Court File and Parties
Court File No. 420/07
Date: 20080228
ONTARIO
SUPERIOR COURT OF JUSTICE
Divisional Court
B E T W E E N:
DAVID A. TAL Appellant/Respondent
- and -
VERONICA BARBAR KOOR also known as V. Koor and MICHAEL T. KOOR also known as MICHAEL KOOR Respondents/Applicants
Counsel: Self represented L. Viet Nguyen for the Respondent
Heard: January 16, 2008
Reasons for Decision
C. CAMPBELL J.:
[1] This matter was referred to the motions list by Molloy J. sitting as a motions judge in the Divisional Court. Before her was a motion to quash an appeal from the Master brought by Tal.
[2] Rather than quashing the appeal, the matter was transferred to the motions list for hearing of the appeal itself. Mr. Tal initially objected to the appeal itself proceeding on the basis that he was prepared only to deal with the motion to quash.
[3] It was pointed out to Mr. Tal that his motion record dealt with the substance of the appeal. Mr. Tal was further advised that if there were other documentary records or further submissions he wished to make, these could be made in writing. They were subsequently received on January 22, 2008.
[4] The Respondent's record contains a Notice of Appeal where 13 grounds are set out. One of the complaints made in the Notice of Appeal was that the Master did not have a court reporter present. Tal did not ask for one before me and when asked, responded that he did not require a reporter.
[5] Mr. Tal remains of the view that he is entitled to utilize to his advantage those specifics of the Rules of Civil Procedure that he chooses, without regard to the other obligations on a party mandated by the Rules.
[6] Justice Pitt set aside a noting in default that Mr. Tal obtained before the Registrar. The Defendants were granted 10 days to deliver a Statement of Defense. Mr. Tal did not agree with the form of Order prepared by counsel for the defendant. As a result, the defendants could not file their Statement of Defence, and Mr. Tal after the passage of 15 days again noted the Defendants in default.
[7] The second noting in default was set aside by the Master, and it is from that decision that Mr. Tal now appeals.
[8] During his presentation, it became apparent that Mr. Tal was not familiar with Rule 1.04. It was his belief that by noting the Defendants in default for the second time, he could restore the default judgement that had been set aside by Pitt J.
[9] Mr. Tal was of the view that he was entitled to note the Defendants in default, irrespective of whether the Order arising from the setting aside was entered. He did not seem to appreciate that the Statement of Defence could not be filed until the Order was entered. Mr. Tal seemed to think that the obligation was on the defence if they wanted to file within the ten day period to accept his form of Order since he had rejected the defence's form.
[10] I have examined each of the 13 grounds of appeal. With the exception of one ground, there is either no evidentiary basis in support or the ground is not tenable in law.
[11] The one ground for which there is some merit is the lack of reasons of the Master. I accept that it would have been preferable had the Master delivered reasons. In my view, reasons were not necessary in this matter. The result was obvious when it was revealed that the defence could not file its Statement of Defence within the 10-day period. In any event, the Master had discretion, which she clearly exercised.
[12] It is indeed unfortunate that some self-represented litigants think that by reading the Rules of Civil Procedure, they can achieve a result that ignores the overall purpose of the Rules as set out in Rule 1.04, and the discretion that will likely be exercised by judges and masters to achieve that end.
[13] Mr. Tal continues to believe he has a default judgment that he is entitled to enforce.
[14] On the material before me, including the written submissions, I conclude there is no merit on the appeal, which is hereby dismissed.
[15] The defence will have 14 days within which to make written submissions on costs, and Mr. Tal will have a further two weeks to respond.
C. CAMPBELL J.
Released:
Court File No. 420/07
Date: 20080228
SUPERIOR COURT OF JUSTICE
Divisional Court
B E T W E E N:
DAVID A. TAL Appellant/Respondent
- and -
VERONICA BARBAR KOOR also known as V. Koor and MICHAEL T. KOOR also known as MICHAEL KOOR Respondent/Applicant
REASONS FOR JUDGMENT
C. CAMPBELL J.
RELEASED: February 28, 2008