Court File and Parties
COURT FILE NO.: CV-23-00707285-0000 DATE: 20240610 ONTARIO SUPERIOR COURT OF JUSTICE
RE: Juan Troncoso Cheima et al., Plaintiffs -and- His Majesty the King in Right of Canada, the Attorney General of Canada, and the Right Honourable Justin Trudeau, Defendants
BEFORE: Robert Centa J.
COUNSEL: No one appearing for the plaintiffs Cindy Ko and Nick Continelli, for the defendants
HEARD: June 10, 2024
Endorsement
[1] This action first came before me in Civil Practice Court on May 29, 2024. The defendants wished to schedule a motion to set aside a noting in default. After hearing briefly about the nature of the case, I adjourned the matter to a case conference before me to be held on June 10, 2024. I asked both parties to provide me with case conference memos addressing the issue of whether the noting in default should be set aside. I have reviewed those submissions.
[2] The plaintiff Juan Troncoso Cheima did not attend at the case conference. Pursuant to rule 3.03(2) of the Rules of Civil Procedure, I waited 15 minutes for Mr. Cheima to arrive, but he never joined by Zoom. I then proceeded in his absence.
[3] First, I set aside the noting in default. The defendants provided a helpful chronology of events in their case conference memo:
- On October 6, 2023, a Statement of Claim (the “Claim”) was issued in this matter seeking in excess of $190 million dollars in damages. On October 10, 2023, the Claim was served upon the Attorney General of Canada.
- On October 27, 2023, counsel for the Defendants wrote to the Plaintiffs acknowledging receipt of the Claim on behalf of all Defendants and indicating they had carriage of the matter. Counsel for the Defendants requested the Plaintiffs not note the Defendants in default without notice to counsel.
- On October 30, 2023, the Defendants filed a Notice of Intent to Defend.
- On December 8, 2023, the Plaintiffs filed a Requisition to Note in Default with respect to the Attorney General of Canada (the “Noting of Default”).
- On December 11, 2023, counsel for the Defendants wrote to the Plaintiffs and made a Demand for Particulars.
- On January 15, 2024, counsel for the Defendants received materials from the Plaintiffs, which included the Noting of Default found within an unfiled Motion Record for Default Judgement. On January 26, 2024, counsel for the Defendants wrote to the Plaintiffs advising that the Defendants intend to bring a motion to set aside the Noting of Default and to confirm the Plaintiffs’ intent to seek default judgement.
[4] Based on these events, I set aside the noting in default pursuant to rule 19.03. The plaintiffs knew that the defendants intended to defend this action. The defendants specifically asked the plaintiffs not to be noted in default without notice. Nevertheless, the plaintiffs noted the defendants in default and did so without notice. The defendants then promptly moved to set aside the noting in default. All of the relevant factors strongly support setting aside the noting in default: Flintoff v. von Anhalt, 2010 ONCA 786, at para. 7; Garten v. Kruk at para 7; 316845 Ontario Limited v. Es-Lea Holdings Limited at paras. 15-16.
[5] In addition, I have now reviewed the statement of claim. It appears to me that it may be frivolous and vexatious. The plaintiffs should have the opportunity to make submissions to me as to why the claim should not be dismissed at this time. I make the following order:
a. pursuant to subrule 2.1.01(3)(1), the registrar is directed to give notice to the plaintiffs in Form 2.1A that the court is considering making an order under rule 2.1.01 dismissing the action; b. pending the outcome of the written hearing under rule 2.1 or further order of the court, the plaintiffs’ action is stayed pursuant to s.106 of the Courts of Justice Act, R.S.O. 1990, c.C.43; Gao v. Ontario WSIB et al., 2014 ONSC 6100 at para. 11. c. The registrar shall accept no further filings in this action excepting only the plaintiffs’ written submissions if delivered in accordance with rule 2.1.01(3); d. In addition to the service by mail required by 2.1.01(4) rule, the registrar is to serve a copy of this endorsement and a Form 2.1A notice on the plaintiff and counsel for the defendants by email.
[6] No costs of this case conference.
Robert Centa J. Date: June 10, 2024