Claim (“Claim”) on March 12, 2019 and was noted in default on August 22, 2019.

[3] In this correspondence, counsel further advised that Ryder and the co-defendant Chubb Insurance Company of Canada (“Chubb”) were on consent jointly requesting Orders lifting the stay in this action and dismissing the action against Ryder and Chubb only without costs.

[4] Counsel for Aviva General Insurance Company, (“Aviva”) the statutory third party in other related proceedings replied on September 9, 2019 that the relief sought by Ryder and Chubb was inconsistent with the spirit and intent of Justice Sossin’s Order. Aviva argued that any motion for an order dismissing this action against Ryder should be stayed for the same reasons that the original stay order was granted.

[5] Subsequently, by correspondence dated September 10, 2019, Ryder again wrote to the Court advising that it was now seeking an Order dismissing the entire action against all defendants without costs. At that time, counsel for Ryder 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 in this action was enclosed.

[6] By way of endorsement dated September 18, 2019, I confirmed that the defendant Minassian was noted in default after the date of Justice Sossin’s stay order. I wrote that a noting in default when a stay of proceedings is in place should not be given effect. I referred to the decisions in 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] Given my determination that the noting of Minassian in default was invalid, I directed that any requests for orders lifting the stay in this action and dismissing this action in whole or part were to be made as a motion in writing. The motion should be in accordance with the procedure set forth in rule 37.12.1(4) of the Rules of Civil Procedure, R.R.O.1990, O. Reg. 194 (Opposed Motions in Writing) on notice to all parties in this proceeding.

[8] In accordance with this direction, Ryder served the plaintiffs and defendants Minassian and Chubb with their motion record and factum on November 22, 2019. Ryder provided evidence by way of affidavit of service sworn November 25, 2019. In its motion record, the relief sought by Ryder includes the following:

(a) An Order lifting the stay in this action for the sole purpose of permitting the orders sought to be granted;

An Order noting Minassian in default in this action; and

(b) An Order dismissing this action without costs on the consent of the plaintiffs, Ryder and Chubb.

[9] Minassian has not delivered any responding material in accordance with the procedure set forth in Rule 37.12.1(5).

[10] The affidavit filed in support of this motion confirms that the D’Amico family has resolved their claim with Chubb. The D’Amico family has elected not to proceed with the claim against Minassian and Ryder. The plaintiffs, Ryder and Chubb consent to the relief sought. The affidavit further confirms that Aviva is content with the order sought on the condition that this action be dismissed against Minassian, Ryder and Chubb.

[11] I have reviewed the in-writing motion record and factum delivered in accordance with the procedure set forth in rule 37.12.1. I am satisfied that the order sought dismissing this action in its entirety against all parties without costs is appropriate in the circumstances. The noting of Minassian in default is not required for the Court to grant such order.

[12] I therefore order that the stay be lifted in this action for the sole purpose of granting an order dismissing this action without costs and that this action be and is dismissed in its entirety without costs. Order to issue in accordance with the original order, as amended and signed by me.

Firestone J.

Date: December 17, 2019