In Griffiths v. Zambosco, 2001 CanLII 24097 (ON CA), the Ontario Court of Appeal (“ONCA”) concluded that failure to sue is a bar to recovery of any compensation, even if the party to a lawsuit may otherwise have been entitled to compensation had she sued.
In this case the Plaintiff sued the Appellant for negligence in respect of a vendor take back mortgage to the Plaintiff and his then-wife. The Plaintiff’s ex-wife refused to join the proceeding as a plaintiff and so the Plaintiff added her as a defendant.
The trial judge found that the Appellant was negligent and awarded damages of close to $300,000 to both the Plaintiff and his ex-wife (almost $150,000 each).
On appeal, the ONCA agreed with the trial judge that the Appellant owed a duty of care to both the Plaintiff and to the Plaintiff’s ex-wife.
However, the ONCA did not agree with the trial judge that the Appellant was liable to the Plaintiff’s ex-wife. The ONCA advised that the Plaintiff’s ex-wife did not sue the Appellant, nor did she counterclaim against the Appellant when she was added as a defendant in the proceeding by the Plaintiff.
The ONCA opined that “a party who has not sought relief in the relevant pleadings cannot obtain a judgment” and that the order that the Plaintiff obtained adding his ex-wife to the proceeding as a defendant “did not expose” the Appellant to a claim for damages by the Plaintiff’s ex-wife. The ONCA further cautioned that a “joint tenant is not, by the existence of the joint tenancy, the agent of the other” and that joint tenants “have a separate, albeit indivisible, interest in the jointly held asset”.
In conclusion, the ONCA found that the Appellant “should not be required to compensate a defendant who did not seek compensation from him in the action” and set aside the part of the judgment against the Appellant requiring him to compensate the Plaintiff’s ex-wife.
This case provides a cautionary tale for those with a potential claim: you need to sue or you will not receive any order for compensation from the courts.
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