Court File and Parties

COURT FILE NO.: CV-15-537267

DATE: 20201125

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

THE ESTATE OF KAREN ELIZABETH MALONE, deceased by her Estate Trustee, THE PUBLIC GUARDIAN AND TRUSTEE, Plaintiff

• and -

PAUL MALCOVITCH, Defendant

BEFORE: F.L. Myers J.

COUNSEL: Lisa M. Fenech, for the plaintiff

READ: November 25, 2020

Endorsement

[1] This motion in writing was forwarded to me today.

[2] The plaintiff moves for summary judgment for damages of $100,000 in relation to a fire negligently started by the defendant in a condominium owned by the deceased.

[3] The defendant participated in the lawsuit through examinations for discovery. He has not responded to this motion although he was duly served and given an additional opportunity to participate by the endorsement of Justice Ramsay.

[4] The defendant was convicted of arson in relation to the fire that he started. In his examination for discovery, he admitted starting the fire as a result of his carelessly playing with fire in the condominium while intoxicated.

[5] There is no serious issue requiring a trial that the defendant’s conduct violated his duty of care to the condominium owner and is actionable in negligence. D.M. Drugs Ltd v. Bywater, 2013 ONCA 356.

[6] There was an earlier fire at the condominium that may have been caused by an electrical failure. It caused minor damage inside the unit. The fire started by the defendant caused significant damage inside the unit and to the common areas of the condominium building. As there was no estate trustee available, the condominium corporation repaired all of the damage to the unit and its common areas. The unit was sold and the damages incurred by the condominium corporation in the amount of $270,000 were deducted from the sale proceeds before the net remaining sum was paid to the plaintiff.

[7] Although the other fire was significantly smaller, more contained, and caused substantially less damage then the fire caused by the defendant, the plaintiff seeks only $100,000 in damages from the defendant. This is roughly equivalent to his equity in the estate.

[8] I am satisfied on the uncontested evidence that the plaintiff has established its entitlement to damages in the amount of $100,000 plus prejudgment and postjudgment interest under the Courts of Justice Act as claimed. There is no serious issue requiring a trial period I can fairly find the facts and apply the relevant law on the record before me. Order signed as asked.

F.L. Myers J.

Date: November 25, 2020