Court File and Parties
COURT FILE NO.: C-18-7809 DATE: 2022-11-23
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
Joanne Chevrier Plaintiff
– and –
Maria Jasna Orsanic, Maurice Papineau and The Dominion of Canada General Insurance Company Defendants
– and –
Intact Insurance Company Third Party
COUNSEL: Robert Durante, for the Plaintiff Antal Bakaity, for the Defendant/Moving Party Maria Jasna Orsanic Richard Nolin, for the Defendant/Responding Party Maurice Papineau James Davidson, for the Defendant/Responding Party The Dominion of Canada General Insurance Company Gary Marcuccio, for the Third Party/Responding Party Intact Insurance Company
HEARD: May 12, 2022
DECISION ON MOTION
CULLIN, J.
Overview
[1] This motion, brought by the defendant, Maria Jasna Orsanic (the “Defendant Orsanic”), seeks to set aside a noting in default against her and to allow her to file a Statement of Defence and Crossclaim. She also seeks to strike an Affidavit which she swore on April 17, 2019.
[2] The plaintiff, Joanne Chevrier (the “Plaintiff”), is no longer involved in this action and takes no position on the motion. The defendant, The Dominion of Canada General Insurance Company (“Dominion”), and the third party, Intact Insurance Company (“Intact”), oppose the motion. Maurice Papineau (the “Defendant Papineau”), a former defendant who is no longer a party to this action, also made submissions opposing the motion.
Factual Background
The Accident
[3] On or about September 2, 2017, the Defendant Orsanic, was involved in a single vehicle accident while driving a 2012 Polaris ATV (the “ATV”); the Plaintiff was a passenger on the ATV. The accident occurred when the Defendant Orsanic lost control of the ATV and it rolled over. Both the Plaintiff and the Defendant Orsanic sustained serious injuries as a result of the accident.
[4] At the time of the accident the Defendant Papineau and the Defendant Orsanic were common law spouses. There is a debate about which of them owned the ATV at the time of the accident.
Highway Traffic Act Charges and Guilty Plea
[5] On February 1, 2018, the Defendant Orsanic entered a plea of guilt to several Highway Traffic Act charges arising from the accident. For the purpose of the plea, she adopted an agreed statement of facts in which she admitted to being the owner and operator of the ATV at the time of the accident. She was represented by a paralegal at the hearing who acted as her agent.
The Proceedings
[6] On September 10, 2018, the Plaintiff issued a Statement of Claim naming the Defendant Orsanic, the Defendant Papineau, and Dominion as party defendants. The claim sought, among other things, general and special damages in the amount of $2,000,000.
[7] The Statement of Claim alleged that the Defendant Papineau was the owner, and that the Defendant Orsanic was the operator, of the ATV.
[8] Dominion was the Plaintiff’s insurer. It was named as a defendant as the Plaintiff was uncertain whether the ATV was insured on the date of the accident.
[9] The action was defended by the Defendant Papineau and by Dominion. The Defendant Papineau brought a crossclaim against the Defendant Orsanic. Dominion brought a crossclaim against the Defendants Papineau and Orsanic.
[10] Intact was the insurer of the Defendant Orsanic. On April 12, 2019, an order was made adding Intact as a statutory third party to the action as the Defendant Orsanic was in breach of her policy of insurance by operating the ATV when she did not have a valid driver’s licence. Intact filed a Statement of Defence to the Plaintiff’s action on its own behalf but did not defend either the Plaintiff’s claim or the crossclaims on behalf of the Defendant Orsanic. No Statement of Defence, either to the Plaintiff’s claim or to the crossclaims, was filed by the Defendant Orsanic.
[11] On May 6, 2019, the Defendant Papineau filed a notice of motion seeking the following relief: (1) a declaration or alternatively a determination that the Defendant Papineau was not the owner of the ATV at issue; (2) an order for summary judgment dismissing the Plaintiff’s claim against the Defendant Papineau; and (3) an order dismissing Dominion’s counterclaim against the Defendant Papineau.
[12] On May 24, 2019, an Order was made dismissing the Plaintiff’s claim and Dominion’s crossclaim against the Defendant Papineau and dismissing the Defendant Papineau’s crossclaim against the Defendant Orsanic. No declaration or determination was made regarding the ownership of the ATV. The order was made on the consent of all parties, including the Defendant Orsanic. This consent order was agreed to, at least partially, on the basis of an Affidavit of the Defendant Orsanic, which will be discussed below.
[13] In addition to consenting to the order dismissing its crossclaim against the Defendant Papineau, Dominion (as Releasor) also signed a full and final release for the benefit of the Defendant Papineau (as Releasee). That release included the following clauses:
WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, the Releasor declares that the intent of this Full and Final Release is to conclude all issues arising from the matters set forth above and from the Action and to release the Releasees from any claims whatsoever and howsoever arising from the matters set forth above and from the Action and from any matters that could have been raised in the Action, whether presently known or unknown.
IT IS AGREED AND UNDERSTOOD that if the Releasor commences such an action, or takes such proceedings, and the Releasees are added to such proceedings in any manner whatsoever, whether justified in law or not, the Releasor will immediately discontinue the proceedings and/or claims, and the Releasor will be liable to the Releasees for the legal costs incurred in any such proceeding, on a substantial indemnity costs scale. This Full and Final Release shall operate conclusively as an estoppel in the event of any claim, action, complaint or proceeding which might be brought in the future by the Releasor with respect to the matters covered by this Full and Final Release. This Full and Final Release may be pleaded in the event any such claim, action, complaint or proceeding is brought, as a complete defence and reply, and may be relied upon in any proceeding to dismiss the claim, action, complaint or proceeding on a summary basis and no objection will be raised by the Releasor in any subsequent action that the other parties in the subsequent action were not privy to formation of this Full and Final Release.
[14] The litigation continued between the Plaintiff, Dominion, and Intact, without the participation of the Defendant Orsanic. The Plaintiff was examined for discovery on February 11, 2020. No examinations were conducted of the Defendant Orsanic.
[15] The Plaintiff’s claim was settled at a mediation on March 11, 2021. The settlement was paid by Dominion and Intact. Following the settlement, Dominion and Intact sought to pursue subrogated claims against the Defendant Orsanic for the amounts paid by them to the Plaintiff. The amounts paid are significant, totalling $450,000.
[16] The Defendant Orsanic was subsequently noted in default on March 19, 2021. The Defendant Orsanic initiated this motion by a Notice of Motion dated June 10, 2021. This was her first notice to the other parties to the action that she wished to file a Statement of Defence or to strike an affidavit.
The Affidavit of April 17, 2019
[17] The co-defendants consented to granting the dismissal order and full and final release to the Defendant Papineau on the strength of evidence provided by the Defendant Papineau. This evidence included an Affidavit of the Defendant Orsanic, sworn April 17, 2019 (the “Affidavit”); this is the same Affidavit which she now seeks to strike.
[18] In summary, the Affidavit confirmed:
a. That the Defendant Orsanic purchased the ATV from the Defendant Papineau on August 31, 2017, for the sum of $5,000.00, which she paid in cash.
b. That the Defendant Papineau completed the application for transfer on August 31, 2017. The Defendant Orsanic intended to complete the formal transfer of the ATV through Service Ontario on September 5, 2017, following the long weekend.
c. That the Defendant Orsanic had possession of all keys for the ATV and had control of the ATV immediately after the purchase. The Defendant Papineau did not have use of the ATV following the purchase.
d. That the ATV was in proper mechanical condition at the time of purchase, and that the Defendant Papineau did not complete any maintenance on it after it was purchased.
e. That the Defendant Orsanic had read the transcript of the guilty pleas entered on her behalf on February 1, 2018 and agreed with the facts read into the record.
[19] The Affidavit was prepared by Daniel Sirois, a lawyer who was acting for the Defendant Papineau. Mr. Sirois and the Defendant Orsanic confirm that he did not provide legal advice to her. The Defendant Orsanic did not receive independent legal advice prior to signing the Affidavit, nor is there any evidence that she was advised to do so. It is Mr. Sirois’ evidence that he did explain that, as an unrepresented party, she was not obligated to meet with him.
[20] The Affidavit was prepared and signed over the course of two in-person interviews which took place at Mr. Sirois’ office. The Defendant Papineau was not present during either interview; there is disputed evidence as to whether he or his daughter drove the Defendant Orsanic to the appointments.
[21] The first interview occurred on April 4, 2019. Mr. Sirois and the Defendant Orsanic discussed the purchase of the ATV and the circumstances surrounding the accident. Mr. Sirois advised the Defendant Orsanic that he intended to request a dismissal of the action against the Defendant Papineau. He advised her that he wanted to draft an affidavit in her name with the details discussed at the meeting; she consented to this request.
[22] On April 17, 2019, the Defendant Orsanic returned to Mr. Sirois’ office, and signed the Affidavit. The Defendant Orsanic contends that she was not sober during the second interview when she signed the Affidavit; Mr. Sirois denies this.
The Law
Striking out a Pleading or Other Document
[23] Rule 25.11 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194provides:
The court may strike out or expunge all or part of a pleading or other document, with or without leave to amend, on the ground that the pleading or other document,
(a) may prejudice or delay the fair trial of the action;
(b) is scandalous, frivolous or vexatious; or
(c) is an abuse of the process of the court.
[24] The decision whether to strike out or expunge all or any part of a court document is an exercise of discretion. As noted by Master MacLeod (as he then was) in Allianz Global v. Attorney General of Canada, 2016 ONSC 29, at paras. 11-12 and 15:
[11] Notwithstanding that the rule may be applied to different types of documents, striking an affidavit is different from striking a pleading. Different purposes are served by pleadings and affidavits and different rules apply. Specifically affidavits are the evidentiary record for use on a motion or an application and striking the affidavit or portions of it in advance of the main hearing is a narrowing or pruning of the evidentiary record. Moreover different rules apply to interlocutory motions than apply to summary judgment motions, applications under rule 14 or applications for judicial review. Thus each situation must be considered in context.
[12] There is conflicting case law concerning whether it is appropriate to strike an affidavit on a preliminary motion or whether the evidentiary issues should be left to the judge or master presiding at the main hearing. I was referred to Lockridge v. Director, Ministry of the Environment in which Harvison Young J. enunciated the competing principles as follows. On the one hand courts are generally reluctant to deal with issues of admissibility and relevance in advance of the hearing on the merits and the court must take care not to usurp the role of the court that will consider the merits. On the other hand defining the record appropriately in advance of the hearing enhances the ability of the court to focus on the merits.
[15] In 876502 Ontario Inc. et. al. v. Propco Holdings, Dambrot J. held that the rule does not contemplate that a master should review in advance affidavits filed on a motion which will be argued later before an undetermined master or judge and make evidentiary rulings on admissibility or relevance. [Footnotes omitted.]
Setting Aside a Noting of Default
[25] The court’s authority to set aside a noting in default is provided in r. 19.03, which grants the court discretion to order relief on, “such terms as are just”.
[26] The factors to be considered by the court in exercising its discretion to set aside a noting in default were considered by the Court of Appeal in Intact Insurance Company v. Kisel, 2015 ONCA 205, 125 OR (3d) 365, at para. 13:
When exercising its discretion to set aside a noting of default, a court should assess "the context and factual situation" of the case: Bardmore, at p. 284 O.R. It should particularly consider such factors as the behaviour of the plaintiff and the defendant; the length of the defendant's delay; the reasons for the delay; and the complexity and value of the claim. These factors are not exhaustive. See Nobosoft Corp. v. No Borders Inc., [2007] O.J. No. 2378, 2007 ONCA 444, 225 O.A.C. 36, at para. 3; Flintoff v. von Anhalt, [2010] O.J. No. 4963, 2010 ONCA 786, at para. 7. Some decisions have also considered whether setting aside the noting of default would prejudice a party relying on it: see, e.g., Enbridge Gas Distribution Inc. v. 135 Marlee Holdings Inc., [2005] O.J. No. 4327, [2005] O.T.C. 891 (S.C.J.), at para. 8. Only in extreme circumstances, however, should the court require a defendant who has been noted in default to demonstrate an arguable defence on the merits: Bardmore, at p. 285 O.R. [Citations in original.]
[27] The Court of Appeal in Nobosoft Corp. v. No Borders Inc., 2007 ONCA 444, at para. 7 observed that motions to extend the time for delivery of materials and relieve defendants against defaults are routinely granted, consistent with the objective of having matters heard on their merits, provided that such relief can be extended, “with fairness to the parties”.
Analysis
Ownership of the ATV
[28] Much of the evidence filed by the Defendant Orsanic addresses the issue of the ownership of the ATV at the time of the accident. It is therefore necessary to discuss this issue, while noting that it is not determinative of either of the issues raised in this motion.
[29] The ATV was originally purchased on July 11, 2017 by the Defendant Papineau. He purchased it for the purpose of re-sale; he did not attach a plate to it or insure it. He brought it to his cottage property with the intention that potential purchasers would test-drive it.
[30] It is the evidence of the Defendant Papineau that the Defendant Orsanic bought the ATV from him on August 31, 2017, two days before the accident. He says that it was sold to her on an “as is” basis, for the sum of $5,000 cash. It is his evidence that he signed the documents transferring the ATV to her on August 31, 2017, but that she did not register the transfer in advance of the accident as a result of the intervening long weekend.
[31] Prior to this motion, this was also the position adopted by the Defendant Orsanic.
[32] The Defendant Orsanic now denies that she purchased the ATV from the Defendant Papineau. Although she signed a Bill of Sale for the ATV dated August 31, 2017, it is her evidence that she did so several weeks after the accident, and only after the OPP attended to speak to her regarding the accident. She indicates that she did not receive the vehicle transfer documents at any time prior to the accident, nor were the keys to the vehicle provided to her on August 31, 2017. It is her evidence that she signed the Bill of Sale after Mr. Papineau insisted that signing the Bill of Sale would be the best option for both of them.
[33] It is the Defendant Orsanic’s evidence that she did not expect that attesting to ownership of the ATV would expose her to personal liability for the Plaintiff’s damages. During cross-examination on her Affidavits filed in support of this motion, she explained the following:
281 Q. You didn't think that by admitting that you owned the ATV that was involved in the accident, that you wouldn't be leaving yourself liable to the lawsuit?
A. No. Because Maurice told me that the minute he gets taken off and it comes like, basically just on me, that he would be -- him and Daniel would be supporting me. And then I would be declaring bankruptcy. So if she had a lawsuit against me and personally I was liable for anything, because I didn't own any property in Canada or really have any means at that time, the plan was I would just declare bankruptcy and all of this would go away. So he would be free and clear and then, you know, whatever, I'm bankrupt. Well, I'm broke anyways, so kind of like it was okay.
[34] This scheme is, understandably, vehemently denied by the Defendant Papineau. The Defendant Orsanic did not implicate anyone other than the Defendant Papineau in the scheme; specifically, she confirms that she did not discuss it with Mr. Sirois or receive independent legal advice about it from any other lawyer.
[35] At some point in 2020, the Defendant Orsanic became aware that she was not simply going to be able to declare bankruptcy and walk away. She realized that she was going to have to disavow ownership of the ATV if she wanted to protect her interests. With the assistance of counsel, she embarked on a plan to marshal medical evidence to support her new position.
[36] While the Defendant Orsanic has some serious credibility problems, the story that she recounts is plausible. It is difficult not to view the eleventh-hour transfer of the uninsured ATV to one’s impecunious common-law spouse with some suspicion. For the purpose of this motion, however, it is a suspicion which can, and will, remain unresolved. The only observation to be made is that, if this matter were to proceed to trial, ownership of the ATV, and more specifically the Defendant Orsanic’s sole liability for the accident, would be a triable issue.
Noting in Default
[37] In my view, the issues which must be considered by the court in determining whether to set aside the noting in default against the Defendant Orsanic are her delay in taking steps to file a statement of defence; the parties’ conduct surrounding her failure to file a statement of defence; and the prejudice to the parties if the noting in default is or is not set aside.
Delay
[38] There can be no dispute that this motion was brought within a short time after the Defendant Orsanic was noted in default. The noting in default occurred on March 19, 2021 and the notice of motion was prepared on June 10, 2021. This is not a delay which would typically attract concern.
[39] In this case, the delay at issue is the 33 months that elapsed between the time that the Statement of Claim was served, and any steps were taken by the Defendant Orsanic to advise the opposing parties of her intention to participate in the litigation by serving a Statement of Defence.
[40] If one accepts the Defendant Orsanic’s evidence on its face, she could be excused for failing to file a Statement of Defence prior to retaining her own counsel because she believed that her interests were being protected by the Defendant Papineau and his counsel Mr. Sirois.
[41] What is more difficult to understand is the Defendant Orsanic’s decision not to file a Statement of Defence between the time when she began to consult counsel in mid-2020 and March 19, 2021 when she was noted in default. While it is clear that other steps were being taken in the background, no steps were taken to place opposing counsel on notice of the intent to defend the claim, or to otherwise protect the Defendant Orsanic’s position, even when it became apparent that she had not yet been noted in default. The absence of any explanation for this failure to act is a glaring omission from the evidence.
[42] While this gap in the evidence is troubling, it is not, in and of itself, fatal to the Defendant Orsanic’s motion. The court does not, as a general rule, penalize a party for the default of their counsel: Halton Community Credit Union Ltd. v. ICL Computers Ltd., [1985] O.J. No. 101 (C.A.); Wittmann Canada v. Uniglobe Canada, 2011 ONSC 822, para. 13. Were this the only issue before the court, the motion would be granted. Unfortunately for the Defendant Orsanic, it is not.
Conduct
[43] This is not a garden-variety motion to set aside a noting in default. Instead, at its core, it is a request by the Defendant Orsanic to unravel the unanticipated consequences of her self-admitted scheme to mislead the other parties to this litigation and the court regarding the ownership of the ATV in order to protect her spouse’s assets from judgment.
[44] If the court accepts the Defendant Orsanic’s evidence about the scheme, it must also be concerned about the conduct of the Defendant Papineau. At its worst, the evidence suggests that the Defendant Papineau manipulated the Defendant Orsanic during a time when she was vulnerable in order to protect his own financial interests. This is not conduct which the court ought to condone or reward.
[45] It is not the conduct of the Defendant Papineau, however, which the court must consider. The Defendant Papineau has been released from this action, and none of the relief sought in this motion will have the effect of sanctioning his conduct. Instead, the court must consider the conduct of the remaining parties, Dominion and Intact.
[46] Dominion and Intact are innocent parties in this action. They had no knowledge of any alleged scheme between the Defendant Orsanic and the Defendant Papineau, or the role of the Defendant Papineau in bringing that scheme to fruition. They properly accepted the veracity of evidence which was legitimate on its face regarding the ownership of the ATV. They settled the Plaintiff’s claim in good faith, and after doing so properly sought to recover the funds paid from the party who had accepted sole responsibility for the accident.
[47] There was also no conduct by Dominion or Intact which caused or contributed to the Defendant Orsanic’s failure to file her Statement of Defence. There is no allegation that either lulled her into a sense of security that they would protect her interests in the litigation. Neither denied a reasonable request for an extension to file a Statement of Defence. Indeed, neither were even advised of her intention to respond to the action until the Notice of Motion was served, almost three years after the litigation was commenced.
[48] I would also note that there is no evidence before the court that the Defendant Orsanic’s personal circumstances prevented her from filing a Statement of Defence prior to being noted in default. The Defendant Orsanic filed a very detailed report of Dr. Nathan Kolla, dated January 21, 2021, which spoke to the impact of mental health issues and alcohol abuse on her capacity to swear the Affidavit but mentioned nothing about her ability to retain and instruct counsel to file a Statement of Defence. Even if one accepts that her ability may have been impaired up to the point that she began to seek treatment in October 2019, this does not explain her failure to defend the proceeding thereafter, and in particular after she first retained counsel in mid-2020.
[49] While the surrounding circumstances alleged by the Defendant Orsanic may explain some of her conduct, they do not neutralize it. By her own admission, she attempted to perpetrate a fraud; the court cannot excuse that conduct at the expense of the remaining parties to the litigation whose conduct was above reproach. This factor does not support the position of the Defendant Orsanic.
Prejudice
[50] In my view, the issue of prejudice is fatal to the Defendant Orsanic’s motion.
[51] The Defendant Orsanic argues that no prejudice would arise from permitting her to defend the claim at this time. She argues that the sole remaining issue in dispute is the extent to which she and the Defendant Papineau are responsible to indemnify Dominion and Intact for the payments that they have made to the Plaintiff. She submits that permitting her defence to proceed would have no impact on the Plaintiff’s settlement and would not change the position of Dominion and Intact, who are just embarking on the collection process. If anything, permitting her defence to proceed may enhance their position as it could give them access to the Defendant Papineau’s assets to satisfy a judgment.
[52] What the Defendant Orsanic fails to acknowledge, however, is the current status of the litigation. The Plaintiff’s claim has been settled, and the Defendant Papineau is no longer a party to the litigation. Dominion has granted a full and final release to the Defendant Papineau which not only releases him from the existing claim, but also from any other claims arising from the accident. Neither Dominion nor Intact have a right of recovery against the Defendant Papineau following the dismissal of the action against him.
[53] While it is possible that Dominion and Intact could move to set aside the dismissal order and the release, there is no guarantee that either request would be granted. Their success would be at the mercy of the tenuous credibility of the Defendant Orsanic and would be challenged by an argument that the Defendant Papineau would be prejudiced if he were returned to the litigation after the Plaintiff’s claim has been settled and he has been deprived of the ability to defend it. Rather than securing the Defendant Papineau’s participation, they could find themselves with nothing more than significant legal fees and an adverse costs award.
[54] I would be remiss if I did not also consider the “worst case scenario” for Dominion and Intact. That is, the scenario in which the Defendant Papineau continues to be excused from the litigation, but the court accepts the evidence of the Defendant Orsanic that she was not the owner of the ATV and that the accident was caused by some mechanical defect attributable to the Defendant Papineau. If this were to occur, Dominion and Intact, both innocent parties in this litigation, would be left having paid a settlement that they cannot collect from the liable party. In other words, the alleged scheme concocted by the Defendant Orsanic and the Defendant Papineau would be realized.
[55] In contrast, there is very little prejudice to the Defendant Orsanic if this litigation proceeds against her in the absence of her defence. Even if she defends the claim and her version of events is accepted, it is more likely than not that she will be found to have at least 1% liability for the accident, which will expose her to the full amount of the judgment. She cannot seek indemnification from the Defendant Papineau in this proceeding, as the claim has been dismissed against him; granting the relief that she is seeking in this motion will not change that fact.
Conclusion
[56] It is not possible, at this stage of the proceeding, to grant the Defendant Orsanic’s motion without visiting substantial prejudice on the innocent parties who have relied, to their detriment, upon the Defendant Orsanic’s representations and her decision not to defend this proceeding. That would not be a fair or just result for this motion.
[57] The Defendant Orsanic has a grievance with the Defendant Papineau about the circumstances which caused her to assume ownership of the ATV. Whether she has a pathway to pursue that grievance in a separate proceeding is an issue for her to discuss with counsel. It is not a grievance that this court is going to permit her to visit upon Dominion and Intact at this late stage of the proceeding.
[58] In the circumstances, the Defendant Orsanic’s motion to set aside the noting in default is denied.
Striking the Affidavit
[59] Given my decision not to set aside the noting in default, the Defendant Orsanic’s request to strike the Affidavit is moot. For the sake of completeness, however, I will render a decision regarding this request.
[60] Even if I had granted the Defendant Orsanic’s request to set aside the noting in default, I would have denied her request to strike the Affidavit.
[61] The Defendant Orsanic argues that it would be an abuse of the process of the court to allow the Affidavit to stand.
[62] I acknowledge that the circumstances surrounding the swearing of the Affidavit are concerning. Those circumstances include not only the Defendant Orsanic’s allegation that she was coerced to sign it by the Defendant Papineau, and the Defendant Orsanic’s mental health at the time that she signed it, but also the absence of independent legal advice before she signed a document which was clearly against her interests.
[63] Notwithstanding these concerns, I find that it is not the place of this court on this motion to pre-emptively strike the Affidavit for all purposes. The Affidavit forms part of the evidentiary record. It is a significant component of the history of this litigation as it has informed decision-making by the parties and the court. It may be relevant in future proceedings.
[64] Had the Defendant Orsanic proceeded further with her defence of this action, she would have had the ability, when confronted with the Affidavit, to argue that the court should place no weight on it because of its surrounding circumstances. Conversely, the co-defendants and the third party would have had the ability to use the Affidavit to challenge the Defendant Orsanic’s narrative and to argue that the court should accept the Affidavit as truthful.
[65] Either way, the use, if any, to be made of the Affidavit is appropriately left to any future judicial officers who are asked to consider it. That is not a decision which can or should be made in a vacuum.
[66] In the circumstances, the Defendant Orsanic’s motion to strike the Affidavit is denied.
Disposition
[67] For the reasons given, I hereby make the following orders:
The request by the Defendant, Maria Jasna Orsanic, to set aside the noting in default entered against her on March 19, 2021 is denied.
The request by the Defendant, Maria Jasna Orsanic, to strike the Affidavit of Maria Jasna Orsanic, sworn April 17, 2019, is denied.
The parties may make written submissions with respect to the issue of costs within 30 days of the date of this decision. The submissions of each party shall not exceed 3 pages, double-spaced, in addition to their costs outline.
The Honourable Madam Justice K.E. Cullin
Released: November 23, 2022
COURT FILE NO.: C-18-7809 DATE: 2022-11-23
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
Joanne Chevrier Plaintiff
– and –
Maria Jasna Orsanic, Maurice Papineau and The Dominion of Canada General Insurance Company Defendants
– and –
Intact Insurance Company Third Party
DECISION ON MOTION
Cullin J.
Released: November 23, 2022