DATE: 20060321
DOCKET: C43024
COURT OF APPEAL FOR ONTARIO
LABROSSE, BLAIR and ROULEAU JJ.A.
B E T W E E N :
CAROLE DAVIS
Pamela Barron and Lise Jolicoeur for the appellant
Applicant (Respondent in appeal)
- and -
JASON MORRIS
Robie Loomer for the respondent
Respondent (Appellant in appeal)
Heard: February 24, 2006
On appeal from the orders of Justice Maria Linhares de Sousa of the Superior Court of Justice dated November 26, 2004 and January 6, 2005.
ROULEAU J.A.:
[1] This is an appeal from the motion judge’s dismissal of the appellant’s motion to set aside a final order of Métivier J. That final order was granted in the absence of the appellant and immediately after having allowed the appellant’s solicitor’s application to be removed as the solicitor of record.
[2] For the reasons that follow, I would grant the appellant’s appeal and set aside the orders of the motion judge and of Métivier J.
Background
[3] On September 21, 2001, the respondent, Carole Davis, commenced proceedings against the appellant, Jason Morris, seeking custody of their child, then aged one, as well as child support and costs. After a case conference held in January 2002, the case lay dormant for over two years until a Notice of Approaching Dismissal was issued in April 2004. As a result of receiving that notice, the parties scheduled a case conference for May 11, 2004.
[4] At that case conference, a consent order was made by Maranger J. requiring that the appellant:
(a) file his 2003 income tax return within thirty days and provide a copy of all available income tax returns to [the respondent] within sixty days; and
(b) provide [the respondent] with a printout from his restaurant and bar employers for the years 2000, 2001, 2002, and 2003 to present, showing hours worked, wages paid and the amount of product sold, within thirty days.
[5] The appellant had been exercising de facto access to the child two nights a week. This arrangement appeared to be generally acceptable to the parties. Although the appellant had been paying some support, and been making some contribution towards extraordinary expenses, the respondent alleged that the appellant was understating his income. The appellant was employed as a waiter and had provided what was said to be a somewhat low estimate of the amount of tips he received.
[6] Pursuant to Maranger J.’s order, the appellant filed and provided copies of his income tax statements, although he did not do so within the deadline that had been set. Furthermore, the appellant did not obtain all of the required printouts from the various restaurants at which he had worked from 2000 to 2004.
[7] The respondent brought a motion returnable August 27, 2004, seeking a finding that the appellant was in contempt, striking his pleadings and granting the respondent judgment on all substantive issues in the proceeding. There were two affidavits filed in support of the motion. Both were dated July 15. It is clear from a review of these affidavits that the date on one of them is in error and that it was likely sworn in mid to late August.
[8] The appellant’s solicitor sought an order removing herself as solicitor of record by notice of motion dated August 20, 2004, and returnable on August 27 – the same day as the above motion. This material was apparently served by mail having been sent on or about August 23.
[9] The appellant was not present on the return date of the two motions. He had filed no materials. Métivier J. granted the appellant’s solicitor’s motion to be removed from the record. She did so despite the short service of the notice of motion. No reasons were provided.
[10] After granting that order, Métivier J. then heard the respondent’s motion. As there had not been personal service of that motion, a contempt order could not be made. Respondent’s counsel nonetheless made reference in his submissions to the appellant being in contempt and, specifically, that the appellant’s conduct warranted an award of costs on a full recovery basis. Métivier J. struck the appellant’s pleading and granted most of the relief sought by the respondent. Based on the limited financial information which had been filed in the respondent’s second affidavit, she imputed a level of income to the appellant and, based on that level of income, ordered that he pay child support and contribute to the child’s extraordinary expenses, retroactive to September 2001. The respondent was awarded sole custody of the child and, despite the fact that the materials filed had not asked for a change to the two evenings a week access, access was changed to every second weekend. Finally, Métivier J. ordered costs in the amount of $8,000.
[11] The appellant brought a motion returnable on November 26, 2004 to set aside Métivier J.’s order. It is the dismissal of this motion that is the subject of the present appeal. In support of that motion, the appellant filed affidavit material in which he advised that during the summer of 2004 he had moved and that he had not received notice of the respondent’s motion or of his previous solicitor’s motion to be removed from the record. He also set out efforts he had made to comply with Maranger J.’s order and provided some explanation as to why these efforts had not been undertaken within the timeline imposed by the order. The appellant disputed the amount of income imputed to him and maintained that the child support order and terms of access were unfair to him, having imposed significant changes to the status quo.
[12] In her affidavit, the respondent maintained that the appellant had been aware of her August 27 motion. She also took issue with a number of the assertions made by the appellant in his affidavits. There was no suggestion, however, that the appellant had been aware of his former solicitor’s motion to be removed from the record or that he would have known that the respondent’s August 27 motion would essentially proceed on a default basis.
[13] The motion judge ruled that several paragraphs of the appellant’s affidavit should be struck because the appellant would not waive solicitor client privilege in respect of materials in his former solicitor’s file. The struck paragraphs made reference to his previous solicitor’s motion and supporting material, denied having received those materials and challenged some of the allegations contained in them. The motion judge then dismissed the motion. In reaching her decision, she applied the test in Lenski v. Roncaioli (1992), 11 C.P.C. (3d) 99 (Ont. Gen. Div.) for setting aside default judgment. She determined that the appellant had fallen far short of meeting that test.
Analysis
[14] Lenski v. Roncaioli held that, on a motion to set aside a default judgment, the test to be met by the moving party is as follows:
(1) The motion to set aside a default judgment should be made as soon as possible after the applicant becomes aware of the judgment;
(2) More importantly, the moving party’s affidavit must set out circumstances under which the default arose that give a plausible explanation for the default;
(3) The moving party must set forth facts to support the conclusion that there is at least an arguable case to present on its merits.
[15] While I consider the Lenski v. Roncaioli test to be a useful guide, it was designed for cases of default judgment in circumstances that are substantially different from the case at bar. In the present case, the genesis of the order was a failure to comply with a previous order. The appellant had been actively defending the action. The default element came about because of the appellant’s failure to appear on the motion and the fact that part of the relief granted by Métivier J. was the striking of the appellant’s pleadings. It is therefore substantially different from the default judgment situation as addressed in Lenski v. Roncaioli.
[16] Although there is some dispute as to whether the appellant was aware of the respondent’s August 27 motion, and of the date on which it was to be heard, the respondent conceded in the course of submissions that the appellant was unaware of his former solicitor’s motion to be removed from the record. She also agreed that the respondent’s motion before Métivier J. was heard in the appellant’s absence and without his being represented. It is not clear to me that the motion judge realized this as she stated in her reasons:
His absence before Métivier J. in view of his being represented by counsel have not been fully explained to the Court.
[17] It is also apparent that the appellant was not aware of the second affidavit filed by the respondent in support of the motion before Métivier J. It is that affidavit that provided the basis for the level of support payments. Finally, given the position set out in the respondent’s materials, the appellant could not have known that the respondent would seek to change the status quo with respect to access at the hearing.
[18] Once the appellant became aware of the August 27 order of Métivier J., he moved promptly to set it aside. Using Lenski v. Roncaioli as a guide, the appellant acted promptly and provided a plausible explanation for the default. On that test, therefore, the only issue would be whether the appellant has “at least an arguable case to present on its merits”. Given the nature of these proceedings, however, I consider the procedural fairness concerns to be central. These also need to be examined.
[19] In considering whether there was an arguable case on the merits, the motion judge and counsel for the respondent on this appeal appear to have focused on whether the appellant could justify his failure to comply with Maranger J.’s production order. While this is certainly a consideration, it is also important to consider the merits of the claim itself.
[20] In my view, the materials filed by the appellant on the motion do raise an arguable case with respect to several aspects of the claim. While the appellant’s explanation of why he did not comply with Maranger J.’s order in a timely way is somewhat weak, he nonetheless ought to have been given an opportunity to file materials and be heard on the motion. If, in the face of all of the material filed, the court were to determine that he should be sanctioned for not having complied in a timely way with Maranger J.’s order, he ought to have had the opportunity to make submissions on the appropriate sanction in the circumstances.
[21] Because the present case is not a default judgment in the traditional sense, and is more in the nature of a sanction being imposed for not complying with an order, procedural fairness is also to be taken into account. As set out in rules 2(2) and 2(3) of the Family Law Rules, the primary objective of the rules is to enable the court to deal with cases justly. This includes ensuring that the procedure is fair to all parties.
[22] In the present case, the action was effectively disposed of on a motion that sought to find the appellant in contempt but had not been served personally. It proceeded in the absence of the appellant and, unknown to him, in the absence of his counsel. That the appellant was unaware of his former solicitor’s motion is understandable, because the motion was made on short notice and the appellant had recently moved. As no materials were filed on the motion on the appellant’s behalf, it is likely that the appellant’s former solicitor had effectively stopped working on the file sometime prior to being removed from the record. In all of the circumstances, this resulted in procedural unfairness to the appellant and tainted all that happened thereafter.
[23] In conclusion, therefore, I would allow the appeal and set aside the orders of the motion judge and of Métivier J.
[24] With respect to costs, the appellant asked that we set aside the motion judge’s and Métivier J.’s cost orders and award him costs both here and before the motion judge. In my view, the appellant should be responsible for paying the respondent’s costs thrown away for the motion before Métivier J. As a result, I would vary Métivier J.’s cost order to provide for costs payable by the appellant to the respondent in the amount of $750. In the circumstances, I would award no costs in respect of the motion that is the subject of the appeal and would award the appellant costs of the appeal fixed at $6,000.
“Paul S. Rouleau J.A.”
“I agree J.M. Labrosse J.A.”
“I agree R.A. Blair J.A.”