Court File and Parties

COURT FILE NO.: CV 20-2202

DATE: 20220615

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: The Toronto Dominion Bank, Plaintiff

AND:

Jennifer Virgo, Defendant

BEFORE: Justice Susan J. Woodley

COUNSEL: Philip Polster, Counsel for the Plaintiff

Jennifer Virgo – Unrepresented with leave granted to her spouse Ade Olumide, a non-party, non-lawyer, to make submissions for the Defendant on the motion

ENDORSEMENT

[1] The Defendant brings this motion pursuant to Rule 59.06(1) to correct the January 31, 2022, Order of Justice Edwards to include a provision in the January 31, 2022 Order that the Defendant’s Counter Claim is dismissed.

[2] The Defendant claims that the correction is necessary and relies upon paragraph 1 of the Reasons for Decision Regarding Costs of Justice Edwards dated February 11, 2022, which states “on January 31, 2022, I released my Endorsement dismissing the Defendant’s counter-claim”.

[3] The motion before the Court is not the first time that the Defendant has sought to obtain an amendment to the January 31, 2022, Order to include the provision that the Counter Claim is dismissed nor is this the first time that the correctness of the proposed amendment to the January 31, 2022, Order has been determined.

[4] On February 7, 2022, the Defendant filed a Notice of Appeal purporting to appeal under s. 19(1)(a) of the Courts of Justice Act, R.S.O. 1990, c. C.43, from the Order of Justice Edwards dated January 31, 2022.

[5] Between February 7 and February 11, 2022, the Defendant exchanged emails with Superior Court of Justice staff directed to Justice Edwards’ attention seeking to include wording in the January 31, 2022, Order that the “Defendant’s Counter Claim is dismissed”.

[6] On February 8, 2011, the Defendant was advised that “As per RSJ Edwards, your Order does not conform with His Honour’s Endorsement” and despite further pleas by the Defendant, the amendment was not made by Justice Edwards.

[7] On March 16, 2022, Justice Copeland, sitting on the Divisional Court released an Endorsement relating to the Defendant’s Notice of Appeal that dismissed the Defendant’s appeal, and specifically determined the issue currently before the Court namely that Justice Edwards did not dismiss the Defendant’s counterclaim by his Order dated January 31, 2022.

[8] Justice Copeland noted at para 8 of her Endorsement as follows:

The order of Justice Edwards has now been taken out and was discussed at the case conference. The operative portion of the order states: “the defendant’s motion for summary judgment is dismissed”. Justice Edwards’ order does not purport to dismiss the defendant’s counterclaim.

The issue of whether the order is final or interlocutory was discussed at the case conference. Mr. Olumide maintains it is a final order. However, his basis for that assertion rests on Justice Edwards reasons, not the terms of the order. Appeals are taken from orders, not from reasons. Justice Copeland advised that it is open to Ms. Virgo to seek leave to appeal, subject to the time not having expired.

[9] At paragraph 20, Justice Copeland further noted the “active part of the order of Edwards, J. states: THIS COURT ORDERS that the defendant’s motion for Summary Judgment is dismissed”.

[10] At paragraph 22 Justice Copeland noted that …”Edwards J. dismissed Ms. Virgo’s motion for summary judgment”.

[11] At paragraph 24, Justice Copeland noted that “…All that Edwards J. did (in reference to the January 31, 2022 order) was dismiss the summary judgment motion brought by Ms. Virgo. He made no order disposing of the counterclaim.”

[12] As noted by Justice Copeland at para 25, while the wording of Justice Edwards costs endorsement references “dismissing the Defendant’s counterclaim” the “order is clear that Edwards J. dismissed Ms. Virgo’s motion for summary judgment. He did not dismiss her counterclaim”.

[13] At para 30 of her Endorsement, Justice Copeland dismissed the Defendant’s appeal without prejudice to Ms. Virgo to bring a motion to extend the time to seek leave to appeal Edwards, J. decision of January 31, 2022, pursuant to s. 19(1)(b) of the CJA but made no comment on the merits of such motion to appeal.

[14] The relief sought by this motion has already been refused by Justice Edwards and otherwise determined by Justice Copeland and will not be re-visited by me.

[15] For the reasons set out herein, the Defendant’s motion is dismissed.

[16] The Plaintiff filed materials and appeared on the motion. As the successful party, the Plaintiff is entitled to costs which are fixed at $250.00 inclusive, payable within 90 days of the date herein.

Justice Woodley

Date: June 15, 2022