Court File and Parties

COURT FILE NO.: CV-21-00658312-0000 DATE: 2023-03-17

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: AARON DIMITRIOUS LAKE, A MINOR, BY HIS LITIGATION GUARDIAN MEHROZ MAHJABIN, Plaintiff AND: TORONTO DISTRICT SCHOOL BOARD, Defendants

BEFORE: Justice Papageorgiou in writing

COUNSEL: Marshall Reinhart for the Plaintiff (marshall@rvlaw.ca) Paul Coven (did not appear) (Paul.koven@tdsb.on.ca)

HEARD: March 17, 2023

Endorsement

The Motion

[1] The plaintiff brings a motion without notice to note the defendant in default.

The Action

[2] The action involves allegations that the defendant the Toronto District School Board (the “TDSB”) breached various duties to the minor plaintiff arising out of virtual learning during the COVID-19 pandemic and the alleged failure of the TDSB to transfer the minor plaintiff to another school. The plaintiff claims damages in the amount of $150,000.

[3] This matter was commenced on March 9, 2021. At that time, the plaintiff was unable to personally serve the defendant because the TDSB was closed due to the COVID-19 pandemic. Although the security guard at TDSB did not accept in person service, it instructed the plaintiff to serve the TDSB’s lawyer, Paul Koven, by email. On March 9, 2021, Mr. Koven advised the plaintiff that he would accept service by email and the Statement of Claim was subsequently served.

[4] Although no Statement of Defence has ever been filed, Mr. Koven attended multiple case conferences in connection with the litigation.

The Fresh as Amended Statement of Claim

[5] The plaintiff has now amended its Statement of Claim following retaining new counsel.

[6] The Fresh as Amended Statement of Claim was emailed to Mr. Koven on December 30, 2022. No Statement of Defence has been filed within the required timelines. The plaintiff attempted to have the TDSB noted in the default but the Registrar rejected the request on the basis that the Fresh as Amended Statement of Claim had to be served in person.

[7] In that regard, r. 26.04(3)(a) of the Rules of Civil Procedure provides that an amended pleading must be served personally where the defendant has not responded to the original pleading. The plaintiff argues that Mr. Koven’s attendance at case conferences constitutes a “response” within the meaning of the rules and therefore, the Statement of Claim did not have to be served personally.

[8] The word “respond” is not defined in the rules, but even if the plaintiff is correct that participation in case conferences constitutes a “response” within the meaning of the rules, the plaintiff cannot succeed on this motion for the following reasons.

[9] Rule 37.07 of the Rules of Civil Procedure states that a notice of motion “shall be served on any party or other person who will be affected by the order sought unless the rules provide otherwise.”

[10] Motions can be made without notice pursuant to r. 37.07(2) of the Rules of Civil Procedure which states “where the nature of the motion or the circumstances render service of the notice of motion impracticable or unnecessary, the court may make an order without notice.”

[11] There is nothing about this motion or its circumstances which render service impracticable or unnecessary. Indeed, given that Mr. Koven has agreed to accept service in the past and has attended case conferences on behalf of the TDSB, it would be a simple matter for the plaintiff to serve the TDSB, through Mr. Koven, with this motion by email.

[12] The relief requested here, if granted, will likely only result in further proceedings. Even motions for default judgment which are technically not required to be served on a defendant noted in default, are routinely ordered to be served on the basis that this is “by far the better practice”: Casa Manila Inc. v Elio Stefano Iannuccilli et al, 2018 ONSC 7083 at para 16.

[13] As noted in Casa Manila, the objective is always to “secure the just, most expeditious and least expensive determination of every civil proceeding on its merits”.

[14] At a case conference in this matter held on June 1, 2022, Justice Koehen stated “This case calls out for a practical solution, not protracted motions, appeals and court hearings.”

[15] While the defendant is required to respond to this proceeding, the process employed by the plaintiff with respect to the Fresh as Amended Statement of Claim will only result in a motion to set aside the noting in default on the basis that the defendant did not receive notice of this motion as required by the rules.

[16] This makes no sense and is contrary to the objectives of the rules.

[17] The motion is dismissed and this endorsement shall be sent to Mr. Koven.

Justice Papageorgiou Date: March 17, 2023