Court File and Parties

Court File No.: CV-19-632657 Date: 2021-11-30 Superior Court of Justice - Ontario

Re: Aldwin Reano, Plaintiff And: Margarette Calo, Defendant

Before: W.D. Black J.

Counsel: Marin Nati, for the Plaintiff No one appearing for the Defendant

Read: November 29, 2021

Endorsement

[1] This is further to my endorsement of November 25, 2021, concerning a trial that I heard on November 9, 2021.

[2] The trial was undefended and involved an allegation by the plaintiff that the defendant, his sister-in-law, had agreed to pay to the plaintiff certain proceeds of a policy of life insurance on the life of the plaintiff’s late wife (the defendant’s sister).

[3] In that endorsement, I expressed the concern that in his evidence, the plaintiff had failed to establish that there had been any consideration going to the defendant in exchange for the payments allegedly arising from an agreement.

[4] I was also not persuaded by plaintiff’s counsel in his oral submissions on the day of the trial that the evidence showed any consideration for the alleged deal.

[5] In the circumstances, in order to give the plaintiff every opportunity to prove his case, I gave the plaintiff and his counsel some additional time to undertake further research and provide further submissions and to demonstrate, if possible, that legally tenable consideration could be identified in the circumstances of this case.

[6] To that end, the plaintiff filed written submissions on November 29, 2021.

[7] The thrust of those submissions is essentially threefold.

[8] First, the plaintiff points to and relies on rule 19 of the Rules of Civil Procedure, which states, in rule 19.02(1)(a), that a defendant who has been noted in default is deemed to admit the truth of all allegations of fact made in the statement of claim.

[9] While this is true, it is clear that what are deemed to be admitted are allegations of fact. Allegations of law, or mixed fact and law, do not bind the court as admissions. In an undefended trial, the court must determine whether the evidence is sufficient to entitle the plaintiff to judgment.

[10] The plaintiff submits that the facts pleaded in the statement of claim, namely that there was an agreement between the parties, entitles him to judgment. In my view, this submission does not advance us beyond the point we had reached following the evidence I heard on November 9. That is, the question remains as to whether or not the facts pleaded and on which the plaintiff testified demonstrate the formation of a legally binding agreement.

[11] The plaintiff next submits that the presence of the plaintiff’s mother and the defendant’s mother at the meeting at which the contract was allegedly formed, “gives validity” to the contract. I do not find this suggestion persuasive, as there could have been any number of reasons for the presence of the parties’ mothers at the meeting in question. Neither mother was called to testify and accordingly we are left to speculate. Their presence at the meeting, with respect, does not prove an agreement.

[12] Next, with respect to the suggestion in my endorsement that the payment of a portion of the proceeds of the insurance policy from the defendant to the plaintiff was equally, or perhaps more consistent with a gift as opposed to a binding contract, the plaintiff makes two submissions.

[13] First, he argues that “if these funds were indeed a gift, a meeting between the parties would not be necessary as the gift would merely be delivered”. Again, I am having difficulty with this argument inasmuch as it is equally consistent with a gift that there would be a gathering of some family members to hear about that gift. Again, we have no testimony from either mother and no persuasive evidence to support the bald allegation that the payments by the defendant confirmed the agreement as opposed to demonstrating a gift.

[14] Secondly, the plaintiff submits that “the large quantum would not be a gift”. The argument continues that “the plaintiff acknowledges and admits that a small sum of money would be a gift, but ultimately, a large sum conveyed in the remainder that was naught would point to something other than a gift”. I do not see how the size of the amount provided (which here totalled $25,000.00), says anything in particular about the nature of the payment.

[15] Finally, the plaintiff concedes the lack of consideration. He says, “the plaintiff accepts that while there was no traditional consideration, the parties ultimately agreed to a contract”. With respect, in my view, this is simply a further repetition of the conclusion the plaintiff urges me to reach with no additional legal support to overcome the paucity of evidence in the record.

[16] As such, unfortunately, I remain unpersuaded that there was consideration here flowing to the defendant to support the claim that there was a binding agreement.

[17] Given that conclusion I must dismiss this claim.

W.D Black J.

Date: November 30, 2021