Court File and Parties
Court File No.: CV-17-00588438 Date: 2023-09-27 Superior Court of Justice - Ontario
Re: Aviva Canada, Plaintiff And: Toshera Harry, Defendant
Before: C.J. Brown J.
Counsel: Arifa Serter, Counsel for the Plaintiff Toshera Harry, Defendant, unrepresented
Heard: In writing, September 15, 2023
Endorsement
[1]
Background
Aviva Canada (“Aviva”) brings this motion for an order for default judgment.
2This action arises from a motor vehicle accident in which the defendant was involved on July 25, 2016. Shortly after the last accident, the plaintiff discovered various misrepresentations in the defendant’s applications for insurance which, according to Aviva, constituted a material change in risk, such that the policy was considered void ab initio.
3Aviva had paid out to the defendant over a period of time a total of four claims under the motor vehicle accident insurance, totaling $36,126.40.
4This led Aviva to issue a statement of claim on December 14, 2017 for breach of contract to recover $36,126.40. On November 26, 2020, the defendant served her statement of defence.
5Following delivery of the statement of defence, the plaintiff made numerous efforts to proceed with the action, including canvassing dates for examination for discovery. The defendant failed to respond.
6Since commencement of this action against her on December 14, 2017, over a period of more than five years, the defendant has failed to retain counsel, serve her affidavit of documents and Schedule A productions, attend for scheduled examinations for discovery on numerous occasions, has attended on Examination for Discovery twice, but refused to answer any questions, has requested adjournments of the Examinations for Discovery on numerous other occasions and has failed to comply with court orders.
7On April 27, 2022, the court ordered the defendant’s statement of defence struck without further leave to file a statement of defence. The defendant was noted in default on July 4, 2023.
8Pursuant to R. 19.02(1) of the Rules of Civil Procedure, 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. Further, the defendant shall not deliver a statement of defence or take any other step in the action, other than a motion to set aside the noting of default, without leave of the court. In this action, the defendant took no steps to set aside the noting of default.
9Rule 19.02 provides a mechanism for proceeding in circumstances where the defendant refuses to participate in the court process, as is the case here.
[10]
Disposition
I am satisfied, based on the deemed admissions pursuant to R.19.02(1), the evidence before me and the law, that the plaintiff is entitled to default judgment against the defendant and so order. I order that the defendant pay to the plaintiff the amount of $36,126.40, plus pre-judgment interest of $2,141, as well as the costs of this action in the amount of $5,966.35.
11These amounts are payable within 30 days of the release of this decision.
C.J. Brown J.
Date: September 27, 2023