Umlauf v. Unlauf

Umlauf v. Unlauf

A trial judge conducting an assessment of unliquidated damages after defendants are noted in default may not re‑open or inquire into liability facts that are deemed admitted under Rule 19.02(1); the trial judge erred in refusing to treat the pleaded allegations as admitted and in dismissing the action against Suzanne Umlauf. Accordingly the Court of Appeal ordered the judgment amended to find the defendants jointly and severally liable, while upholding the trial judge's discretion to refuse an upward amendment of damages beyond the pleaded amounts.

Citation
C35166
Parties
Plaintiff (appellant): Derek Umlauf; Defendant (respondent): Suzanne Florence Umlauf; Defendant (respondent): Sean Begley
Court
Court of Appeal for Ontario
Jurisdiction
Canada
Judgment Date
27 March 2001
Procedural Posture
Civil Tort (personal Injury) / Occupiers' Liability / Civil Procedure / Appeal From Judgment and Assessment of Damages After Defendants Were Noted in Default (court of Appeal)
Outcome
Appeal allowed in part: trial judge's dismissal of claim against Suzanne Umlauf set aside; judgment amended to find both defendants jointly and severally liable; trial judge's award of damages and refusal to increase the claim otherwise upheld; costs to appellant.
Legal Topics
Default Judgment, Assessment of Damages, Duty of Care, Occupier Liability, Joint and Several Liability, Amendment of Statement of Claim
Source Language
English
Tort Occupiers' Liability Civil Procedure Family Law Default Judgment Assessment of Damages Duty of Care Occupier Liability +2 more

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Parties

Derek Umlauf

Plaintiff (appellant)

Suzanne Florence Umlauf

Defendant (respondent)

Sean Begley

Defendant (respondent)

Procedural Posture

Civil Tort (personal Injury) / Occupiers' Liability / Civil Procedure / Appeal From Judgment and Assessment of Damages After Defendants Were Noted in Default (court of Appeal)

Legal Issues

  1. 1 Whether a trial judge at an assessment of unliquidated damages may re‑examine or inquire into liability facts deemed admitted by a defendant noted in default under Rule 19.02(1)
  2. 2 Whether the trial judge properly dismissed the action against the occupier (Suzanne Umlauf) despite deemed admissions in the statement of claim
  3. 3 Whether the trial judge properly refused to increase damages beyond those pleaded

Ratio Decidendi

A trial judge conducting an assessment of unliquidated damages after defendants are noted in default may not re‑open or inquire into liability facts that are deemed admitted under Rule 19.02(1); the trial judge erred in refusing to treat the pleaded allegations as admitted and in dismissing the action against Suzanne Umlauf. Accordingly the Court of Appeal ordered the judgment amended to find the defendants jointly and severally liable, while upholding the trial judge's discretion to refuse an upward amendment of damages beyond the pleaded amounts.

Court Disposition

Appeal allowed in part: trial judge's dismissal of claim against Suzanne Umlauf set aside; judgment amended to find both defendants jointly and severally liable; trial judge's award of damages and refusal to increase the claim otherwise upheld; costs to appellant.

Orders

  • Judgment below amended to read that defendants Suzanne Florence Umlauf and Sean Begley are jointly and severally liable to the plaintiff for the damages suffered.
  • The trial judge's refusal to award damages in excess of those claimed in the Statement of Claim is not disturbed.