Court of Appeal for Ontario

Date: 2025-06-24
Docket: COA-24-CV-0653
Panel: Janet Simmons, Paul Rouleau, S.E. Pepall

Between

Herbert Watkins and Jacqueline Watkins
Plaintiffs (Appellants)

and

Capital Power (PDN) L.P., Deborah Jean Sheppard, Scott Graham Sheppard, Thomas James Sheppard, Trevor James Sheppard, Sheppland Farms Ltd. and Port Dover Farms Inc.
Defendants (Respondents)

Neil Colville-Reeves and Robert McGlashan, for the appellants
Kathryn A. McCulloch and Oliver Flis, for the respondents

Heard: 2025-06-17

On appeal from the order of Justice Elizabeth C. Sheard of the Superior Court of Justice, dated May 28, 2024.

Reasons for Decision

[1] On a motion at which the appellants were self-represented, in short reasons for decision, the motion judge dismissed their action for failing to appoint counsel or deliver a notice of intent to act in person under r. 15.04(8) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 (the “Rules”) after an order was made removing their counsel of record (the “removal order”) and for delay under r. 24.01 due to their failure to serve three of the respondent’s co-defendants within the prescribed time stipulated in the Rules. The three co-defendants had been served three, four, and forty-five days after the six-month limitation for service and no extension of time order had ever been sought or obtained by the appellants.

[2] We accept the appellants’ submission that the motion judge erred in relying on r. 15.04(8) to dismiss the action. The removal order was not issued and entered until almost four years after it was made and was not served on the appellants by their counsel as required under the Rules. The removal order was therefore not effective to remove counsel from the record: r. 15.05. The appellants’ counsel died prior to the respondent bringing its motion to dismiss the appellants’ action. Although the removal order was included at page 60 of the respondent’s sizable motion record seeking dismissal of the appellants’ action, we are not satisfied that that was sufficient to put the appellants on notice of any obligations that may have remained under the removal order following the death of their counsel.

[3] As for r. 24.01, in light of the motion judge’s error in relation to r. 15.04(8), there was no evidentiary basis for her finding that the appellants’ default was “intentional and contumelious”. Her finding that the appellants failed to comply with the removal order for an extensive period of time demonstrates that she failed to appreciate that the removal order was not effective to remove the appellants’ counsel of record through no fault of the appellants.

[4] The appellants conceded on appeal that their delay in moving the action forward was inordinate. However, in light of the fact that the appellants had been formally represented by two law firms (one of which obtained the removal order) and the ensuing confusion over whether the appellants were represented by counsel at any material time, we also conclude that the motion judge’s finding that there had been “inordinate and inexcusable delay for which the [appellants] are responsible” is unreasonable (emphasis added). The motion judge’s erroneous view that the removal order was effective to remove the appellants’ counsel also tainted this finding.

[5] The appeal is therefore allowed and the order dismissing the action, including the costs order against the appellants, is set aside. Costs of the appeal are to the appellants in the agreed upon amount of $20,000 inclusive of disbursements and HST.

Janet Simmons
Paul Rouleau
S.E. Pepall