Court File and Parties

COURT FILE NO.: DC-06-00000067-0000 (SC 03-88799) DATE: 20070320

SUPERIOR COURT OF JUSTICE - ONTARIO DIVISIONAL COURT

RE: Yuk Ming Wan Appellant/Plaintiff v. Chester Kai Tong Wan Respondent/Defendant

BEFORE: Justice Cumming

COUNSEL: Both parties self-represented

HEARD: March 5 and 20, 2007

ENDORSEMENT

CUMMING J.

[1] The parties, both self-represented, appeared March 5, 2007. The appellant, Ms. Wan, is the former spouse of the respondent, Mr. Wan. The handwritten materials of the appellant are confusing, with many irrelevant materials in terms of the appeal and the respondent had not brought forward any responding materials at all.

[2] Ms. Wan has some eight proceedings commenced in Small Claims Court against Mr. Wan. (I have dealt with a separate appeal by Ms. Wan relating to these proceedings in DC 05-235 under a separate endorsement of March 5, 2007.)

[3] The appeal at hand deals with one of these eight proceedings, being what can be referred to as SC 03-88799 in Small Claims Court. Deputy Judge Godfrey in Small Claims Court had granted default judgment in SC 03-88799 in favour of Ms. Wan. Sometime later there was a pre-trial in another proceeding, SC 04-98799, before Deputy Judge Connolly. He discovered that there were a number of actions, some eight in all, in the Small Claims Court between the same parties and understandably was concerned about the monetary jurisdiction of that court because claims cannot be divided to come within the $10,000 limit of jurisdiction. He properly directed that all of the actions be considered by Judge Thomson to determine the jurisdiction question. However, in doing so he also set aside the default judgment granted by Deputy Judge Godfrey.

[4] On appeal by Ms. Wan to the Divisional Court, Justice Lane held October 18, 2005 that Deputy Judge Connelly erred in setting aside the default judgment in SC 03-88799 because that action was not before him and Ms. Wan had no notice her judgment was at risk.

[5] Mr. Justice Lane held:

“As to the enforcement of the judgment, I direct that it be stayed for 30 days to enable the defendant to bring a motion to set it aside on the ground he was not served. In [sic] such a motion is not brought on or before November 18, 2005, the plaintiff shall be free to enforce the Judgment.”

[6] Ms. Wan now appeals from the later order of Deputy Judge Killian in Small Claims Court dated January 12, 2006, setting aside the default judgment in SC 03-88799 and giving Mr. Wan until January 26, 2006 to file a defence, failing which the “default judgment stands.” The motion before Deputy Judge Killian was filed by Mr. Wan in Small Claims Court November 15, 2006.

[7] It was not clear from the record before me March 5, 2007, as to whether or not a statement of defence was ever filed in SC 03-88799.

[8] As of March 5, 2007, there was a great deal of confusion in the record given the multiplicity and apparent overlap of proceedings in Small Claims Court, the nature of the materials filed in support of the appeal, which include many irrelevant matters, and the absence of any materials at all from the respondent who seems confused by the multiplicity of the proceedings and the very brief endorsements in Small Claims Court.

[9] I called Mr. Wan’s sometime counsel from the Courtroom to try to gain elucidation; however, he had not been made aware of the appeal at hand.

[10] In the interest of gaining a better understanding of what has happened before making any decision, I adjourned this matter to March 20, 2007 at 9:00 am. I suggested to both parties that it would be purposeful to have evidence at that time as to whether Justice Lane’s Order and Deputy Judge Killian’s later Order of January 12, 2006 that a timely statement of defence be filed in 03-88799 was in fact filed, or if it was not filed, why it was not filed. I added that it would be helpful if Mr. Wan had his counsel review matters and appear to elucidate upon these matters.

[11] At the resumption of the hearing March 20, 2007, Mr. Wan produced a copy of his “Defence” and attached supporting materials in SC 03-88799. The Defence is marked as filed in Small Claims court January 24, 2006. This is within the time period stipulated by Deputy Judge Killian in his Order of January 12, 2006.

[12] Ms. Wan submits that there was no good reason for Deputy Judge Killian to set aside the default judgment. Although the reasons of Deputy Judge Killian were very brief and simply conclusory, it is apparent Deputy Judge Killiam exercised his discretion to allow Mr. Wan to defend the claim advanced in 03-88799 on the merits. There is no palpable and overriding error seen in the exercising of discretion by Judge Killian in making his Order dated January 12, 2006.

[13] For the reasons given, the appeal is dismissed.

[14] Considering all the circumstances, there are no costs awarded to either party in respect of the appeal at hand.

CUMMING J.

DATE: March 20, 2007