CITATION: Heasman v. Mac’s Convenience Store Inc., 2015 ONSC 2290
COURT FILE NO.: DC-14-0030, 13-091 SC
DATE: 20150409
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
B E T W E E N:
Donna Heasman
I. Robertson, for the Respondent/Plaintiff
Plaintiff (Respondent)
- and -
Mac’s Convenience Store Inc. and Mac’s Convenience Store Inc. Head Office
D. Lipkus, for the Appellants/Defendants
Defendants (Appellants)
HEARD: March 27,2015
REASONS FOR JUDGMENT
[On appeal from the judgment of Deputy Judge H. Jane Robertson, dated March 6, 2014]
F. Dawson J.
[1] The respondent (plaintiff in the action) obtained default judgment against the appellants on September 18, 2013. The appellants (defendants in the action) moved to set it aside. In brief written reasons dated March 6, 2014 a Deputy Judge of the Small Claims Court dismissed that application. The appellants appeal from that decision.
[2] The action is for damages for personal injury arising from an alleged slip and fall accident in a Mac’s Convenience Store in Meaford, Ontario. An affidavit of service from a Toronto process service firm indicated that the Plaintiff’s Claim was served on April 15, 2013 on one “Jakie Fernandez, Manager” at the address of the appellant’s head office in Toronto. The affidavit of service was sworn on April 19, 2013.
[3] On the motion to set the default judgment aside the appellants filed an affidavit from Jacqueline Fernando stating that she was the receptionist at the appellants’ head office, not a manager, and swearing that she had not been served with any documents on April 19, 2013. However, the affidavit went on to indicate that Ms. Fernando has considerable experience handling legal documents and that she had no recollection of having been served with the Plaintiff’s Claim. The affidavit also indicates that a search for the Plaintiff’s Claim was undertaken at the office where the document was said to have been served but it could not be found. Ms. Fernando swore that there is a sign on her desk indicating that she is a receptionist, not a manager, and that she had never misspelled her name to a process server.
[4] Ms. Fernando’s affidavit also indicates that she has been advised by a senior official at Mac’s that Mac’s has a meritorious defence on the facts. A draft Statement of Defence was attached as an exhibit to her affidavit.
[5] In her reasons dismissing the application to set the default judgment aside the Deputy Judge correctly referred to the governing test set out in Rule 11.06 of the Rules of the Small Claims Court. To succeed the appellants were required to satisfy the Deputy Judge that they had a meritorious defence, a reasonable explanation for their default and that their motion was made as soon as reasonably possible in all the circumstances.
[6] The Deputy Judge found that the motion had been brought in a timely fashion. However, she held that she was not convinced that there was a meritorious defence and that she was not satisfied with the explanation given for the default.
[7] The standard of review is correctness with respect to questions of law and palpable and overriding error with respect to questions of fact. The discretion of the Deputy Judge is entitled to deference unless it is shown that her discretion has been exercised on wrong principles or based upon a misapprehension of evidence such that there is a palpable and overriding error: Starland Contracting Inc. v. 1581518 Ontario Ltd., [2009] O.J. No.2480 (Div. Ct.), at paras. 7, 26; Mountain View Farms Ltd. V. George Donald McQueen, 2014 ONCA 194, at para. 55.
[8] Turning first to the question of a meritorious defence, I am persuaded that the Deputy Judge erred by misapprehending the evidence such that there is a palpable and overriding error.
[9] At the outset, I would point out that the draft Statement of Defence was poorly drafted and full of errors in relation to grammar and gender. Counsel appearing on the appeal acknowledges this. That understandably troubled the Deputy Judge who described the draft Statement of Defence as having a “cookie cutter nature”. She noted that the draftsperson had paid little attention to detail. These comments are apt. However, it is my respectful view that thereafter the Deputy Judge said a number of things which show that she overlooked substantive aspects of the draft Statement of Defence in ways which I conclude amount to a misapprehension of the evidence and constitute palpable and overriding error.
[10] The Deputy Judge stated that the Statement of Defence implies in paragraph six that the respondent did not fall in the store but then in the next paragraph implicitly admits that she did fall in the store because an employee is described as inquiring about the extent of her injuries. She saw these paragraphs as inconsistent. The Deputy Judge also said that while the Plaintiff’s Claim makes specific reference to the floor having been washed as a factor contributing to the accident, the Statement of Defence makes no attempt to deal with that allegation except by some oblique references in paragraph three.
[11] Having carefully reviewed the poorly drafted Statement of Defence for substantive content I am of the view that the Deputy Judge failed to correctly understand the proposed pleading or its legal effect.
[12] First, I turn to paragraphs six and seven of the Statement of Defence. Paragraph six states that “if the Plaintiff fell at the store, as alleged in the Plaintiff’s Claim, the allegedly wet floor could not have been anticipated or prevented despite the diligence of Mac’s in its maintenance obligation” (emphasis added). Paragraph seven indicates that while at the store “relating solely to her alleged shoulder injury” a Mac’s employee asked the respondent whether she needed medical assistance and she said that she did not.
[13] Upon a careful reading of the Statement of Defence, I conclude that the appellants were pleading in the alternative. Although the word “negligence” does not appear in the Plaintiff’s Claim it is apparent the claim is based on negligence. Paragraph six denies that there was any negligence on the part of the appellants that was related to any fall suffered by the respondent. In other parts of the Statement of Defence the appellants’ refer to various facts to support their pleading that there was no negligence on their part.
[14] Paragraph seven is not inconsistent with paragraph six. Rather, it is directed to whether, if the respondent fell, an injury was sustained as a result and to the extent of any injury.
[15] As the Deputy Judge concluded there was inconsistency in these paragraphs and relied upon that as a basis to conclude a meritorious defence was not available, she erred.
[16] Turning to the Deputy Judge’s statement that the Statement of Defence makes no attempt to deal with the washed floor except obliquely in paragraph three, I find this also constitutes a significant misapprehension of the evidence.
[17] Paragraph six of the Plaintiff’s Claim alleges that the floor was wet in the area of the store where the respondent fell, “possibly/probably from having been washed.” In paragraph three of the Statement of Defence the appellants plead that the store was at all material times reasonably safe and that appropriate policies and procedures were in place, including reasonable inspection and store maintenance. These must be the “oblique references” in paragraph three that the Deputy Judge said were the only references relevant to the “washed” floor. However, the appellant correctly points out that paragraph six pleads that the “allegedly wet floor could not have been anticipated or prevented despite the due diligence of Mac’s in its maintenance obligation”. This paragraph has a direct bearing on the wet or washed floor issue but was not taken into account by the Deputy Judge. In the circumstances this also amounts to a significant misapprehension of the evidence.
[18] Overall it seems to me that the Deputy Judge focused on the obvious drafting errors and sloppy workmanship demonstrated in the Statement of Defence and concluded that these undermined the proposed defence. Reading the Plaintiff’s Claim carefully and in its entirety, and bearing in mind that the Plaintiff’s Claim is based on establishing negligence, I find the Deputy Judge erred in concluding that the Statement of Defence did not raise a meritorious defence.
[19] The respondent submits that the standard of a “meritorious defence” under Rule 11.06(a) of the Small Claims Court Rules is a higher standard than the standard of “an arguable case on the merits” which is used in respect of motions to set aside default judgments pursuant to Rule 19.08(2) of the Rules of Civil Procedure. There is some authority to support this submission: Door Doctor Inc. v. Associated Parking and Materials Ltd., 2012 100081 (S.C.C.); Coombs v. Curran, 2010 ONSC 1312, 100 O.R. (3d) 554 (S.C.J.). Assuming without deciding that such is the case, I conclude it does not affect the outcome here. However a meritorious defence might be described, the standard cannot be so high as to require a defendant to establish that there is a defence which is likely to succeed. The Statement of Defence proposed in this case, although sloppily drafted, does raise potential defences that are well understood and have been successful on occasion in the context of a claim for negligence in a slip and fall case. The Statement of Defence also raises the issue of contributory negligence on the part of the respondent.
[20] I turn now to the explanation for the default. The Deputy Judge was faced with completely conflicting affidavits. The process server swore that the document was served, although on someone named Fernandez, who was described as a manager, rather than on Ms. Fernando, who sat at a desk with a sign describing her as a receptionist. The Deputy Judge said, “It does not ring true to my ear that a process server of an apparently reputable company having no ties that I could discern to either plaintiff or her counsel would completely fabricate service of documents…”
[21] I would point out that the competing affidavit of Ms. Fernando does not necessarily require a finding of fabricated service in order to explain the default. The net result of Ms. Fernando’s affidavit is a statement that the respondent’s claim did not come to the appellants’ attention. Ms. Fernando swore that she did not recall being served and that a search of the location where service was said to have been made did not locate the document. In my respectful view, the Deputy Judge set the bar unreasonably high in apparently concluding that the appellants would have to establish that the process server fabricated before the test established by Rule 11.06 was met.
[22] The appellants put forth evidence that the claim did not come to their attention. In all the circumstances, I conclude that was sufficient to meet the test. This is particularly so given the preference of the courts for the determination of cases on their merits.
[23] The appeal is allowed and the default judgment and the costs orders below are set aside. The defendants shall file their Statement of Defence within 15 days. The costs of the action will be determined in the cause.
[24] If the parties are unable to agree on the costs of this appeal they should exchange costs outlines and written submissions limited to two pages which are to be filed with the court within 15 days.
F. Dawson J
Released: April 9, 2015
CITATION: Heasman v. Mac’s Convenience Store Inc., 2015 ONSC 2290
COURT FILE NO.: DC-14-0030, 13-091 SC
DATE: 20150409
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Donna Heasman
Plaintiff (Respondent)
- and –
Mac’s Convenience Store Inc. and Mac’s Convenience Store Inc. Head Office
Defendants (Appellants)
REASONS FOR JUDGMENT
Justice F. Dawson J
Released: April 9, 2015