



COURT OF APPEAL FOR ONTARIO

CITATION: Hebditch v. Birnie, 2017 ONCA 169

DATE: 20170227

DOCKET: C61166

LaForme, Pepall and Pardu JJ.A.

BETWEEN

Jocelyn Hebditch

Plaintiff (Appellant)

and

Jeanne Birnie, Michael Birnie and Ted
    Seddon

Defendants (Respondents)

John J. Adair, for the appellant

Gary J. Marcuccio, for the respondent Michael Birnie

Andrew E. Steinman, for the Estate of Jeanne Birnie

Heard: February 21, 2017

On appeal from the order of Justice Alexander D. Kurke of
    the Superior Court of Justice, dated September 23, 2015.

ENDORSEMENT

[1]

Following oral argument, we
dismissed the appeal
    with reasons to follow. These are those reasons.

Chronology

[2]

The appellant was the personal caregiver for
    Jeanne Birnie, now deceased.  As a result of an accident on March 16, 2007, the
    appellant slipped and fell at the former residence of the deceased.  On July
    26, 2007, the appellant issued a statement of claim claiming damages against
    Jeanne Birnie as an incompetent person with Michael Birnie as her power of
    attorney. It was served on August 21, 2007.

[3]

Michael Birnie is Jeanne Birnies son and a
    senior lawyer in North Bay.  He spoke with counsel for the appellant and said that
    his mother was not incompetent.  The action was subsequently discontinued.

[4]

On February 25, 2008, the appellant issued a new
    statement of claim claiming damages from Jeanne Birnie, Michael Birnie, and
    another defendant.  On July 10, 2008, Michael Birnie wrote to counsel for the
    appellant advising that he and Jeanne Birnie could assure counsel that they had
    absolutely no responsibility, nor did they take any active role, in the
    maintenance of the premises.  In the event that the appellant did not agree to
    withdraw her action against him, he would be taking various steps including
    bringing a motion for summary judgment to dismiss the action as against him and
    would be obliged to seek costs.

[5]

On August 14, 2008, counsel for Jeanne Birnie
    wrote to the appellant advising that she was determining whether her client
    required a litigation guardian.  On September 2, 2008, counsel for Michael
    Birnies insurers wrote to counsel for the appellant advising that their
    instructions were to seek an immediate dismissal of the action against Michael
    Birnie.  By correspondence dated September 9, 2008, the statement of defence of
    Jeanne Birnie, a mentally incapable person, represented by her litigation
    guardian appears to have been sent to opposing counsel.  In the pleading, she
    admits that she was a patient in the care of the appellant and states that the
    appellant was hired to care for her personal welfare and for the care and
    maintenance of the house.  She denied the allegations of negligence and stated
    that the only duties and obligations required of her were those set forth in
    the
Occupiers Liability Act
, R.S.O. 1990, c.
    O.2 (OLA).  She denied any breach of those.

[6]

On September 10, 2008, counsel for the appellant
    wrote to counsel for Michael Birnies insurer stating that [f]urther to our
    conversation of last week, and your letter of September [1]2
th
,
    2008, I confirm that I am prepared to dismiss the action against Mr. Birnie.
    The consent to the dismissal was dated September 11, 2008.  The consent order
    dismissing the action and any cross-claims by and against Michael Birnie was
    dated September 26, 2008 (the Consent Order).  Jeanne Birnie died on December
    8, 2009.

[7]

Pursuant to the March 24, 2011 consent of the
    appellant, an order dated April 13, 2011 was issued permitting the Estate of Jeanne
    Birnie to amend her statement of defence to plead that she was not an occupier
    under the OLA.

Motion to Set
    Aside Consent Order

[8]

Approximately seven years after the September
    26, 2008 Consent Order, the appellant moved under r. 59.06(2)(a) to set aside
    the Consent Order on the basis of facts discovered after the order was made
    (Jeanne Birnies incompetence at the date of loss) and asked, in the alternative,
    that the Estate of Jeanne Birnie be estopped from taking the position that she
    was incompetent at the time of the accident.

[9]

The motion judge dismissed the motion. Among
    other things, he focused on whether the new facts were available by the
    exercise of reasonable diligence at the time of the consent order and
    determined that they were.

Grounds of Appeal

[10]

Before us, the appellant asserted that the
    motion judge misapprehended the record and never considered the deceaseds
    statement of defence in which the appellant alleges the deceased had admitted
    that she was an occupier under the OLA.  Secondly, the appellant submits that
    the motion judge misdirected himself in his application of the test under r. 59
    in failing to address the interests of justice.

[11]

We reject these submissions.

[12]

First, there was no clear and unambiguous
    admission in the statement of defence of the deceased.  Second, it would appear
    that this admission argument was not made before the motion judge nor was it
    advanced in the appellants factum. Third, we are not persuaded that
    consideration of such a factor would have made any difference to the outcome.

[13]

Whether one applies the dicta in
Tsaoussis
    (Litigation Guardian of) v. Baetz
(1998), 41 O.R. (3d) 257 (C.A.)

as the parties and
    the motion judge did or, more properly, the test applicable to setting aside a
    consent order (see for example
Rick v. Brandsema
, 2009 SCC 10, [2009] 1 S.C.R. 295 and
Monarch
    Construction Ltd. v. Buildevco Ltd
.
, 1988 CarswellOnt 369 (C.A.), the same result ensues.  As is
    evident from the chronology, there was no factual or legal basis reasonably
    available on which to set aside the Consent Order and the interests of justice
    do not suggest otherwise.

[14]

Before us, counsel advised that the appellant was
    not pursuing her argument based on estoppel.

[15]

For these reasons, the appeal is dismissed.  The
    appellant is to pay the costs of the respondent, Michael Birnie, fixed in the
    amount of $5,000, and of the Estate of Jeanne Birnie, fixed in the amount of $2,500,
    both sums inclusive of disbursements and applicable tax.

H.S. LaForme
    J.A.

S.E. Pepall J.A.


G. Pardu
    J.A.



