Wheeler v. The General Accident Insurance Company of Canada
The motion judge's refusal to set aside the Notice of Discontinuance was an exercise of discretion and there was no basis for appellate intervention; even assuming error in assessing prejudice, the appellant failed to demonstrate the requisite special circumstances, therefore the appeal is dismissed.
Source-derived case information.
- Citation
- C43477
- Parties
- Appellant: Leonard Wheeler; Respondent: The General Accident Insurance Company of Canada and/or CGU Insurance Company of Canada
- Court
- Court of Appeal for Ontario
- Jurisdiction
- Canada
- Judgment Date
- 30 January 2006
- Procedural Posture
- Civil / Appeal From Superior Court Order
- Outcome
- Appeal dismissed
- Legal Topics
- Notice of Discontinuance, Setting Aside Discontinuance, Discretionary Relief, Special Circumstances, Costs
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Leonard Wheeler
Appellant
The General Accident Insurance Company of Canada and/or CGU Insurance Company of Canada
Respondent
Procedural Posture
Civil / Appeal From Superior Court Order
Legal Issues
- 1 Whether the motion judge erred in refusing to set aside the Notice of Discontinuance
- 2 Whether the appellant demonstrated special circumstances sufficient to set aside the discontinuance
- 3 Whether the appellate court should intervene in the exercise of the motion judge's discretion
Ratio Decidendi
The motion judge's refusal to set aside the Notice of Discontinuance was an exercise of discretion and there was no basis for appellate intervention; even assuming error in assessing prejudice, the appellant failed to demonstrate the requisite special circumstances, therefore the appeal is dismissed.
Court Disposition
Appeal dismissed
Orders
- Appeal dismissed
- Costs to respondent fixed at $6,000 inclusive of G.S.T. and disbursements
Full Case Text
Judgment text and source record
1 paragraphs
Wheeler v. The General Accident Insurance Company of Canada Collection Decisions of the Court of Appeal Date 2006-01-30 Docket numbers C43477 Judges Moldaver, Michael James; Cronk, Eleanore Ann; LaForme, Harry Smith Subject Civil Decision Content DATE: 20060130 DOCKET: C43477 COURT OF APPEAL FOR ONTARIO RE: LEONARD WHEELER (Plaintiff (Appellant)) – and – THE GENERAL ACCIDENT INSURANCE COMPANY OF CANADA and/or CGU INSURANCE COMPANY OF CANADA (Defendants (Respondents)) BEFORE: MOLDAVER, CRONK AND LAFORME JJ.A. COUNSEL: Paul R. Sweeny for the appellant Raymond A.D. watt for the respondent HEARD & ENDORSED: January 27, 2006 On appeal from the order of Justice Patrick Flynn of the Superior Court of Justice dated April 6, 2005 made at Hamilton. APPEAL BOOK ENDORSEMENT [1] The refusal to set aside the Notice of Discontinuance in action 5411/98 was discretionary. We see no basis for appellate intervention with the manner in which the motion judge exercised his discretion. Assuming without deciding that the motion judge may have erred in his assessment of prejudice, the test for special circumstances has not been met in this case. The appellant did not pursue any other grounds of appeal. Accordingly, the appeal is dismissed with costs to the respondent fixed at $6,000 inclusive of G.S.T. and disbursements.