Court of Appeal for Ontario

CITATION: Ur-Rahman v. Mahatoo, 2016 ONCA 555

DATE: 20160708

DOCKET: C61704

MacPherson, Cronk and Benotto JJ.A.

BETWEEN

Manzoor Ur-Rahman

Plaintiff (Respondent)

and

Oma Devi Mahatoo and Mohan Rum Mahatoo

Defendants (Appellants)

Wendy Greenspoon-Soer and Monica Unger-Peters, for the appellants

Naresh Misir and Ken Singh, for the respondent

Heard: July 7, 2016

On appeal from the order of Justice Grant Dow of the Superior Court of Justice, dated January 11, 2016.

ENDORSEMENT

[1] The appellants appeal from the order of Dow J. of the Superior Court of Justice, dated January 11, 2016, dismissing their motion for an order setting aside the default judgment of Herman J. of the Superior Court, dated April 29, 2005, and the damages judgment of Firestone J. of the Superior Court, dated May 2, 2014, and associated relief.

[2] This action arose from a slip and fall incident at the appellants’ property in Toronto on January 29, 2003, approximately 13 years ago, when the respondent, allegedly one of several tenants then living at the appellants’ property, fell on the appellants’ icy driveway while walking toward his car. On September 25, 2003, he sued the appellants in negligence, seeking damages for injuries sustained by him in the fall. The appellants were noted in default on April 29, 2005 and the respondent obtained a default judgment for damages on May 2, 2014.

[3] The appellants claim that they first learned of the default judgment, indeed of the respondent’s entire action, in mid-May 2015, when they received notice from the Sheriff’s office that a judgment against them was to be enforced against their property. They then sought legal advice and, in June 2015, moved for relief in the Superior Court, as described above, to permit them to defend the action on the merits.

[4] Before this court, the appellants acknowledge that the motion judge correctly identified the factors governing the determination whether to set aside a default judgment. However, they argue that he erred in his application of those factors by misapprehending the evidence relating to each.

[5] Specifically, the appellants submit that the motion judge erred by holding that: i) they did not act promptly after learning of the default judgment; ii) they did not have a plausible excuse or explanation for their default in complying with the Rules of Civil Procedure, R.R.O. 1990, Reg. 194; iii) they failed to raise a meritorious defence; and iv) granting the motion would offend the overall integrity of the administration of justice.

[6] We are not persuaded by these submissions. We see no reversible error in the motion judge’s discretionary decision refusing to set aside the default judgment or in his application of the governing test to the facts of this case. To the contrary, we agree with his ruling and his reasoning in support of it.

[7] The motion judge expressly referred to this court’s decision in Mountain View Farms Ltd. v. McQueen, 2014 ONCA 194, 119 O.R. (3d) 561, and the factors identified in that case, at paras. 47-51, as governing whether to set aside a default judgment. He considered the relevant factors in light of the evidence in this case and held:

(a) it was “very likely” that the respondent’s numerous attempts at service of the statement of claim and various court documents on the appellants resulted in one or both of the appellants learning of the action prior to 2015;

(b) there was evidence of repeated efforts by the appellants to evade service over several years;

(c) although the appellants admitted that they had learned in early December 2014 of a court proceeding involving them, and that they had attended at the Superior Court in relation to that proceeding, they made no inquiries regarding the nature or status of the proceeding, and took no other steps in that regard, for more than six months;

(d) the appellants advanced no plausible explanation for their lengthy default in engaging with the litigation;

(e) the appellants’ claim that the respondent was never a tenant at their property was contradicted by independent records indicating that the respondent, at the relevant times, had both credit rating records and a driver’s licence history associated with the appellants’ address;

(f) similarily, the appellants’ assertion that the respondent never fell on their property was directly contradicted by independent documentary evidence of an emergency response to the respondent’s accident at the appellants’ property and his transport to hospital on the day in question. It was also inconsistent with the appellants’ draft pleading, in which they alleged, in the alternative, contributory negligence by the respondent; and

(g) several judges or judicial officers had attempted over many years to ensure that the fact and status of the respondent’s action was brought to the appellants’ attention. Despite these efforts, the appellants took no steps to acknowledge or respond to the action against them until confronted with enforcement measures.

[8] These findings were amply supported by the evidentiary record. They overwhelmingly established unacceptable and inadequately explained delay by the appellants, a sustained pattern by them of attempting to frustrate the normal litigation process by evading service, and a proposed defence to the action of dubious merit. In these circumstances, we endorse the motion judge’s conclusion that the overall interests of justice compelled the dismissal of the appellants’ motion.

[9] The appeal is dismissed. The respondent is entitled to his costs of the appeal and the earlier stay motion, fixed in the agreed total amount of $15,000, inclusive of disbursements and HST.

“J.C. MacPherson J.A.”

“E.A. Cronk J.A.”

“M.L. Benotto J.A.”