Ontario Superior Court of Justice

BETWEEN:

TANYA REBELLO Plaintiff – and – THE BANK OF NOVA SCOTIA Defendant

Counsel: Osborne G. Barnwell, for the Plaintiff Laura K. Fric, for the Defendant

Heard: August 7, 2018

M. D. FAIETA J.

Reasons for Decision

Introduction

[1] The plaintiff submits that the court should not have set aside the noting in default of the defendant without requiring the defendant to deliver a Statement of Claim prior to the hearing of the defendant’s Motion to Strike under r. 21 of the Rules of Civil Procedure, R.R.O. Reg. 194. The plaintiff did not appeal the impugned orders and the time to do so has long passed. The plaintiff now brings this motion under r. 37.14 of the Rules of Civil Procedure to vary or set aside the impugned orders. For reasons given below, the motion is dismissed. It is an improper use of r. 37.14 given that its pre-conditions are not met. In any event, I find that the court made no error in setting aside the noting in default on the terms it ordered. Further, I find that the court made no error in refusing to permit Gary Curtis, a friend of the plaintiff, to represent the plaintiff at the hearing of the motion.

Background

[2] On September 22, 2017, the plaintiff commenced this action against the defendant. The plaintiff alleges that she is a client of the defendant. She also alleges that the defendant has breached her privacy in the following ways:

• The defendant has told other persons that the plaintiff is having financial trouble;
• The defendant has failed to protect and keep private the plaintiff’s personal financial information;
• The defendant has placed the plaintiff’s personal information in a public court file in the Federal Court without her consent;
• The defendant has surveillance cameras located on the plaintiff’s property;
• Surveillance footage shows individuals removing a bear trap;
• The plaintiff has observed current and/or former employees of the defendant stalking, harassing and trespassing on the plaintiff’s property;
• The defendant directed the aforementioned employees to plant illegal materials and/or substances on her property with the intention of having the plaintiff arrested so that “BNS would argue that Gary Curtis was funding operations of the plaintiff so that this false information could be used against Mr. Curtis to devastate his ongoing civil proceeding against BNS to which Ms. Rebello is a witness for Mr. Curtis in his action against BNS”;
• The plaintiff no longer feels safe residing in her home; and
• The plaintiff claims damages in the amount of $250 million from the defendant.

[3] The defendant filed a Notice of Intent to Defend on or about October 6, 2017. The cover letter asked the plaintiff to advise the defendant if she intends to note the defendant in default. On October 13, 2017 the plaintiff picked up these documents from a courier.

[4] By email dated October 24, 2017, the defendant advised the plaintiff by email that the defendant intends to ask the court to dismiss the action as frivolous, vexatious and an abuse of process.

[5] The defendant was noted in default on October 30, 2017. On November 1, 2017 the defendant advised the plaintiff that it would move to set aside the noting in default. The plaintiff has refused to consent to an order setting aside the noting in default. She also sought to delay the hearing of the motion to set aside the noting in default until February 2018.

[6] On November 8, 2017, Justice Chiappetta refused to dismiss the claim pursuant to r. 2.1.01(6) as she found that it was not plain and obvious on the face of the Statement of Claim that the claim was frivolous, vexatious or an abuse of process. See Rebello v. Bank of Nova Scotia, 2017 ONSC 6586.

[7] On November 8, 2017, the defendant delivered to the plaintiff a motion to set aside the noting in default returnable November 29, 2017. On that same day, Gary Curtis, who is not licensed to practice law by the Law Society of Ontario but has been appearing as “agent” of the plaintiff, responded that the plaintiff was unavailable until the week of March 6, 2018. On the following day, Mr. Curtis advised that the plaintiff was now available at the end of February, 2018 but not during March 5-16, 2018.

[8] On November 14, 2017, Master Short set December 20, 2017 as the hearing date for the motion. On December 15, 2017 the plaintiff asked that Master Short recuse himself from hearing the motion.

[9] On December 20, 2017, Master Short set aside the noting in default and granted leave to serve and file a defence by January 26, 2018 unless the defendant brings a motion under r. 21 to strike the Statement of Claim by January 21, 2018. He also refused to permit Mr. Curtis to represent the plaintiff.

[10] On or about January 10, 2018 the defendant delivered a Notice of Motion, returnable on May 28, 2018, for an order striking out the Statement of Claim. On January 25, 2018, Master McAfee dismissed the plaintiff’s motion to compel the production of the audio recording of the motion held before Master Short.

[11] The plaintiff brought a motion for an order requiring Master Short to release the audio recording of the motion heard December 20, 2017. Justice Pollak dismissed the motion because the plaintiff did not appear. That same motion, dismissed by Master McAfee and Justice Pollak, was dismissed by Justice Perell who stated:

The repeated motions before Master McAfee, Justice Pollak and myself are in the circumstance an abuse of process. Accordingly, the motion for the recording is dismissed without prejudice to the decision of the Divisional Court.

[12] On or about February 20, 2018, the plaintiff threatened to note the defendant in default for a second time. In light of this threat, on February 21, 2018, the defendant brought an urgent motion for an order directing the Registrar to note the defendant in default until after the final disposition of the defendant’s r. 21 motion. Master Jolley rejected the plaintiff’s request for an adjournment as Mr. Curtis would not agree that the plaintiff would not note the defendant in default in the interim. Master Jolley dismissed the plaintiff’s argument that the defendant had to file a Statement of Defence prior to the hearing of the r. 21 motion. She found that it was highly improper for the plaintiff to attempt to note the defendant in default in face of the order of Master Short and the set motion date for the r. 21 motion. Master Jolley directed that the Registrar not note the defendant in default at least until after the final disposition by the court of the r. 21 motion. She also ordered that the defendant’s motion for case management be heard on April 18, 2018.

[13] On or about February 28, 2018, the defendant delivered a Notice of Motion, returnable on April 18, 2018, for an order directing that all steps in this proceeding be assigned for case management pursuant to r. 77 to advance this action and to avoid the further waste of the court’s resources given the multiplicity of motions.

[14] In Rebello v. Bank of Nova Scotia (4 April 2018), Toronto, DC-140-18 (Ont. Div. Ct.), Justice Conway dismissed two motions brought by the plaintiff, and endorsed the Record as follows:

Mr. Curtis purports to act for Ms. Rebello as her agent. He is not properly permitted to do so. Nonetheless I have given him an opportunity to make submissions. Ms. R seeks a stay of all of Master Jolley’s orders pending appeal. There is no basis whatsoever for a stay of Master Jolley’s orders pending the appeal. BNS has a motion requesting Case Management on April 8, 2018 scheduled by Master Jolley. That motion shall proceed. Her request for a stay is dismissed. No costs: Rebello v. Bank of Nova Scotia (4 April 2018), Toronto, DC-140-18 (Ont. Div Ct).

[15] In Rebello v. Bank of Nova Scotia (4 April 2018), Toronto, DC-164-18 (Ont. Div. Ct.), Justice Conway dismissed another motion brought by the plaintiff and endorsed the Record as follows:

Mr. Curtis purports to act for Ms. Rebello as her agent. He is not properly permitted to do so. Nonetheless I have given him an opportunity to make submissions. She seeks an extension of time to appeal Master Short’s order of December 20, 2017 setting aside the Notice of Default and scheduling BNS’ Rule 21 motion. These are interlocutory orders, not final ones. They are to be appealed to a Judge of the Superior Court of Justice not the Divisional Court (Courts of Justice Act, R.S.O. 1990, c. C.43, s. 17(a)). There is no purpose served by an extension in this court as Ms R’s appeal route lies in a different court. The motion for an extension is dismissed. Costs of this motion, fixed at $400, all in, ordered in the cause.

[16] On June 5, 2018 in Civil Practice Court (“CPC”), Justice Archibald ordered:

• Appeals of Master Short and Master Jolley orders to occur on August 7, 2018;
• Appellant to file Factum and appeal materials by July 13, 2018;
• Respondent to file Factum and responding materials by July 25, 2018;
• Rule 21 motion to proceed on August 29, 2018 and is peremptory on the plaintiff – 2 hours;
• Any further CPC dates if necessary with 48 hours’ notice to the defendant

[17] The plaintiff’s Amended Amended Notice of Motion seeks the following relief, including:

• An order to set aside or vary the endorsement order of Master D.E. Short of November 14, 2017.
• An order to set aside or vary the court order of Master D.E. Short of December 20, 2017 setting aside the noting in default of the Registrar on October 30, 2017, by ordering the defendant to serve and file the Statement of Defence in three days after the date of this motion.
• An order to set aside or vary the court order of Master D.E. Short of December 20, 2017 – which stated that the defendant shall have until January 12, 2018 to file a motion under r. 21 motion failing which the defendant shall serve by email any defence by January 26, 2018 – by ordering that the defendant
• An order to set aside or vary the court order of Master D.E. Short of December 20, 2017, which granted leave to serve a motion under r. 21 to strike the Statement of Claim and/or stay or dismiss the action by January 12, 2018.
• An order to set aside or vary the court order of Master D.E. Short of December 20, 2017 – which granted the defendant permission to serve the plaintiff by email as set out in the Statement of Claim;
• An order to set aside or vary the court order of Master D.E. Short of December 20, 2017, which indicated that the plaintiff pay costs of the motion in the cause of the main action and that the defendant pay costs in the cause of the main action.
• An order to set aside all of Master Jolley’s orders as (1) the Notice of Motion and motion record was not properly before the court on February 21, 2018; (2) the plaintiff was not properly served and was not given notice of the motion; and the plaintiff was not granted the opportunity to provide responding motion material.
• An order to set aside or vary the court order of Master Jolley of February 21, 2018, which stated that the Registrar is directed not to note the defendant in default until the final disposition of the defendant’s motion brought under r. 21, as long as the defendant serves and files a Statement of Defence within 3 days of this motion.
• An order to grant permission to obtain the audio recordings of the motion court hearings on November 14, 2017 and December 20, 2017 for the purpose of creating a transcript of the motion hearings to be used for this motion to set aside all Master Short’s orders.

[18] For reasons described below, I have dismissed the plaintiff’s motion to vary the orders of Master Short and Master Jolley. The plaintiff shall pay costs of motion in the amount of $3,000 to the defendant within 30 days, failing which the plaintiff shall not take any further step in this proceeding in the Superior Court of Justice.

Issues

[19] The plaintiff’s motion raises the following issues:

(1) Is the plaintiff’s motion properly brought under r. 37.14 of the Rules of Civil Procedure? (2) In any event, should the plaintiff’s request to set aside or vary the orders be granted on the following grounds: (a) Master Short erred in adjourning the motion to set aside the noting in default from November 14, 2017 to December 20, 2017? (b) Master Short erred in refusing to permit Mr. Curtis to represent the plaintiff on the motion to set aside the noting in default heard on December 20, 2017? (c) Master Short erred in failing to recuse himself on December 20, 2017? (d) Master Short erred in setting aside the noting in default? (e) Master Jolley erred in directing that the Registrar not note the defendant in default until after the Motion to Strike is heard?

Issue #1: Is the Plaintiff’s Motion Properly Brought Under Rule 37.14?

[20] The plaintiff relies upon r. 37.14 of the Rules of Civil Procedure in bringing this motion to set aside or vary the orders made by Master Short and Master Jolley. Under Rule 37.14(1) a party may bring a motion to set aside or vary an order made by a master where he or she fails to appear on the motion through accident, mistake or insufficient notice or where he or she is affected by an order made by a master on a motion without notice. Under r. 37.14(5), such a motion must be made to the master who made it or to any other master or a judge.

[21] The motion to set aside or vary Master Short’s order granted on December 20, 2017 is not properly brought under r. 37.14 given that: (1) it was made on notice to the plaintiff; and (2) Mr. Curtis attended the motion on behalf of the plaintiff.

[22] I recognize that the order granted by Master Jolley on February 21, 2018 was brought on short notice; however, in my view that does not satisfy the requirements of r. 37.14(1). Accordingly, the plaintiff’s motion to set aside or vary Master Jolley’s order is also dismissed.

[23] Justice Conway’s decision dated April 4, 2018 found that Master Short’s order of December 20, 2017 was an interlocutory order. Section 17 (a) of the Courts of Justice Act, R.S.O. 1990, c. C.43 provides that an appeal lies to the Superior Court of Justice from an interlocutory order of a master. Rule 62.01(2) provides that an appeal shall be commenced within seven days after the making of the order appealed from. There is no evidence that the plaintiff appealed Master Short’s order within seven days.

[24] Master Jolley’s decision was also an interlocutory order. Again, the plaintiff did not appeal that order.

[25] The time for appealing these orders has expired. The plaintiff cannot seek to circumvent the effect of rr. 62.01 and 62.02 by relying upon r. 37.14. The motion to vary or set aside the orders is dismissed.

Issue #2: In Any Event, Should the Plaintiff’s Request to Set Aside or Vary the Orders Be Granted on its Merits?

[26] In the event that I am wrong in finding that there is no basis to review the impugned decisions under r. 37.14 of the Rules of Civil Procedure, I will review the grounds advanced by the plaintiff for challenging these decisions in order to address the substance of the plaintiffs’ position.

[27] A master’s order can be overturned only if the master made an error of law, exercised discretion on the wrong principles or misapprehended the evidence such that there was a palpable and overriding error: Zeitoun v. The Economical Insurance Group, (2008), 91 O.R. (3d) 131 (Div. Ct.), aff’d (2009), 2009 ONCA 415, 96 O.R. (3d) 639.

[28] The plaintiff submits that:

• Master Short erred in adjourning the motion to set aside the noting in default from November 14, 2017 to December 20, 2017;
• Master Short erred in refusing to permit Mr. Curtis to represent the plaintiff at the hearing of the motion on December 20, 2017;
• Master Short erred in failing to notify the plaintiff at the hearing of the November 14, 2017 motion that Mr. Curtis would not be permitted to represent her at the hearing of the motion on December 20, 2017;
• Master Short erred in failing to recuse himself at the motion heard on December 20, 2017;
• Master Short erred in setting aside the noting in default;
• Master Jolley erred in directing that the Registrar not note the defendant in default until after the Motion to Strike is heard.

Did Master Short Err in Adjourning the Motion to Set Aside the Noting in Default from November 14, 2017 to December 20, 2017 Rather Than to a Date in 2018?

[29] On November 8, 2017, the defendant served a motion, returnable on November 29, 2017, to set aside the noting in default. The plaintiff sought an adjournment of the motion date until 2018.

[30] On November 14, 2017, Master Short adjourned the defendant’s motion to December 20, 2017. His Endorsement states:

Justice Archibald referred Motion to Master as within our jurisdiction. Motion scheduled for Nov. 29 is hereby adjourned.

Mr. Curtis requested an adjournment into 2018. I was not prepared to do that. Offered 5 dates and he elected (without agreeing to date) Dec. 20/17 before me for 2 hours. All materials to be filed on a timely basis in accordance with the rules.

It is my understanding that Ms. Rebello is seeking counsel at present.

[31] In deciding the length of the adjournment the court is to balance “… the private interest of the parties and the public interest in the fair and efficient adjudication of disputes on their merits …”: Turbo Logistics Canada Inc. v. HSBC Bank Canada, 2016 ONCA 222, 347 O.A.C. 369 at para. 27.

[32] The plaintiff did not appear at the return of this motion. In fact, she has not appeared at any of these motions or other proceedings before this court or the Divisional Court. Further, the plaintiff has not retained counsel to represent in this proceeding until Mr. Barnswell appeared on this motion today.

[33] Master Short balanced the interests of the parties as well as the public interest in the fair and efficient adjudication of disputes in setting a date for the motion that was about five weeks away. I find that he committed no reviewable error in adjourning the motion to December 20, 2017.

Did Master Short Err in Refusing to Permit Mr. Curtis to Represent the Plaintiff at the Motion Heard on December 20, 2017?

[34] Master Short’s Endorsement states, in part, that:

Rule 15.01(3) requires a party to appear in person or by a lawyer. Mr. Curtis has a power of attorney but he does [not] have standing. He asserts I am denying her her Charter Rights. Nevertheless I propose to hear submissions of the moving party as scheduled.

[35] The Rules of Civil Procedure govern all civil proceedings in the Court of Appeal and the Superior Court of Justice. Under r. 15.01 a party to a civil proceeding may act in person or be represented by a lawyer subject to certain exceptions where a party may only be represented by a lawyer.

[36] Whether a non-lawyer can represent a party in a proceeding governed by the Rules of Civil Procedure has been addressed by Justice Stinson on two occasions. The following principles govern:

• A court has no discretion to permit a non-lawyer to represent another individual in proceedings before the Superior Court of Justice: Direk v. Ontario (Attorney General), 2010 ONSC 3428, 97 C.P.C. (6th) 337 at para. 6.
• A power of attorney granted by a party to a civil proceeding does not cloak someone holding a power of attorney with authority to appear in court on behalf of that party. To rule otherwise "... would be to grant a license to practise law to anyone who is able to persuade someone else to execute a power of attorney authorizing the former to step into the shoes of the latter in order to conduct litigation.”: Gagnon v. Pritchard (2002), 58 O.R. (3d) 557, at paras. 29-31.

[37] The plaintiff submits that Mr. Curtis is permitted to represent her because he is a “non-paid friend.” Her Factum states:

Ms. Rebello has been self-litigating with the assistance of a non-paid friend Mr. Curtis, to assist her with the process against a larger global Chartered bank in Bank of Nova Scotia.

[38] In making this submission the plaintiff relies upon a Law Society of Ontario webpage entitled “Paralegal Regulation Resources” that states:

• “Anyone in Ontario providing legal services requires a licence, unless the group or individual is not captured by the Law Society Act or is exempt by a Law Society by-law”;
• “Groups/Individuals exempt by By-law 4 (who do not require a licence)” includes … “Persons who are not in the business of providing legal services and occasionally provide assistance to a friend or relative for no fee”

[39] However, the plaintiff fails to note that such exemption is only in relation to the activities performed by a licenced paralegal. The following provisions of the Law Society Act, R.S.O. 1990, c. L.8, as amended, and By-law 4 were not referenced by the plaintiff in her written submissions:

• Section 26.1(1) of the Law Society Act provides that, subject to s. 26.1(5), no person, other than a licensee whose licence is not suspended, shall practise law in Ontario or provide legal services in Ontario;
• Section 26.1(5) of the Act provides that a person who is not a licensee may practise law or provide legal services in Ontario if and to the extent permitted by the by-laws;
• Section 6(2) of By-law 4 made under the Act outlines the various types of proceedings that the holder of a Class P1 licence is authorized to represent a party. Such authorization does not extend to a civil proceeding before the Superior Court of Justice; and
• Section 30.4 of By-law 4 made under the Act provides that:

The following may, without a licence provide legal services in Ontario that a licencee who holds a Class P1 licence is authorized to provide:

4. An individual, i. whose profession or occupation is not and does not include the provision of legal services or the practice of law, ii. who provides the legal services only for and on behalf of a friend or a neighbour, iii. who provides the legal services in respect of not more than three matters per year, and iv. who does not expect and does not receive any compensation, including a fee, gain or reward, direct or indirect, for the provision of the legal services.

[40] Mr. Curtis is not a lawyer. As reflected in his written submissions and the positions that he has taken in this proceeding, Mr. Curtis has no legal expertise. The plaintiff’s reliance on the free assistance provided by Mr. Curtis is misguided. Amongst other things, the plaintiff has: (1) failed to file appeals of the orders challenged on this motion in a timely manner and brings this motion instead; (2) acted in a manner that, in the words of Justice Perell, amounts to an abuse of process; and (3) brought two unnecessary motions in the Divisional Court that were dismissed by Justice Conway.

[41] The plaintiff relies on Children’s Aid Society of the Niagara Region v. P.(D.) (2002), 62 O.R. (3d) 668 (S.C.) for the principle that a non-lawyer friend may represent a party in a family law proceeding. That case is distinguishable. First, it dealt with the application of r. 4(1) (c) of the Family Law Rules, O. Reg. 114/99, which expressly permits a party, with prior judicial approval, to be represented by a non-lawyer in a family law proceeding. No similar provision exists under r. 15.01 of the Rules of Civil Procedure. Second, s. 50 of the Law Society Act was repealed in 2006 and it has been effectively replaced and restricted by s. 26.1 of the Law Society Act. By-law 4 comprehensively governs the persons who may practise law and provide legal services. A non-lawyer friend of a party to a proceeding cannot provide legal services that only a licensee who holds a lawyer (Class L1 licence) is authorized to provide and can only provide those legal services that a paralegal (Class P1 licence) is authorized to provide under By-law 4.

[42] I find that Master Short did not err in refusing to permit Mr. Curtis to represent the plaintiff at the hearing of the motion. I also order that Gary Curtis shall not represent the plaintiff in these proceedings, including any appearances before the Superior Court of Justice.

Did Master Short Err in Failing to Recuse Himself on December 20, 2017?

[43] The plaintiff also alleges that Master Short erred in refusing to recuse himself. She contends that Master Short did not permit Mr. Curtis to speak to her motion on December 20, 2017. She also contends that Master Short was aware of the complaints that she sent to Chief Justice H. Smith, Associate Chief Justice F. Marrocco and Regional Senior Justice G. Morawetz.

[44] In Chainauskas Estate v. Reed (2009), 2009 ONCA 572, 251 O.A.C. 209 at paras. 10-12, the Ontario Court of Appeal stated:

10 In R. v. S. (R.D.), [1997] 3 S.C.R. 484, at para. 113, Cory J. notes, for the majority in the result, that an allegation of a reasonable apprehension of bias calls into question "the personal integrity of the judge". Thus, the threshold for an allegation of bias on the part of a judge is high. An absence of bias is described by Cory J., at para. 104, as being "a state of mind in which the adjudicator is disinterested in the outcome, and is open to persuasion by the evidence and submissions." Bias, in contrast, "denotes a state of mind that is in some way predisposed to a particular result, or that is closed with regard to particular issues": para. 105.

11 At para. 111, Cory J. adopts the test applied by de Grandpré J. in his dissenting reasons in Committee for Justice & Liberty v. National Energy Board, [1978] 1 S.C.R. 369 (S.C.C.), at p. 394:

[T]he apprehension of bias must be a reasonable one, held by reasonable and right-minded persons, applying themselves to the question and obtaining thereon the required information....[The] test is "what would an informed person, viewing the matter realistically and prlly — and having thought the matter through — conclude...."

12 And finally, at para. 112, Cory J. holds that the grounds to demonstrate an apprehension of bias must be substantial. Therefore, it is clear that there is a high threshold to be met on an allegation of judicial bias and that there is a presumption of integrity accorded to judges.

[45] The plaintiff has not provided sufficient grounds to establish that Master Short committed a reviewable error in failing to recuse himself. He was correct in refusing to permit Mr. Curtis to represent the plaintiff at the hearing of the motion. Further, I am not satisfied that a reasonable and right-minded person would have concluded that Master Short was biased merely because he was aware that the plaintiff had filed a complaint. Much more is required to meet the high threshold of establishing judicial bias.

Did Master Short Err in Setting Aside the Noting in Default?

[46] Master Short set aside the noting in default on the following terms:

Rule 19.03 applies as well as Rule 1.04. The Court of Appeal in Intact Insurance Company v. Kisel, 2015 ONCA 205 as well as Justice Mew in Schmidt have made clear that in situations like this a court should set aside noting of default.

Here Rule 2.02 would impact bringing a motion to strike, if the Bank filed a defence.

The Defendant made it clear that it was disputing claims of the plaintiff from the very beginning. …

To keep matter(s) moving, Defendant to have to January 12, 2018 to file a motion under Rule 21. If not launched by that date, Defendant shall serve by email any defence by January 26, 2018. In the interim, I have no doubt that noting of default should be set aside AND I SO ORDER. …

[47] Rule 19.03(1) permits a noting in default to be set aside by the court on such terms as are just.

[48] This type of motion requires a consideration of the behaviour of the plaintiff and the defendant, the length of the defendant’s delay, the reasons for the delay and the complexity and value of the claim: Intact Insurance Company v. Kisel, 2015 ONCA 205, 125 O.R. (3d) 365.

[49] The plaintiff seeks $250 million for breach of privacy, defamation and other causes of action. The defendant did not file a Statement of Defence prior to the noting in default because it was awaiting the disposition of a request to dismiss this action under r. 2.1, failing which it would bring a r. 21 motion to strike. The defendant filed a Notice of Intent to Defend. The plaintiff was aware that the defendant intended to defend this action. The plaintiff did not advise the defendant that she intended to note the defendant in default. Despite the fact that the plaintiff signed for the couriered package that contained a letter as well as the Notice of Intent to Defend from the defendant, wherein the defendant asked to be notified in advance of the plaintiff moving to note the defendant in default, the plaintiff states that she did not receive the letter.

[50] I agree with the Master Short’s view that “Rule 2.02 would impact bringing a motion to strike, if the Bank filed a defence” in that leave would be required to bring a motion under r. 21 after the defendant had filed a Statement of Defence. As Master Dash noted in Jane Doe v. Escobar at para. 4:

… filing a statement of defence could result in prejudice to the defendant for two reasons. Firstly, if the defendant delivered a defence prior to the plaintiff providing particulars of the impugned pleading, the defendant could be deemed not to require particulars in order to plead. Secondly, and of greater importance, the defendant would be caught by the provisions of r. 2.02(b) which reads as follows:

2.02 A motion to attack a proceeding or a step, document or order in a proceeding for irregularity shall not be made, except with leave of the court,

(b) if the moving party has taken any further step in the proceeding after obtaining knowledge of the irregularity.

Delivery of a statement of defence could constitute a fresh step, thereby prohibiting the defendant's continued attack on the impugned pleading by way of appeal, unless leave of the court were first obtained.

[51] When all of the above circumstances are considered, particularly in light of r. 1.04 which promotes the determination of a civil proceeding on its merits, I find that Master Short did not commit a reviewable error in setting aside the noting in default on the terms that he imposed.

Did Master Jolley Err in Directing that the Registrar Not Note the Defendant in Default Until After the Motion to Strike is Heard?

[52] Master Jolley’s Endorsement dated February 21, 2018 states:

The defendant has a Rule 21 motion scheduled to be heard on 28 May 2018. Despite that, the plaintiff, through her “agent” Mr. Curtis, has advised that she will note the defendant in default today if it does not file a statement of defence.

She has already noted the defendant in default once and that noting in default was set aside by order of Master Short made 20 December 2017.

In his order of 20 December 2017, Master Short gave the defendant two choices: either bring a Rule 21 motion, in which case the motion was to be filed by 12 January 2018 or, if it chose not to bring the motion, then serve its defence by 26 January 2018. Master Short noted that the defendant’s ability to bring the Rule 21 motion may be impacted under Rule 2.02 if it files its defence. As such, in compliance with Master Short’s order, the defendant has chosen to bring the Rule 21 motion and not to file a defence at this stage. Those motion materials have been served and a date of May 28 fixed by order of Justice Firestone.

The plaintiff is of the view that the defendant is still required to file its statement of defence, even though it has chosen the Rule 21 option. This is incorrect.

The plaintiff also sought an adjournment of this motion on the basis that she was short served. However, Mr. Curtis would not agree that the plaintiff would not note the defendant in default in the interim period before this motion could be heard. As a result, the request for an adjournment is denied. It would be highly improper for the plaintiff to attempt to note the defendant in default in face of the order of Master Short and the set motion date for the Rule 21 motion.

I hereby direct that the Registrar shall not note the defendant in default at least until after the final disposition by the court of its Rule 21 motion currently set to be argued on 28 May 2018.

The defendant has requested direction on the scheduling of a motion for case management. The date of 18 April 2018 has been set for that motion and one hour booked.…

[53] The plaintiff alleges that the court erred in refusing to grant an adjournment given that she was short served. However, it was the plaintiff’s own actions that necessitated the short service. Her threat to note the defendant in default despite Master Short’s order demonstrates complete disregard of the court’s order. The plaintiff’s further unreasonable refusal to not to note the defendant in default pending the hearing of the r. 21 motion justified the dismissal of the requested adjournment. Finally, Master Jolley made no error in scheduling a motion by the defendant for case management under r. 77 given that a Notice of Intent to Defend had been filed.

Conclusions

[54] For the reasons given, the plaintiff’s motion is dismissed. The defendant seeks nominal costs of this motion in the amount of $1,000.00. The plaintiff leaves the question of costs for the court to determine. It is not in the interests of justice to clog our courts with motions that clearly have no merit, nor to have a party incur costs for which it will not be fully indemnified when responding to such motions. Had the defendant requested, I would have granted more than nominal costs. The plaintiff shall pay costs of $1,000.00 to the defendant within thirty days failing which the plaintiff shall not take any further step in this proceeding before the Superior Court of Justice without leave of this court. Finally, I thank Mr. Barnwell, who was very recently retained solely for the purpose of this motion after the plaintiff’s Factums had been delivered, for his direct submissions.

Mr. Justice M. D. Faieta

Released: August 17, 2018