



COURT OF APPEAL FOR ONTARIO

CITATION: Whitfield v. Whitfield, 2017 ONCA 995

DATE: 20171218

DOCKET: C64198

Hourigan, Brown JJ.A. and Himel J. (
ad hoc
)

BETWEEN

Bryan Whitfield

Defendant (Respondent)

and

Dr. Agnes Jane Whitfield

Plaintiff (Appellant)

Dr. Anges Whitfield, appearing in person

Matthew Gourlay, for the respondent, Bryan Whitfield

Heard and released orally: December 13, 2017

On appeal from the judgment of Justice Cory A. Gilmore of
    the Superior Court of Justice, dated August 2, 2017.

REASONS FOR DECISION

[1]

The trial judgment dated May 1, 2014 granted Dr. Whitfield damages for
    sexual assault against her brother, Bryan Whitfield and dismissed his
    counter-claim for defamation.

[2]

By order dated July 20, 2016, this court allowed
    Mr. Whitfields appeal, set aside the trial judgment, dismissed Dr. Whitfields
    claim against him, and granted judgment in his favour on his counter-claim in
    the amount of $5,000.

[3]

By order dated February 2, 2017, the Supreme
    Court of Canada dismissed Dr. Whitfields application for leave to appeal the
    order of this court.

[4]

Dr. Whitfield thereupon moved in the Superior
    Court of Justice under rules 59.06(1) and (2)(a) of the
Rules of
    Civil Procedure
to vary the trial judgment. The motion
    judge dismissed the motion. Dr. Whitfield appeals.

[5]

We dismiss the appeal. The motion judge
    correctly concluded that she did not have jurisdiction to hear the appellants
    motion that sought to vary a trial judgment that had been set aside by this
    court. The order to which Dr. Whitfield is subject is that of this court, not
    the trial judgment.

[6]

As well, we agree with the motion judge, for the
    reasons she gave, that there was no fraud that would engage r. 59.06(2)(a) or
    an accidental slip that would fall within r. 59.06(1).

[7]

The appeal is dismissed.

[8]

Dr. Whitfield shall pay Mr. Whitfield his costs of the
    appeal and related motion for a stay fixed at $6,732.00, inclusive of
    disbursements and applicable taxes.

C.W. Hourigan J.A.
David Brown J.A.
Himel J.


