CITATION: Mulders v. Baggia, 2025 ONSC 3134

COURT FILE NO.: DC-25-01

DATE: 2025/05/28

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: TADEENE MARIA MULDERS and ERIC EGIDIUS MULDERS, Plaintiffs/Respondents

AND:

AHMED FAROOK BAGGIA and ZAHED BANU AHMED BAGGIA, Defendants/Appellants

BEFORE: Tranquilli J.

COUNSEL: Sandra DiMeo, for the Plaintiffs/Respondents

Vidit Deswal, for the Defendants/Appellants

HEARD: May 20, 2025

ENDORSEMENT

Overview

[1] The defendants move for an extension of time to commence the appeal of the Deputy Judge’s dismissal of their motion to set aside default judgment on November 22, 2024. An appeal of this order ought to have been commenced by December 23, 2024. The defendants first gave notice of an intent to appeal on January 8, 2025. They served a notice of motion on January 26, 2025, but sought an adjournment of their motion on February 10, 2025, in order to file evidence in support of the motion. Those materials were sworn on March 2 and 3, 2025 and the motion was argued on May 20, 2025.

[2] The court’s preference is to decide matters on their merits rather than on procedural grounds. However, these reasons will explain why the court finds the justice of the case does not require an extension of time to commence an appeal. The motion to extend time to commence the appeal is therefore dismissed.

History of Proceedings

[3] The following overview of evidence is obtained from the pleadings and evidence filed on this motion.

The Default Judgment

[4] The underlying dispute arises from a residential real estate transaction between the parties in November 2020 concerning premises municipally known as 22 Warren Crescent, St. Thomas. The plaintiffs alleged there were several deficiencies and mold in the subject property of which the defendants were aware and which they actively concealed in marketing the property for sale. The plaintiffs commenced the action by Plaintiff’s Claim issued March 31, 2021, in the Small Claims Court of the Superior Court of Justice, naming both the defendants and a home inspector retained by the plaintiffs to assess the property before closing.

[5] The Plaintiff’s Claim was served upon the home inspector, who defended the action. The plaintiffs’ agent also personally served the defendants on April 3, 2021. The defendant vendors did not deliver a statement of defence. The matter proceeded to settlement conference in February 2023, at which time the defendant home inspector was released from the action. The defendants were noted in default in March 2023. On July 7, 2023, the plaintiffs obtained default judgment in the amount of $35,322.75 including interest and $3,500.00 in costs.

[6] The defendants claimed they first became aware of the default judgment in January 2024 when they were served with a notice of examination. They attended court in February 2024, at which time the examination was adjourned to allow the defendants to bring a motion to set aside the default judgment.

The First Motion to Set Aside Default Judgment

[7] The defendants retained counsel, who first brought a motion to set aside the default judgment on March 18, 2024. On June 14, 2024, this motion was dismissed without prejudice to renew the motion with better evidence as the materials had not met the test pursuant to rule 11.06 of the Rules of the Small Claims Court.

The Second Motion to Set Aside Default Judgment

[8] The defendants renewed their motion to set aside the default judgment on or about August 9, 2024, with new motion materials. The motion was argued before Deputy Judge Osterberg on November 22, 2024.

[9] For oral and written reasons released on that same date, November 22, 2024, the Deputy Judge dismissed the defendants’ motion to set aside the default judgment.

[10] The court observed that the defendants were probably served with the Plaintiff’s Claim but could not locate an affidavit of service confirming this, such that there was a reasonable explanation for the default. However, the court was not satisfied the motion was brought as soon as reasonably possible. There was no explanation for the delay between January 2024, when the defendants knew about the default and March 15, 2024, when they brought the first motion. There was also no explanation for the delay in bringing the second motion in August 2024 after the first one was dismissed in June 2024. Finally, the court found the defendants failed to adequately demonstrate a meritorious defence. The defendants’ contention that the plaintiffs purchased the property “as is, where is” with an opportunity to inspect was too vague to satisfy the court there was a meritorious defence. In any event, even had the court accepted there was a meritorious defence, the Deputy Judge found that the justice of the case, particularly including the defendants’ failure to move promptly, required that the motion be dismissed.

Events After November 22, 2024

[11] The court provided a copy of the Deputy Judge’s Order providing the written reasons for the dismissal to defendants’ counsel on November 27, 2024. The defendants’ counsel had apparently travelled to India by this date.

[12] By email of December 6, 2025, defendants’ counsel asked the court to provide a typed version of the Deputy Judge’s Order because it was “really hard” for him to read. By further email of December 9, 2025, defendants’ counsel provided the defendants with a copy of the handwritten order. Any other details that may have been included in the email attaching the order are apparently redacted and unknown. By responding email of December 10, 2024, the court advised defendants’ counsel that a typed version of the order was no longer available but that he could order a copy of the transcript. The court representative also provided a link for more information on ordering a transcript.

[13] According to the defendants, on December 13, 2024, defendants’ counsel sent a letter to the defendants from India via regular mail during the Canada Post strike (which ended December 17, 2024). The letter advised the defendants that their counsel had returned to India on an urgent and personal matter. He would not be able to continue to act for them and would not be available for further communication. The defendants’ affidavits do not explain when this letter was received.

[14] The defendants retained new counsel in early January 2025, who wrote to the plaintiffs’ agent on January 8, 2025, to advise the defendants intended to appeal the dismissal of their motion. The agent responded that a motion to extend the time for appeal would be necessary.

[15] On January 26, 2025, the defendants served the plaintiffs with the notice of motion to extend time for appeal and the proposed notice of appeal. The notice of motion did not include a supporting affidavit. On February 10, 2025, the defendants requested an adjournment of their motion because they had not received the complete file from previous counsel. The motion was adjourned to a new date, peremptory on the defendants.

[16] The parties had agreed to a schedule for the exchange of materials that would have included provision for cross-examinations on affidavits. Cross-examinations did not take place. The plaintiffs did not seek to cross-examine the defendants. While the defendants attempted cross-examinations and served a notice of examination, this was not done on a timely basis in accordance with the schedule or with proper notice to the plaintiffs.

Analysis

Fresh Evidence

[17] I must first address the plaintiffs’ objection to the defendants’ affidavit evidence that proposes to address the merits of their defence. The proposed appellants have each filed mirror affidavits in support of their motion, several paragraphs of which purport to speak to the merits of their defence, thereby addressing whether there were satisfactory grounds on which to set aside the default judgment.

[18] The defendants’ affidavit materials contain several paragraphs that purport to speak to the merits of their defence to the underlying claim. The plaintiffs object to the admissibility of this fresh evidence and submit the defendants failed to seek leave.

[19] The original affidavit before the Deputy Judge explained the merits of their defence asserted the sale of the house was on an “as is” condition, that the plaintiffs had the benefit of home inspection, that there was no active concealment or misrepresentation, and that the defendants had never resided in the property.

[20] The affidavits on this motion set out several further paragraphs in support of these bald assertions. The paragraphs repeat the general assertions from the original affidavit and add factual contentions including that the property had no defects or flaws beyond normal wear and tear and that the alleged deficiencies arose after the closing date.

[21] An appellate court has the discretion to receive proper evidence in a proper case: Courts of Justice Act, s. 134(4). I find it would not be proper to admit these additional paragraphs into evidence for consideration on this motion.

[22] These additional factual contentions could have been adduced at the motion to set aside default judgment by due diligence. There is no explanation as to why these contentions, which were within the direct knowledge of the defendants, could not have been presented at the motion they now seek to appeal. The defendants are now asking this court to arrive at a different conclusion from the Deputy Judge regarding the existence of a meritorious defence based on a consideration of new evidence in combination with the evidence at the motion and to arrive at a different conclusion based upon the enhanced evidentiary record. Finality concerns are especially important in civil proceedings a demand a restrictive approach to the admissibility of evidence on appeal: St. Amand v. Tisi, 2018 ONCA 106 at para. 10; Palmer v. The Queen, 1979 8 (SCC), [1980] 1 S.C.R. 759 at 775.

[23] In any event, I also find the additional factual proposed contentions relied upon by the defendants for a meritorious defence are irrelevant. They fail to address the crux of the plaintiffs’ claim; that there was an active and fraudulent concealment of the defects known to the defendants. In all, I find the additional evidence consists of no more than a slightly more detailed repetition of bald denials of liability. These paragraphs could not reasonably be expected to have affected the result of the motion to set aside the default judgment.

Extension of Time to Commence Appeal

[24] The court can extend time to appeal under r. 3.02 of the Rules of Civil Procedure when it considers it just to do so. The onus is on the moving party to establish the grounds for an extension. Each case depends on its own circumstances; however, the factors that the court should consider in the exercise of its discretion are well established: Teitler v. Dale, 2021 ONCA 577 at para. 7. In balancing these factors, and any others that may be relevant, the court must also consider the overarching principle of whether the “justice of the case” requires the extension of time: Teitler, at para. 7, 40 Park Lane Circle v. Aiello, 2019 ONCA 451 at para. 2.

(i) Was there a Bona Fide Intention to Appeal Within the Prescribed Period?

[25] The defendants baldly, yet vaguely assert that they gave their previous counsel instructions to appeal the dismissal of their motion within the 30-day period: “Once the Order was passed … I instructed my lawyer to commence the appeal against the Order.” Their affidavits also each contend that their lawyer failed to instruct them of the statutory 30-day period within which they had to commence an appeal.

[26] However, their affidavits do not provide the important particulars of when they first informed that intention to appeal and how and when they communicated those instructions. This is notable, as this motion was first adjourned at the defendants’ request ostensibly to obtain previous counsel’s file. However, no details of any such instructions the defendants may have provided to their former counsel are provided.

[27] The record shows their former counsel sent the order to the defendants by email on December 9, 2025, but there is no evidence as to what, if any, communications accompanied that email or what discussions may have preceded or ensued about proceeding with an appeal. Counsel was present in court for the Deputy Judge’s decision at the conclusion of the motion on November 22, 2024, such that it would be reasonable to infer the defendants were aware of the outcome of the motion on the very day the motion was heard, or shortly thereafter. I would have expected communication about an intention to appeal to have been communicated reasonably shortly after the order was made. The absence of evidence of any such communication during the appeal period is telling.

[28] The evidence that has been provided raises more questions than answers about the defendants’ intention to appeal. The letter sent by former counsel by regular mail from India on December 13, 2024, is at odds with the fact that he sent the order to the defendants’ attention by email four days earlier on December 9, 2024. The ostensible use of regular mail during a strike and where email had previously been used between the parties is also curious. Counsel’s letter also summarily terminates the retainer after having provided the order by email a few days earlier but makes no mention of an appeal, instructions to appeal, or that the defendants had 30 days in which to commence an appeal of the order. Finally, the defendants’ affidavits do not mention when they received this letter following the end of the postal strike. Nevertheless, their affidavits speak of having to scramble to find new counsel during the Christmas season. If their counsel did not advise them of the limited time in which to appeal, how did they know they had to rush to retain new counsel?

[29] The earliest manifest expression of an intention to appeal is with new counsel’s communication on January 8, 2025, after the expiration of the appeal period.

(ii) The Length of and Explanation for the Delay

[30] The length of delay is admittedly a matter of about three-weeks. However, the explanation for delay is troubling and starts with the highly unsatisfactory evidence just reviewed about the defendants’ dealings with their former counsel. The steps of receiving a copy of the written reasons and then the further delay occasioned with asking for a typewritten version are unresponsive, given that counsel was present for the oral reasons provided on November 22, 2024. The fact that he was out of the country during the appeal period did not appear to be a barrier to timely communication, as suggested by the defendants. Counsel emailed the court and also provided the defendants with a copy of the order in issue.

[31] The defendants blame their former counsel for not acting on instructions to commence the appeal, which presumes they did, in fact, provide those instructions during the appeal period. As just summarized, the evidence is lacking in that regard. Moreover, in the circumstances of this record, if their former counsel is responsible for the delay in seeking an appeal, their better recourse lays in a professional negligence claim rather than to deprive the respondents of judgment: OZ Merchandising Inc. v. Canadian Professional Soccer League Inc., 2021 ONCA 520 at para. 44.

(iii) Any Prejudice to the Respondents

[32] There is general prejudice to the plaintiffs by virtue of the further expense of an appeal and delay in enforcing judgment. However, the respondents concede that prejudice of the nature required to preclude an extension of time is not present: Teefy Developments (Bathurst Glen) Limited v. Sun, 2021 ONCA 870.

(iv) The Merits of the Proposed Appeal

[33] The merits of the proposed appeal pose a significant hurdle for the proposed appellants.

[34] The motion judge’s decision to either dismiss or grant a motion to set aside default is discretionary: r. 11.06, Rules of the Small Claims Court. It is not the role of an appellate court to replace the motion judge’s exercise of that discretion. An appellate court should only intervene where the motion judge’s discretion was exercised on a wrong principle of law or a clear error was made: Laredo Construction Inc. v. Sinnadurai, 2005 46934 (ON CA); Bottran v. Vroom, 2002 41691 (ON CA).

[35] A review of the transcript of the motion, his oral reasons, and his written order all illustrate that the Deputy Judge was alive to the factors he was required to consider in the exercise of his discretion, being whether the defendants had a meritorious defence, a reasonable explanation for their delay and the motion being made as soon as was reasonably possible in all the circumstances. While he accepted there was an explanation for the default, he found that the justice of the case required that the motion be dismissed because of the defendants’ delay in bringing the motion once they were aware, between January and August 2024 and that even on a “generous reading”, the defendants had not adequately demonstrated a meritorious defence. In my view, these conclusions are supported by the record and entitled to deference.

[36] As also noted by the respondents, the defendants’ proposed additional affidavit evidence as to the merits of their defence would also seem to confirm the reasonableness of the Deputy Judge’s finding that the particulars were too vague to satisfy the court that there was a meritorious defence.

[37] There is one factual error; however, this does not benefit the defendants’ position. The motion judge concluded that while he thought the Plaintiff’s Claim was “probably” served on the defendants in April 2021 as asserted by the plaintiffs, he could not make that finding as there was no affidavit of service on file. I am satisfied there was, in fact, an affidavit of service attesting to personal service of the Plaintiff’s Claim on the defendants by the plaintiffs’ agent on April 3, 2021, at the defendants’ home in Markham, Ontario. It is evident from the transcript that the court was searching the file for an affidavit of service dated from the time of service in 2021. In fact, the affidavit of service was sworn by the agent on March 14, 2023, in preparation for requesting that the court enter default judgment. This affidavit of service and the agent’s related email to himself documenting the personal service in 2021 responds to the defendants’ bald denial that they were never served with the claim and that they were only first aware in January 2024.

(v) The Justice of the Case

[38] In balancing these factors and considering the overarching principle, I conclude the justice of the case does not favour an extension of time for the appeal. Although the delay amounts to a matter of a few weeks and there is a lack of prejudice, I find the explanation of the circumstances of the delay and when the defendants first formed the intention to appeal are less than forthright. There is little merit to the appeal, which is only reinforced by the fact that there is evidence that the defendants were personally served with, and therefore knew of, the claim in April 2021 and chose not to participate. Moreover, the defendants’ conduct throughout this proceeding has been little more than continued delay and a failure to engage on the merits of the dispute. They did not defend the action although personally served. They had the benefit of the doubt in arguing they were not aware of the proceeding and default judgment until January 2024, yet they delayed in bringing the motion to set aside default judgment until March 2024. That motion was dismissed without prejudice because of deficient materials. Yet the defendants waited another two months to renew the motion, with no explanation for this additional delay or a self-evident change in the materials. This pattern of unexplained delay has continued with the failure to commence an appeal within the required period.

Disposition

[39] The defendants’ motion is therefore dismissed for these reasons.

[40] If the parties are unable to resolve costs, the plaintiffs shall serve and file their submissions by June 10, 2025, and the defendants shall serve and file their submissions by June 16, 2025. Written submissions shall be no more than two (2) pages in length, excluding any offers to settle or bill of costs. There is no right of reply without leave.

Justice K. Tranquilli

Date: May 28, 2025