Teliawala v. Sandhu, 2019 ONSC 2385
DIVISIONAL COURT FILE NO.: 313/18
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
BETWEEN:
PRAVINCHANDRA TELIAWALA also known as PETER TELIAWALA
Plaintiff/Respondent
– and –
MADHURI SANDHU, SUKHJINDER SANDHU, CITIBANK CANADA, AMAYA BREAD BAR, HEMANT BHAGWANI CONSULTING INC.
Defendants/Appellant
COUNSEL:
Silene Malhao, for the Plaintiff/Respondent
Amandeep Sidhu for the Appellant, Madhuri Sandhu
HEARD at Toronto: April 15, 2019
FAVREAU J. (Orally)
Overview
1The defendant, Madhuri Sandhu, appeals the order of the Small Claims Court dated May 22, 2018, dismissing her motion to set aside default judgment obtained by the plaintiff against her.
2Ms. Sandhu’s lawyer argues that the Deputy Judge made an error when he found that Ms. Sandhu had not presented a meritorious defence to the claim.
3In my view, the Deputy Judge made no error.
4The claim against Ms. Sandhu is that she used her position as an employee at Citibank Canada to induce the plaintiff into investing $30,000 in a fraudulent business project orchestrated by Ms. Sandhu and her husband, Sukhjinder Sandhu.
5Ms. Sandhu claims that she only became aware of the claim against her after she received a Notice of Examination on April 10, 2018. She claims that she then moved diligently to bring a motion to set aside the judgment against her. She also claims that the action against her has no merit because the transaction at issue took place between the plaintiff and her husband.
6In a very brief endorsement dated May 22, 2018, the Deputy Judge dismissed the motion, finding that Ms. Sandhu had no “credible defence”.
Standard of review
7On an appeal from the Small Claims Court, the standard of review is correctness for errors of law, and palpable and overriding for errors of fact or mixed fact and law: Housen v. Nikolaisen, 2002 SCC 33. An exercise of discretion is entitled to deference, unless the judge exercised his or her discretion on the wrong principles or “unless the decision is so clearly wrong as to amount to an injustice”: Mountain View Farms Ltd. v. McQueen, 2014 ONCA 194, at para. 55.
Test for setting aside default judgment
8The test set out in Rule 11.06 of the Rules of the Small Claims Court for setting aside default judgment requires the Court to be satisfied that:
(a) the party has a meritorious defence and a reasonable explanation for the default; and
(b) the motion is made as soon as is reasonably possible in all the circumstances.
9This test is similar to the common law test for setting aside default judgment, but the courts have recognized that “a meritorious defence” requires the moving party to meet a higher standard than demonstrating an “arguable defence” as required by the common law: Coombs v. Curran, 2010 ONSC 1312 (Div. Ct.), at para. 32; and Door Doctor Inc. v. Associated Paving and Materials Ltd., [2012] O.J. No. 6637 (Sm. Cl. Ct.), at para. 33.
Analysis
10In this case, while the Deputy Judge did not specifically address all elements of the test for setting aside default judgment, I am satisfied that he did not commit any errors in dismissing the motion on the basis that Ms. Sandhu had not established that she has a meritorious defence to the claim.
11As mentioned already, while the claim explicitly asserts that Ms. Sandhu induced the plaintiff into making the investment, and thereby participated in the alleged fraud, Ms. Sandhu’s evidence does not address this allegation. She simply asserts that the claim arises from a transaction between the plaintiff and her husband. Therefore, her evidence on the motion did not provide any defence to the claim that was in fact pleaded against her. Accordingly, I see no error in the Deputy Judge’s finding that Ms. Sandhu has not presented a credible defence.
12In addition, while the Deputy Judge did not explicitly address the issue of whether Ms. Sandhu was served with the claim, the plaintiff has certainly provided evidence that would support such a finding. There were evidently numerous efforts to serve Ms. Sandhu and her husband with the claim. The materials included an affidavit sworn by the plaintiff in which he states that he personally served a woman who he recognized as Ms. Sandhu whom he had met on a number of occasions, but who refused to identify herself as Ms. Sandhu.
13Accordingly, it was certainly open to the Deputy Judge to reject Ms. Sandhu’s assertion that she had never been served with the claim. In any event, given his finding that Ms. Sandhu’s defence had no merit, in applying the test set out in Rule 11.06 of the Rules of the Small Claims Court, it was not necessary for him to make such a finding.
14I find that the Deputy Judge did not make any errors in dismissing the motion to set aside the default judgment.
Conclusion
15The appeal is therefore dismissed.
16I have endorsed the Appeal Book and Compendium as follows: “The appeal is dismissed for reasons given orally today. Costs to the respondent in the amount of $2,556.00 payable within 30 days.”
___________________________ favreau J.
Date of Reasons for Judgment: April 15, 2019
Date of Release: April 16, 2019
CITATION: Teliawala v. Sandhu, 2019 ONSC 2385
DIVISIONAL COURT FILE NO.: 313/18
DATE: 20190415
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
BETWEEN:
PRAVINCHANDRA TELIAWALA also known as PETER TELIAWALA Plaintiff/Respondent
– and –
MADHURI SANDHU, SUKHJINDER SANDHU, CITIBANK CANADA, AMAYA BREAD BAR, HEMANT BHAGWANI CONSULTING INC. Defendants/Appellant
ORAL REASONS FOR JUDGMENT
favreau J.
Date of Reasons for Judgment: April 15, 2019
Date of Release: April 16, 2019