Umlauf v. Umlauf et al.,

Umlauf v. Umlauf (2001), 142 O.A.C. 328 (CA)

MLB headnote and full text

Temp. Cite: [2001] O.A.C. TBEd. MR.076

Derek Umlauf (plaintiff/appellant) v. Suzanne Florence Umlauf and Sean Begley (defendants/respondents)

(C35166)

Indexed As: Umlauf v. Umlauf et al.

Ontario Court of Appeal

Finlayson, O'Connor and MacPherson, JJ.A.

March 27, 2001.

Summary:

A husband and wife separated. The wife remained in the matrimonial home. The husband went to the matrimonial home to discuss some marital problems. He was attacked and beaten by his wife's brother. He was comatose for four days. He suffered permanent brain damage and was now unable to work. He sued his wife and his brother-in-law for damages. The defendants were noted in default.

The Ontario Superior Court, in a decision reported at [2000] O.T.C. Uned. A04, awarded damages against the brother-in-law and dismissed the action against the wife. The husband appealed the dismissal of the action against the wife and the award of damages.

The Ontario Court of Appeal allowed the appeal in part. The court held that there was no basis for dismissal of the action against the wife. However, the court declined to interfere with the assessment of damages.

Practice - Topic 5608

Judgments and orders - Default judgments - Assessment of damages - The plaintiff sued his wife and brother-in-law for damages - They were noted in default - The plaintiff sought an assessment of damages - The trial judge examined the statement of claim and the facts of the action and concluded that there was no basis for holding the wife liable for damages - The trial judge awarded damages only against the brother-in-law - The Ontario Court of Appeal allowed the plaintiff's appeal - On an assessment of damages following a noting in default, the trial judge was not authorized to enter into an inquiry into the allegations and facts of the case in order to dismiss the action against the wife.

Cases Noticed:

Family Trust Corp. v. Harrison (1986), 7 C.P.C.(2d) 1 (Ont. Dist. Ct.), refd to. [para. 8].

Beals v. Saldanha (1998), 81 O.T.C. 161; 27 C.P.C.(4th) 144 (Gen. Div.), refd to. [para. 9].

Statutes Noticed:

Rules of Civil Procedure (Ont.), rule 19.02(1) [para. 6].

Counsel:

Donald A. McNeill, for the appellant;

No one for the respondents.

This appeal was heard on March 16, 2001, before Finlayson, O'Connor and MacPherson, JJ.A., of the Ontario Court of Appeal. On March 27, 2001, Finlayson, J.A., released the following judgment for the court.