COURT FILE NO.: CV-20-0068-00
DATE: 2024-04-29
SUPERIOR COURT OF JUSTICE – KENORA, ONTARIO
HEARD: April 25, 2024
BEFORE: Newton J.
COUNSEL: P. Olinyk for the Defendant / Edwin James not appearing
Endorsement on Motion
Overview
[1] In November 2020, Mr. Rossiter sued the defendant estate trustee claiming an interest in the estate of Ms. Sawatsky based on a claim for compensation for services rendered to the deceased prior to her death or based on a constructive trust.
[2] The defendant moves to dismiss this action on two grounds: delay and on summary judgment because there is no genuine issue for trial.
Procedural History to Date
[3] The plaintiff served the statement of claim on Ms. Webb as estate trustee on November 17, 2020. The statement of defence was delivered on December 9, 2020. The last step in this litigation was the exchange of affidavits of documents in April 2021.
[4] In 2022, counsel for the defendant wrote to plaintiff’s counsel to move the litigation forward. Counsel for Mr. Rossiter advised that they were seeking instructions and, later, in June 2022, that they would be moving to be removed as counsel of record. No removal motion was brought.
[5] On October 16, 2023, this motion for summary judgment and affidavit and factum in support of the motion was served on counsel for Mr. Rossiter.
[6] In January 2024, the estate was served with a notice of intention to act in person signed by Mr. Rossiter on December 12, 2023.
[7] In advance of this motion, Mr. Rossiter was personally served with the notice of motion for summary judgement, affidavit and factum that was previously served on his counsel.
[8] Although the motion did not include details for the ZOOM link the Kenora Court address was given. Mr. Rossiter has not contacted counsel for the Estate, Ms. Webb, or court staff. He did not attend after waiting 15 minutes as required by Rule 3.03(2). I directed that the motion was to proceed in his absence.
Delay/Abandonment
[9] Mr. Rossiter has taken no steps to advance this litigation in three years. Mr. Rossiter has taken no steps since signing a notice of intention to act in person over four months ago. Mr. Rossiter made no attempt to contact counsel for the estate, the estate trustee, or the court since being personally served a week ago.
Summary Judgment
[10] The defendant served a summary judgment motion in October 2023. Responding material has not been served. No-one has responded at all.
[11] There is no evidence before me to support any of the claims made in the statement of claim. As the affidavit of the estate trustee sets out, she is the sole beneficiary on this intestacy. There is no evidence offered for corroboration of any alleged oral agreement made between the plaintiff and the deceased as required by s. 13 of the Evidence Act[^1].There is no evidence to support any claim for a trust or any other claim advanced by the plaintiff.
[12] In the absence of any evidence to support the plaintiff’s claims there is no genuine issue for trial and the defendant is entitled to an order dismissing the action on summary judgement.
Disposition
[13] This action is dismissed. The defendant is entitled to its costs of the action, including this summary judgement motion, payable by the plaintiff. The defendant may deliver written cost submissions, limited to three pages plus costs outline, within 21 days from the release of this decision. If costs submissions are not received within that time, then costs will be deemed settled or abandoned.
“originally signed”
_____________________________
The Hon. Mr. Justice W.D. Newton
DATE: April 25, 2024
COURT FILE NO.: CV-20-0058-00
DATE: 2024-04-29
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Rossiter v. Webb as Estate Trustee for Estate of Judith Sawatsky
HEARD; April 25, 2024
BEFORE: R.S.J. Newton
COUNSEL: P. Olinyk for the Defendant / Edwin James not appearing
ENDORSEMENT
RSJ Newton
DATE: April 29, 2024
[^1]: RSO 1990, C. E.23.