Citation and Court Information
CITATION: Toney v. Singh, 2011 ONSC 746
DIVISIONAL COURT FILE NO.: 530/10
DATE: 20110131
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
BETWEEN:
ALVIN TONEY and ICILDA TONEY Plaintiffs (Moving Parties)
– and –
NIRMALA SINGH, E.B.B. INC. and EDUCATION BEYOND BOUNDARIES Defendants (Responding Parties)
Counsel: Elsie E. Peters and Abba Chima, for the Plaintiffs (Moving Parties)
James Clark and Paul Stern, for the Defendants (Responding Parties)
HEARD at Toronto: January 31, 2011
Oral Reasons for Judgment
LEDERER J. (ORALLY)
[1] This is a motion seeking leave to appeal the order of Matlow J. made on October 18, 2010.
[2] In that order, His Honour set aside the judgment of E. Macdonald J., dated June 22, 2010. The decision of E. Macdonald J. had been made in circumstances where the defendant had failed to attend at court even though the personal defendant was aware of the trial date which had been made peremptory to her.
[3] The motion heard by Matlow J. relied on rule 52.01(3) of the Rules of Civil Procedure. It provides:
A judge may set aside or vary, on such terms as are just, a judgment obtained against a party who failed to attend at the trial.
[4] Matlow J. set aside the judgment but imposed terms requiring the defendants to pay the costs of the motion he heard and costs thrown away. The judge also required the defendant to provide security for any future judgment by paying into court the sum of $65,000.
[5] In bringing this motion counsel for the moving parties said she relies on both rule 62.02(4)(a) and rule 62.02(4)(b). They state:
(4) Leave to appeal shall not be granted unless,
(a) there is a conflicting decision by another judge or court in Ontario or elsewhere on the matter involved in the proposed appeal and it is in the opinion of the trial judge hearing the motion, desirable that leave to appeal be granted; or
(b) there appears to the judge hearing the motion good reason to doubt the correctness of the order in question and the proposed appeal involves matters of such importance that, in his or her opinion, leave to appeal should be granted.
[6] These clauses provide two separate and distinct basis for leave to be granted. The first begins by requiring that there be a conflicting decision by another judge or in another court. The second starts by directing that there must be good reason to doubt the correctness of the order in question.
[7] Counsel for the plaintiffs, the moving parties, submitted there is a conflicting decision. In their factum they rely on the case of Stabile v. Milani (2002) Carswell Ont. 3292, where the judge suggested that rule 52.01(3) is to be invoked “…in a situation where the parties seeking to set aside the judgment failed to attend due to inadvertence. In my view, it is not properly applied in the case where the defendant deliberately chose not to defend the trial, knowing full well that the trial would proceed in her absence and that judgment would result.”
[8] The rule provides a discretion. It allows whatever prejudice has been caused to be ameliorated by the imposition of terms. The decision of Matlow J. is consistent with that directive. To treat the quotation from Stabile v. Milani, as a statement of principle, not to be disturbed, would be to detract from the judge’s discretion. It is simply the imposition of that discretion in another circumstance. As such, it does not conflict with the decision of Matlow J.
[9] I should point out that in Stabile v. Milani, the party relying on rule 52.01(3) had already been required to set aside a default judgment. Then, when the matter came back to trial, she failed to appear because the estate which bore the liability was judgment proof. Ten years later, when the administration of the estate was attacked and it appeared that she might be personally liable, she attempted to set the judgment aside. It is in that context that the judge said what is quoted above.
[10] There is nothing before me to show that the failure of the defendant was the result of the sort of calculation involved in Stabile v. Milani. In the factum the defendant relied on before Matlow J., she explained the circumstances of her default. She did not handle the litigation properly. She explained her missteps. What she did may have been wrong but there is no reason to suggest that what the judge did was not entirely within the discretion the rule offers.
[11] Counsel also submitted that there was a reason to doubt the correctness of the decision of Matlow J. This submission relied on the view that the process followed by the judge could not have allowed for a proper consideration of the issue. Counsel said the defendants did not provide a factum which would have provided the judge with an understanding of the principles the motion relied on and that counsel appearing for their client was not permitted to make full submissions. Suffice it to say, counsel for the responding party does not agree and points out that the motion was before Matlow J. on two separate occasions. It does not matter. There is nothing before me to suggest that His Honour did not have before him all that was needed or that he did not consider the applicable principles.
[12] To the contrary, to me, his decision is an effort to balance the prejudice to the plaintiffs against the right of a defendant who, very late in the game, came to appreciate the seriousness of what she confronted. There is no reason to doubt the correctness of his decision.
[13] The motion is dismissed.
COSTS
[14] Counsel for the plaintiff seeks costs of $800 regardless of the outcome. Counsel for the defendants says costs should follow the event but agrees that $800 is an appropriate amount. Costs to the plaintiff in the cause, in the amount of $800.00. Counsel for the plaintiff has requested that I direct the trial to move quickly but at the same time says that she may need more discovery. The speed with which this moves forward is in the hands of the lawyers.
LEDERER J.
Date of Reasons for Judgment: January 31, 2011
Date of Release: February 24, 2011
CITATION: Toney v. Singh, 2011 ONSC 746
DIVISIONAL COURT FILE NO.: 530/10
DATE: 20110131
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
LEDERER J.
BETWEEN:
ALVIN TONEY and ICILDA TONEY Plaintiffs (Moving Parties)
– and –
NIRMALA SINGH, E.B.B. INC. and EDUCATION BEYOND BOUNDARIES Defendants (Responding Parties)
ORAL REASONS FOR JUDGMENT
LEDERER J.
Date of Reasons for Judgment: January 31, 2011
Date of Release: February 24, 2011