Mariano (Estate)

Mariano (Estate)

The appeal is allowed and cross-appeal dismissed: the trial judge was entitled to order judgment in accordance with the offer to settle and to permit equitable set-off, but she lacked evidentiary basis and reasons to extinguish the remainder of the bank's debt, so paragraph two of the trial judgment is varied to...

Source-derived case information.

Citation
C40265
Parties
Plaintiff (respondent): The Estate of Merlino Mariano, by its Litigation Administrator, Gloria Mariano; Plaintiff (respondent): Gloria Mariano; Defendant (appellant): Canadian Imperial Bank of Commerce; Defendant (appellant): Clarica Life Insurance Company
Court
Court of Appeal for Ontario
Jurisdiction
Canada
Judgment Date
12 March 2004
Procedural Posture
Civil / Appeal to Court of Appeal for Ontario From Judgment Dated June 3, 2003; Decision Rendered March 12, 2004
Outcome
Appeal allowed; cross-appeal dismissed; paragraph two of the trial judgment varied
Legal Topics
Offer to Settle, Equitable Set Off, Settlement, Costs, Judgment Variation
Source Language
english
Civil Equity Civil Procedure Offer to Settle Equitable Set Off Settlement Costs Judgment Variation

Source-derived case record

Summary, issues, holding and outcome

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Parties

The Estate of Merlino Mariano, by its Litigation Administrator, Gloria Mariano

Plaintiff (respondent)

Gloria Mariano

Plaintiff (respondent)

Canadian Imperial Bank of Commerce

Defendant (appellant)

Clarica Life Insurance Company

Defendant (appellant)

Procedural Posture

Civil / Appeal to Court of Appeal for Ontario From Judgment Dated June 3, 2003; Decision Rendered March 12, 2004

Legal Issues

  1. 1 Whether the trial judge properly ordered judgment in accordance with an offer to settle
  2. 2 Whether equitable set-off was properly permitted
  3. 3 Whether the trial judge properly extinguished the remainder of the bank's debt without evidentiary foundation

Ratio Decidendi

The appeal is allowed and cross-appeal dismissed: the trial judge was entitled to order judgment in accordance with the offer to settle and to permit equitable set-off, but she lacked evidentiary basis and reasons to extinguish the remainder of the bank's debt, so paragraph two of the trial judgment is varied to specify that monies paid pursuant to the offer shall be used to set off the plaintiffs' indebtedness to the defendants.

Court Disposition

Appeal allowed; cross-appeal dismissed; paragraph two of the trial judgment varied

Orders

  • All monies paid pursuant to the offer to settle shall be used to set-off the indebtedness of the plaintiffs to the defendants.
  • Appeal allowed and cross-appeal dismissed.