Court File and Parties
DIVISIONAL COURT FILE NO.: 2834/23
SUPERIOR COURT OF JUSTICE – ONTARIO
DIVISIONAL COURT
RE: Mohammad Ibrar Mula and BROTHERS AUTO MECHANIC INC., Appellants
- and -
travis parisien, jordan parisien, and one call plumbing and gasfitting, Respondents
BEFORE: Edwards RSJ, Myers and MacNeil JJ.
COUNSEL: Murad Ali Khan, for the Appellants
Tegan Stairs, for the Respondents
HEARD: September 12, 2024 at Ottawa (by Zoom)
ENDORSEMENT
[1]
Background
The appellants Mr. Mula and his company Brothers Auto Mechanic Inc. are defendants in an action in which the plaintiffs (who are the respondents in this appeal) seek payment for services rendered and enforcement of a construction lien securing the appellants’ indebtedness.
2The appellants’ former lawyer accepted service of the statement of claim on May 12, 2022. The appellants did not deliver a statement of defence within the time required by the Rules of Civil Procedure, RRO 1990, Reg. 194. The plaintiffs’ counsel warned the appellants’ counsel that if the appellants did not participate in the lawsuit by delivering their statement of defence when required, the plaintiffs would note them in default.
3The appellants did not deliver their statement of defence within the time set for them to do so. Therefore, the plaintiffs noted the appellants in default on July 22, 2022.
4Just over ten months later, on June 5, 2023, the appellants’ new counsel first identified himself to the plaintiffs’ counsel. The lawyers communicated again on July 31, 2023. On August 31, 2023, the appellants delivered a motion record seeking an order to set aside the noting in default.
5The motion was dealt with in writing by Desormeau J. on October 6, 2023. For reasons set out in a written endorsement of that date, Desormeau J. dismissed the appellants’ motion. By order dated January 22, 2024, the dismissal was formalized and the appellants were ordered to pay costs to the plaintiffs of $3,600 all-inclusive.
6The appellants appeal and ask this court to lift the noting in default so that they can defend the lawsuit.
[7]
Analysis
The evidence submitted by the appellants on the motion did not explain their default. They did not show that they had moved quickly when they learned that they had been noted in default. The judge’s holdings in that regard are rooted in the record that was before her.
8The appellants seek to add to their evidence in this court without bringing a motion to adduce fresh evidence under s. 134 (4)(b) of the Courts of Justice Act, RSO 1990, c C.43. Without leave, the proposed fresh evidence may not be received by this court. In any event, all of the “new” evidence on which the appellants purport to rely was available to them at the time of the reading of the motion below. The appellants would not likely obtain leave to adduce fresh evidence even had they sought to do so properly.
9I accept that noting in default in a contested action is exceptional and is routinely set aside on consent for good reason. But here, the appellants offered no explanation for their silence for more than a year after being served with the statement of claim. Even with new counsel, they waited another three months before bringing their motion to set aside the noting in default. On the evidence before her, the judge was correct in finding that the appellants, “failed to present any evidence in support of meeting the requirements of the lifting of the default.” Moreover, she made no error of law or principle in the exercise of her undoubted discretion to refuse to lift the noting in default.
[10]
Disposition
The appeal is therefore dismissed. The appellants are ordered to pay costs to the respondents in the amount of $4,000 all-inclusive.
[11]
Jurisdictional Note
I note that neither party raised the issue of whether an order dismissing a motion to lift a noting in default is appealable as of right to this court under ss. 19 (1)(a) and (1.2) of the CJA. The order below did not require payment of not more than $50,000. Neither did it dismiss a claim for not more than $50,000. However, given the outcome, it was not necessary for me to decide the issue. Therefore, this decision should not be taken to hold or find that this court had jurisdiction to hear this appeal.
_______________________________
Myers J.
I agree _______________________________
Edwards R.S.J.
I agree _______________________________
MacNeil J.
Date: September 12, 2024
Date released: September 12, 2024