Intact Insurance Company v. Kisel

Intact Insurance Company v. Kisel

The Court of Appeal allowed Intact's appeal because the hold harmless agreements, read plainly and in context of the settlement documents, only took effect when a claim (an action) was commenced by the service providers; therefore Intact had a reasonable explanation for not delivering defences, no prejudice to the plaintiffs would result from setting aside the noting of default and default judgments, and it was just to set them aside with directions that Intact deliver statements of defence within 30 days.

Citation
2015 ONCA 205
Parties
Defendant (appellant): Intact Insurance Company; Plaintiff (respondent): Yaroslava Kisel; Plaintiff (respondent): Rade Bijelic
Court
Court of Appeal for Ontario
Jurisdiction
Canada
Judgment Date
26 March 2015
Procedural Posture
Civil Appeal / Court of Appeal Appeal From Motion to Set Aside Noting of Default and Default Judgment (motion Judge Order)
Outcome
Appeal allowed; noting of default and default judgments set aside
Legal Topics
Default Judgment, Noting of Default, Hold Harmless Agreement, Setting Aside Default, Statutory Accident Benefits, Interpretation of Settlement Agreement, Prejudice
Source Language
English
Civil Procedure Insurance Law Contract Law Default Judgment Noting of Default Hold Harmless Agreement Setting Aside Default Statutory Accident Benefits +2 more

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Parties

Intact Insurance Company

Defendant (appellant)

Yaroslava Kisel

Plaintiff (respondent)

Rade Bijelic

Plaintiff (respondent)

Procedural Posture

Civil Appeal / Court of Appeal Appeal From Motion to Set Aside Noting of Default and Default Judgment (motion Judge Order)

Legal Issues

  1. 1 Whether the noting of default and the default judgment should be set aside under Rules 19.03(1) and 19.08(1)
  2. 2 Whether the hold harmless agreements were triggered by demand letters or only upon commencement of an action
  3. 3 Whether Intact had a reasonable explanation for failing to deliver statements of defence

Ratio Decidendi

The Court of Appeal allowed Intact's appeal because the hold harmless agreements, read plainly and in context of the settlement documents, only took effect when a claim (an action) was commenced by the service providers; therefore Intact had a reasonable explanation for not delivering defences, no prejudice to the plaintiffs would result from setting aside the noting of default and default judgments, and it was just to set them aside with directions that Intact deliver statements of defence within 30 days.

Court Disposition

Appeal allowed; noting of default and default judgments set aside

Orders

  • Noting of default and default judgments in the Kisel and Bijelic actions set aside
  • If either plaintiff wishes to continue, Intact must deliver a statement of defence within 30 days of release of reasons or each default will be reinstated