Court File and Parties

Court File No.: CV-24-00033535-0000
Date: 2025-05-13
Court: Superior Court of Justice - Ontario

Between:
Joseph Macera, Plaintiff

And:
Jamie Balasin and Travelers Canada, Defendants

Before: Jasminka Kalajdzic
Counsel: M. Klassen, for the Defendant, Travelers Canada
Heard: May 13, 2025

Endorsement

[1] The Defendant, The Dominion of Canada General Insurance Company (“Dominion”), incorrectly named Travelers Canada in the statement of claim, brings this motion for the following orders:

a. Leave to amend the statement of claim to correct the misnomer;
b. Dismissing the main action without costs and with leave to Dominion to continue its crossclaim against the Defendant, Jamie Balasin;
c. Sealing the affidavit of James Davidson filed in support of the motion; and
d. Granting Dominion default judgment against Ms. Balasin.

[2] As I advised Ms. Klassen at the conclusion of the hearing, I am staying the motion for default judgment pending the service of Dominion’s statement of defence and crossclaim on Ms. Balasin. Once the time for Ms. Balasin to defend the crossclaim has expired and she has been noted in default, Dominion may schedule the return of its motion.

[3] I do grant leave to amend the statement of claim to correct the misnomer, as well as the order dismissing the main action without costs and with leave to Dominion to continue its crossclaim.

[4] I do not grant the sealing order.

[5] These are my brief reasons staying the default judgment motion and denying the sealing order.

Litigation Background

[6] The Plaintiff commenced this action following a motor vehicle collision with Ms. Balasin. The statement of claim was issued on May 24, 2024 and served on Ms. Balasin on June 25, 2024. Ms. Balasin was not insured. Dominion is the Plaintiff’s insurer.

[7] On June 6, 2024, Dominion filed a statement of defence and crossclaim. In the crossclaim, Dominion pleads and adopts the allegations of negligence as against Ms. Balasin that are set out in the statement of claim.

[8] On December 3, 2024, Dominion settled the main action with the Plaintiff for the sum of $50,000.

[9] On or around December 18, 2024, Ms. Balasin was noted in default by the Plaintiff. As a result, pursuant to rule 19.02(1) of the Rules of Civil Procedure, RRO 1990, Reg. 194, Ms. Balasin is deemed to admit the facts alleged in the statement of claim.

[10] Dominion seeks default judgment for contribution and indemnity as against Ms. Balasin, pursuant to s. 2 of the Negligence Act, RSO 1990, c. N.1.

Default Judgment

[11] Dominion did not disclose an important fact in its motion material: Ms. Balasin was never served with the statement of defence and crossclaim.

[12] In preparation for the motion, I reviewed the court file and did not find an affidavit of service for the crossclaim. When asked, Ms. Klassen readily admitted that there was no such affidavit of service, and advised that the failure to serve Ms. Balasin was a clerical oversight. Notwithstanding this omission, it is Dominion’s position that it is entitled to default judgment by what I describe as ‘piggy-backing’ on the deemed admissions resulting from Ms. Balasin being noted in default in the main action.

[13] Dominion relies on Pelchat v. Brown, 2016 ONSC 6754, for its argument that it is entitled to default judgment on its crossclaim. In Pelchat, however, the co-defendant against whom default judgment was obtained had been served with the statement of defence and crossclaim, and she had failed to respond: see paras. 11-12. In contrast, Ms. Balasin was not served.

[14] While it is highly doubtful that Ms. Balasin would have chosen to defend against the crossclaim since she did not defend the main action, I am not prepared to disregard the Rules altogether. A party must first be noted in default before the court may be asked to grant default judgment: rule 19.05(1). Until Ms. Balasin is served and noted in default, the court has no jurisdiction to grant default judgment.

[15] Rather than dismiss the motion, I will stay it pending the service of the statement of defence and crossclaim on Ms. Balasin. Once the time for delivery of a defence to the crossclaim has expired, Dominion may proceed to note her in default and return the motion for default judgment.

Sealing Order

[16] Dominion seeks an order sealing the affidavit filed in support of the motion on the basis that it contains medical information and documents considered private by the Plaintiff.

[17] In Sherman Estate v. Donovan, 2021 SCC 25, the Supreme Court confirmed the strong presumption in favour of open courts. The open court principle “allows for public scrutiny which can be the source of inconvenience and even embarrassment to those who feel that their engagement in the justice system brings intrusion in their private lives. But this discomfort is not, as a general matter, enough to overturn the strong presumption that the public can attend hearings and that court files can be consulted and reported upon by the free press” (at para 2).

[18] A person asking the court to exercise discretion in a way that limits the open court presumption must establish that:

a. Court openness poses a serious risk to an important public interest;
b. The order sought is necessary to prevent this serious risk to the identified interest because reasonable alternative measures will not prevent the risk; and
c. As a matter of proportionality, the benefits of the order outweigh its negative effects.

Only where all three of these prerequisites have been met can a discretionary limit on openness properly be ordered (Sherman Estate, at para. 38).

[19] Dominion has not identified an interest that would be at serious risk if that information were made public. The fact that both parties wish to keep the supporting affidavit confidential is not enough to meet the test set out in Sherman Estate. If it were, sealing orders would be routinely granted in every personal injury action, which would be inconsistent with the strong presumption favouring open courts.

[20] The sealing order, therefore, is denied.

Order

[21] The court orders that:

a. The defendant, The Dominion of Canada General Insurance Company, is granted leave to amend the statement of claim to correct the misnomer of “Travelers Canada”;
b. The action is dismissed without costs and with leave to the defendant, Dominion, to continue its crossclaim against Jamie Balasin;
c. The motion for default judgment is stayed pending service of the crossclaim against Jamie Balasin and until she has been noted in default; and
d. The motion for a sealing order is denied.

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Jasminka Kalajdzic

Date: May 13, 2025