





CITATION:
Vair v. Ramsammy, 2011 ONCA 788



DATE: 20111214



DOCKET: C54048



COURT OF APPEAL FOR ONTARIO



Cronk, Lang and Watt JJ.A.



BETWEEN



Violet Vair



Plaintiff/Appellant



and



Elizabeth
          Ramsammy, Heather Bryan

and Coseco
          Insurance Company



Defendants/Respondents



Jane Poproski, for the appellant



Bruce Keay, for the respondents



Heard and released orally:
December 8, 2011



On appeal from the order of Justice
          A.C.R. Whitten of the Superior Court of Justice, dated October 13, 2010.



ENDORSEMENT



[1]

The appellant, Violet Vair, at her own initiative, settled all her
    claims against the respondent insurance company in January 2003.  As a
    condition of that settlement, she provided a form of final release in favour of
    the insurer.

[2]

Thereafter, in an action commenced in 2004, she sought to set aside the
    release and the settlement on the basis of alleged improprieties and bad faith
    by the insurer.  Her counsel later agreed to the dismissal of that action and
    the dismissal was confirmed by consent court order dated October 17, 2007.

[3]

Almost two years later, on May 14, 2009, the appellant, through the same
    counsel who acted for her in respect of the 2004 action, commenced a second
    action against her insurer and others in which she sought damages for the
    alleged tort of conspiracy to cause economic harm, among other relief.  The
    underlying facts advanced in support of this claim were essentially the same as
    those pleaded in the appellants 2004 action, with the exception of the bald
    assertion of the requisite elements of a conspiracy.

[4]

Also in her 2009 pleading, the appellant admitted that she discovered the
    alleged conspiracy on May 13, 2003 and pleaded that a six-year limitation
    period for her conspiracy claim ran from that date.  This pleading was never
    amended to withdraw or modify this admission.

[5]

Thus, by the time that the appellants 2009 action was commenced on May
    14, 2009, by the appellants own admission in her pleading, the six-year
    limitation period had expired.

[6]

Perhaps more importantly, in response to the respondents summary
    judgment motion, the appellant led no evidence to support her conspiracy
    claim.  Simply stated, on the record before the motion judge, there was no
    evidentiary foundation for a genuine issue requiring trial on the conspiracy
    allegation.

[7]

In these circumstances, even assuming that it was open to the appellant
    to raise the conspiracy allegation in 2009 for the first time, the motion judge
    did not err by granting the respondents summary judgment motion.

[8]

The respondents are entitled to their costs of the appeal, if sought
    having regard to the appellants circumstances, fixed in the amount of $2,000,
    inclusive of disbursements and all applicable taxes.

E.A. Cronk J.A.

S.E. Lang J.A.

David Watt J.A.


