CITATION: Gashaw v. Riddell, 2025 ONSC 3689
COURT FILE NO.: DC-25-0000007-0000
DATE: 2025 06 23
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Matthew Riddell
The Plaintiff/ Respondent, Self-Represented
Plaintiff/ Respondent
- and -
Asrat Gashaw
Theresa Hartley, for the Defendant/ Appellant
Defendant/ Appellant
HEARD: June 16, 2025
REASONS FOR JUDGMENT
[On Appeal from the decision of Deputy Judge D. Acri delivered January 6th, 2025]
LEMAY J
[1] This is an appeal from the decision of the Deputy Judge, dismissing the Appellant’s motion to set aside the noting in default that the Plaintiff/Respondent had obtained as against the Defendant/Appellant in this action. The Deputy Judge directed the payment of the entire claim.
[2] The underlying action relates to a slip and fall that took place on February 27th, 2022, at the home where the Respondent was living. The Respondent is the tenant at the property and the Appellant is the landlord. A claim was started in April of 2022. Default judgment was obtained by the Respondent in mid-2023, and he withheld his rent until the judgment was satisfied.
[3] However, the Respondent had not properly served the Statement of Claim on the Appellant. As a result, a motion to set aside the judgment was heard, and granted, by Anderson D.J. on April 17th, 2024. Anderson D.J. directed that the Statement of Defence be served by May 15th, 2024 and that the parties discuss as payment schedule for the Respondent to return the monies to the Appellant. The Respondent brought a Judicial Review application in respect of Anderson D.J.’s order. That application is not before me and has not been pursued.
[4] Through solicitor’s inadvertence, the Statement of Defence was not served by the Appellant. The Respondent noted him in default in July of 2023. The Appellant discovered that the Statement of Defence had not been filed and sought leave to serve the Statement of Defence late. The Appellant also brought a motion to set aside the noting in default.
[5] That motion came before the Deputy Judge on January 6th, 2025. The Deputy Judge declined to set aside the noting in default, on the basis that this was the second such motion and that the Appellant should only be given so many chances. The Deputy Judge also concluded that the Respondent had injuries that were proven at an assessment and that the Respondent had received the funds from the judgment. In the Deputy Judge’s view, allowing the noting in default to be set aside would be prejudicial to the Respondent. He dismissed the motion and ordered the Appellant to pay costs in the sum of $500.00 as well as the entire amount of the claim. The Appellant appeals that decision to this Court.
[6] For the reasons that follow, I have determined that the Deputy Judge’s order must be set aside. The noting in default is also set aside, and the Defendant is entitled to deliver a Statement of Defence within thirty (30) calendar days of the release of these reasons.
Background
a) The Parties
[7] The Respondent is a tenant who lives in a residence owned by the Appellant, who is his landlord. The Appellant purchased the property after the Respondent had already been a tenant for some time, with a closing date of February 18th, 2022. Almost immediately after the Appellant purchased the property, there was an incident that led to proceedings before the Landlord Tenant Board (“LTB”). I will return to those proceedings below.
[8] On February 27th, 2022, the Respondent was walking on the driveway at the property when he apparently had a slip and fall.
[9] The Respondent did not pay rent at the property from February of 2022 until September of 2023. He began to pay a portion of his rent in October of 2023 and began paying the full amount starting in November of 2023. I will return to the significance of the non-payment of rent below.
[10] The Respondent argues that this slip and fall resulted from an accumulation of snow and ice on the driveway. The Respondent’s claim advised that he had hit his head, tooth, left hand and left forearm. The Respondent’s claim also advised that he has sustained great pain and suffering. The Respondent claimed punitive damages as well as damages for loss of income and the like.
[11] The Respondent did not actually serve this claim on the Appellant in person. Instead, he provided an Affidavit of Service that suggested he had served the claim by registered mail. However, the Appellant claims that he has never lived at the address where the Respondent sent the Statement of Claim. It was, instead, a property belonging to the Appellant’s former representative. I also note that this claim was not served personally. This brings me to the lengthy litigation history of this matter.
b) Litigation History
[12] On January 6th, 2023, the Respondent moved to note the Appellant in default. On May 31st, 2023, the Respondent attended an assessment hearing before Kaler D.J. Judgment was granted by Kaler D.J. in the sum of $35,000 plus $1,000 payable in costs and pre-judgment interest. The judgment notes only that it was based on “hearing the viva voce evidence of the Plaintiff, Matthew Riddell”.
[13] In November of 2023, counsel was retained by the Appellant and a motion was brought to have the default judgment set aside. That motion was heard before Anderson D.J. on March 20th, 2024, and an order setting aside the default judgment was issued on April 17th, 2024. In setting aside the decision, Anderson D.J. noted that there was no evidence before Kaler D.J. about the service of the claim. She concluded that, “in my opinion, the assessment hearing was deficient.”
[14] The terms of Anderson D.J.’s order were as follows:
a) Motion to set aside the default judgment was granted. b) The May 31st, 2023 order of Kaler D.J. was set aside. c) The Defendant had until May 15th, 2024 to serve and file a Statement of Defence. d) The Plaintiff was to pay costs to the Defendant in the sum of $500.00
[15] The Respondent began an Application for Judicial Review of the Order of Anderson D.J. on May 1st, 2024. The Appellant served a Notice of Appearance on May 21st, 2024, indicating that he intended to respond to this Application. As far as I am aware, this Application has not moved forward at all. It is not before me.
[16] The Appellant failed to serve or file the Statement of Defence prior to the May 15th, 2024, deadline. As a result, in July of 2024, the Respondent noted the Appellant in default. The counsel who originally had the file on behalf of the Appellant left the firm in the summer of 2024 and has, according to other Affiants, refused to provide an Affidavit to assist the Court in adjudicating these issues.
[17] In any event, new counsel discovered that the Statement of Defence had not been filed, and attempted to file it on September 24th, 2024. At that time, the further noting in default was discovered and the Appellant attempted to have the Respondent consent to have the noting in default set aside. After some back-and-forth in e-mails, the Respondent declined to have the noting in default set aside. That information was provided to the Appellant on October 16th, 2024. On October 17th, 2024, the Appellant brought a motion to have the noting in default set aside.
[18] That motion was heard by the Deputy Judge on January 6th, 2025 and was fully argued. At the conclusion of the motion, the Deputy Judge dismissed the motion. His reasons read, in their entirety, as follows:
This is the defendant's motion to set aside. This is the second such motion, the defendant having been given an opportunity in May 2024 to file a defence, and having missed that deadline.
Plaintiff has collected the funds and argues that the defendant has not complied with the Rules and that he would be prejudiced by a further set aside.
This has a long history of litigation. A defendant can be given only so many chances. Inadvertence of counsel is a consideration, but only where there is no prejudice. Plaintiff has injuries which were proven at an assessment, and has the funds, so the return of same is prejudicial.
Defendant has potential claims against the snow removal contractor, and the former lawyer, that it has not pursued.
I am not satisfied that the judgment should be set aside. The motion is dismissed. I order costs payable to the Plaintiff in the amount of $500. It is my suggestion, but not my order, that the plaintiff consider dropping his appeal of the prior costs order and that both parties absorb these costs so that this litigation can end.
[19] The Appellant appeals to this Court to have the Deputy Judge’s order set aside.
Positions of the Parties
[20] The Appellant argues that the Deputy Judge committed the following errors of law:
a) Failing to apply the test in Rule 11.06 of the Rules of the Small Claims Court. b) Inferring that this was the Defendant’s second chance to have the noting in default set aside, in spite of the previous ruling of Anderson D.J. c) Finding that there was prejudice because the Respondent had already collected his judgment d) Relying on the earlier order of Kaler D.J., which had been found to be deficient. e) Considering the fact that the Appellant had claims over against both the snow removal contractor and the lawyer as a ground for denying the motion to set aside the noting in default.
[21] The Respondent argues that the decision is reasonable and should stand. He argues that the Applicant failed to comply with the order of Anderson D.J. to serve a Statement of Defence. As a result, the noting in default was lawful. In addition, the Respondent supports the reasons of the Deputy Judge, arguing that there would be prejudice to the Respondent if the default judgment was set aside. Finally, the Respondent argues that the Applicant has delayed significantly in this case, and that there are jurisdictional errors in the decision of Anderson D.J. that should make it inapplicable.
Issues
[22] Based on the positions of the parties, I must consider the following issues:
a) Did the Deputy Judge consider Rule 11.06? b) Did the Deputy Judge improperly ignore the decision of Anderson D.J. and its’ legal effect? c) Did the Deputy Judge improperly consider extraneous factors in reaching his decision?
[23] I will deal with each issue in turn. Prior to doing so, I will address the standard of review.
The Applicable Standard of Review
[24] As set out in the parties factums, the governing standard of review is articulated in Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235. On a question of law, the standard of review is correctness. On questions of fact, the standard is palpable and overriding error. Finally, on questions of mixed fact and law, the standard lies upon a spectrum.
[25] In this case, the setting aside of a default judgment is a discretionary decision: Coombs et. al. v. Curran et. al., 2010 ONSC 1312, (2010) 100 O.R. (3d) 554 at para. 16. A motions judge is entitled to considerable deference in the exercise of that discretion, but a decision of this nature can be set aside where there is an error in law or principle, or a palpable and overriding error of fact, or if the decision is so clearly wrong as to amount to an injustice. Hill v. Forbes, 2007 ONCA 443 at para. 4, Swan v. Duggan, 2025 ONCA 302 at para. 8.
Issue #1- Did the Deputy Judge Consider and Apply Rule 11.06?
[26] As I have noted, the decision to set aside a default judgment is a discretionary decision. However, unlike the Superior Court (Rules of Civil Procedure, Rule 19.08), the Small Claims Court rules specifically articulate a test to be applied in making this discretionary decision.
[27] Rule 11.06 of the Small Claims Court Rules states:
11.06 The court may set aside the noting in default or default judgment against a party and any step that has been taken to enforce the judgment, on such terms as are just, if the party makes a motion to set aside and the court is satisfied that,
(a) the party has a meritorious defence and a reasonable explanation for the default; and
(b) the motion is made as soon as is reasonably possible in all the circumstances.
[28] The Deputy Judge was bound to apply this three-part test, failing which the order must be set aside: Coombs, para. 33. The reasons of the Deputy Judge, as set out at paragraph 18, fail to consider whether there is a meritorious defence, whether there was a reasonable explanation for the delay or whether the motion was made as soon as reasonably possible. It is an error in law to have failed to apply these three elements of the test and that error, on its own, justifies reversal of the decision.
[29] However, the Respondent in particular has made additional arguments in respect of each of the factors. He has done so arguing, inter alia, that it is permissible for the Respondent to raise any argument to sustain the judgment of the Court below: Maple Ridge Community Management Ltd. v. Peel Condominium Corp. 231, 2015 ONCA 520 at para. 38. In addition, section 134 of the Courts of Justice Act gives me the jurisdiction to make any order that the Court below ought to have made. Therefore, I will consider the factors.
Meritorious Defence
[30] I start with a consideration of the question of whether there is a meritorious defence in this case. This is a higher standard than the “arguable defence” that is used under Rule 19.08 in the Superior Court. Coombs, supra, Teliawala v. Sandhu, 2019 ONSC 2385, [2019] O.J. No. 1989 (Div. Ct.) at para. 9. I note that, it is not the “much higher” standard that the Respondent suggests in his factum.
[31] The Respondent argues that the materials that were filed show that there is no defence on the merits. He points to the fact that he has evidence that the snow was not shoveled, that the pictures of the driveway which were date-stamped manifestly demonstrate this fact. Therefore, the Respondent argues that there is no merit to the defence.
[32] The motions judge did not advert to any of this evidence in his consideration of the matter. In any event, however, the Appellant’s Affidavits demonstrate the possibility of a defence of due diligence, since the Appellant confirmed he had a snow removal contractor and had taken steps to engage that contractor. Further, there are clearly issues in respect of the damages. In that regard, I specifically note that, when due diligence is claimed, there is obviously a meritorious defence to a claim for punitive damages. If someone acted in good faith, or attempted to act in good faith, then punitive damages may very well not be payable.
Whether There is a Reasonable Explanation for the Delay
[33] The Respondent has spent a great deal of time arguing that Anderson D.J.’s decision was wrong because the Appellant had no reasonable explanation for the period of delay between when he obtained “notice” of the Statement of Claim in early 2023 and when the motion was heard before Anderson D.J. in 2024. He has referred to these as “jurisdictional errors”.
[34] As I will discuss in my analysis of the second issue, the decision of Anderson D.J. was not appealed and is not before me. Therefore, regardless of whether it was wrong, the motions judge in this case was bound by its’ findings. Those findings included a finding that the Statement of Claim was not properly served and, therefore, the Appellant was entitled as of right to deliver a Statement of Defence. The reasons of Anderson D.J. make it clear that she was not granting the Appellant an indulgence. Instead, she was setting aside everything that had happened in the case because the Respondent had not complied with the Small Claims Court Rules. The parties began afresh with that decision.
[35] As a result, the only period of delay before the Deputy Judge in this case was the period between May 15th, 2024, and September of 2024 when the default was discovered and the Appellant began to take steps to have the noting in default set aside. The motions judge did not grapple with the reasonableness of that period of delay in any way in his decision. To the extent that he did address delay, he did so on the erroneous presumption that the Appellant was seeking a second indulgence from the Court.
[36] This brings me to the actual delay and the explanation for it. The Respondent says that the delay between Anderson D.J.’s decision and the attempt to set aside the notice of motion was six months. This is incorrect, and it is actually four months. The Statement of Defence was due on May 15th, 2024, and an attempt to file it was not made until September 24th, 2024. However, after September 24th, 2024, the Appellant’s counsel was engaged attempting to get the Respondent to agree to set the order aside. Once it was clear that those efforts were not going to succeed, the Appellant brought the motion immediately thereafter. The delay between the bringing of the motion and the scheduling of the motion does not lie at the feet of the Appellant. Similarly, on these facts, the delay while counsel for the Appellant was attempting to obtain the consent of the Respondent to file the Statement of Defence does not lie at the feet of the Appellant.
[37] I should briefly address the case-law on what is a reasonable period of delay. The Respondent points to the decision in Canadian Imperial Bank of Commerce v. Petten, 2010 ONSC 6726 as an example of a four-month delay being too long to be reasonable. The problem with this argument is that each case turns on its own facts, and the Appellant has pointed to a case where a delay of more than two years was reasonable: Kowdrysh v. Jaguar Land Rover Lakeridge (2333432 Ontario Ltd.), 2024 10086 (ON SCSM). The fact that a period of delay in a different case was found to be reasonable (or unreasonable), on its’ own, does not assist the Court in determining whether the delay in this case was reasonable. The reasonableness of the delay, and the explanations for the delay, are fact-specific issues.
[38] Then, there is the explanation for the delay. Two are proffered. First, there is the fact that the Respondent judicially reviewed the decision of Anderson D.J. As a result, the Appellant’s previous counsel could have assumed that the order was stayed pending the appeal, even though such an assumption might not be correct. Second, there is the fact that there was solicitor’s inadvertence. Although the solicitor who had carriage of this matter at the time has refused to participate in the matter, both of these explanations appear reasonable to me. I also note that the Appellant’s former counsel filed the Notice of Appearance on the judicial review application, which is a clear indication of the Appellant's continued intention to participate in the adjudication of this claim.
[39] The Respondent seeks to rely on the Appellant’s conduct in LTB proceedings to demonstrate that the delay in this case was part of a pattern. Having reviewed the LTB decisions, I am of the view that they address a different issue. I also note that the financial risks to the Appellant in the LTB cases were significantly lower than the risks in this case. I do not see these decisions as relevant to either the decision I have to make or the decision the Deputy Judge had to make in this case.
[40] In any event, in determining whether an explanation is reasonable, the Court should generally err on the side of accepting the explanation, as claims should be determined on their merits. 441612 Ontario Ltd. v. Albert, 1995 CarswellOnt 135, [1995] O.J. No. 271 at para. 46.
[41] In the circumstances of this case, when the explanation and the time period are considered, I conclude that there was a reasonable explanation for the delay.
Whether the Motion was Made As Soon as Possible
[42] This factor may be briefly dealt with. Once the error was discovered on September 24th, 2024, counsel moved promptly to resolve the matter. The motion was brought in less than a month, and the time between discovery and bringing the motion was taken up with determining whether the Respondent would consent to the bringing of the motion.
[43] Once counsel determined that the Respondent would not consent, the motion was brought promptly thereafter. As I have noted elsewhere, the delay between the time the motion was served and when it was heard is not generally delay that will accrue to the Appellant.
Conclusion
[44] The Respondent argues that the Deputy Judge considered the prejudice that the Respondent might suffer. The Appellant concedes, correctly, that prejudice is a factor that can be considered in applying the three-part test. However, as I will review below, the Deputy Judge erred in his consideration of the Respondent’s prejudice. He also erred in law by not considering the prejudice of enforcing the default judgment that might accrue to the Appellant.
[45] I should also address the prejudice that the Respondent has raised that an eyewitness, Gregory Kelly, passed away in the fall of 2024. I am of the view that this is not a significant prejudice for the following reasons:
a) Even if a Statement of Defence had been filed in May of 2024, Mr. Kelly still would not have been available to testify. This reason is, in and of itself, sufficient to negate the claimed prejudice. b) The Respondent has photographs of the scene, and he can testify as to those. c) The Appellant’s defence appears to be based more on a due diligence defence, although I acknowledge that is not entirely clear from the record.
[46] The motions judge failed to apply the test under Rule 11.06 and, in doing so committed an error of law. As a result, the decision cannot stand. For the reasons I have set out above, I conclude that the noting in default must be set aside. While that would be enough, on its own, to allow the appeal, there are additional arguments that should be addressed, and I turn to them now.
Issue #2- The Effect of Anderson D.J.’s Decision
[47] There are two points that must be addressed in considering this decision. First, what the effect of the decision of Anderson D.J. was and second what relevance, if any, the errors that the Respondent claims exist in that decision have on this appeal.
a) The Effect of the Decision
[48] The decision issued four Orders, as reproduced at paragraph 14, above. The effect of those four orders is to set aside the default judgment and the order of Kaler D.J. from the assessment hearing. The reasons make it clear that Anderson D.J. was setting aside this default judgment ex debito institiae, or as of right. Based on case-law, she found that the failure of personal service of an originating process was fatal to the default judgment in this case.
[49] In argument, the Respondent stated that Anderson D.J.’s decision was contingent on the Appellant serving his Statement of Defence. The Respondent argues that, since the Appellant did not serve the Statement of Defence, the decision of Anderson D.J. no longer applies. I reject this argument for two reasons.
[50] First, Anderson D.J.’s decision makes four specific orders. The order setting aside the noting in default is not contingent on serving and filing a Statement of Defence by May 15th, 2025. It sets aside the default judgment as of right because of improper service.
[51] Second, if Anderson D.J.’s order had been contingent, the Respondent would not have needed to note the Appellant in default again and pursue a further noting of default. He could simply have moved to restore the previous judgments. He could not do that because Anderson D.J.’s order started everything over again.
[52] In the end, the effect of this decision was to find that the Statement of Claim had been improperly served, that the notice of default and default judgment must be set aside, and that the parties were starting anew. The assessment hearing before Kaler D.J. was specifically found to be deficient. The Appellant was not granted an indulgence for failing to respond to the Statement of Claim. The judgment that the Respondent had obtained was set aside as a result of the Respondent’s non-compliance with the Rules.
b) The Jurisdictional Arguments
[53] The Respondent argues that this decision has several jurisdictional errors in it and, as a result, it should not be followed or applied. I disagree. The Respondent began a judicial review application but has not pursued it. Further he did not cross-appeal Anderson D.J.’s decision. Therefore, any errors in that decision are not before me.
[54] In any event, however, there was (and is) no order setting aside this decision. As a result, the decision (and orders) of Anderson D.J. were before the Deputy Judge and had to be applied by him.
[55] That said, I will briefly address the Respondent’s submissions on the alleged errors in Anderson D.J.’s decision. First, the Respondent argues that Anderson D.J. erred by not accepting that the Appellant had received the Statement of Claim in February of 2023. In this respect, the Respondent points to the fact that the Appellant’s former LTB counsel received a courtesy copy of the Statement of Claim, and the Appellant acknowledged receiving this in an Affidavit. There are two problems with this argument. First, the fact that the claim somehow came to the attention of the Appellant does not relieve the Respondent of compliance with the Rules. Second, as pointed out above, the decision of Anderson D.J. has not been appealed and the judicial review application has not been pursued. That decision remains binding.
[56] Second, the Respondent argues that the Applicant had “consented to service of written communications and correspondence by e-mail”. This argument is based on an e-mail sent when the Appellant bought the property. This e-mail states that the Appellant is the new owner of the Respondent’s property and that the Respondent can e-mail or text him. It is unreasonable to rely this sort of general communication about how to contact your landlord in support of a conclusion that he has agreed to set aside the usual rules of Court in respect of service of potentially expensive legal proceedings. The Respondent’s argument on this point has no merit.
[57] Third, the Respondent argues that his failure to serve the Appellant personally was an irregularity and that this irregularity can be waived by the Courts. In support of this argument, he directs my attention to the decision in Lapointe v. Les Gaz Speciaux M.E.G.S. Inc., 2008 60710 (ONSC).
[58] There are four problems with this argument:
a) The Respondent did not seek relief in respect of this “irregularity” before he acted on it. b) The decision to invoke the rule in respect of irregularities is a discretionary one. c) The decision in Lapointe was decided under Rule 19.08 of the Rules of Civil Procedure, which do not have a specific test set out in the Rules. d) The decision in Lapointe speaks to the fact that default proceedings taken after the claim came to the attention of the Defendant may not be a nullity. However, in this case, the earliest the claim could have come to the attention of the Defendant was in February of 2023, and the default proceedings had already been taken.
[59] For these reasons, on the record before me, I see no errors in Anderson D.J.’s decision. It was binding and the Deputy Judge was bound to apply it, and make his decision in a manner that was legally consistent with it.
c) Did the Deputy Judge Improperly Ignore Anderson D.J.’s Decision?
[60] I conclude that the Deputy Judge improperly ignored Anderson D.J.’s decision in two ways. First, he found that this was the Appellant’s second indulgence (my word) in spite of the fact that Anderson D.J. found that the first noting in default was a nullity.
[61] Second, he found that the damages had been proven in spite of Anderson D.J.’s conclusion that the hearing before Kaler D.J. had resulted in a decision that was “deficient”. That determination also bound the Deputy Judge.
[62] As a result, the Deputy Judge committed an error in law by failing to properly consider and apply the previous decision of the Small Claims Court on the same facts.
Issue #3- Were Improper Factors Considered?
[63] In my view, the Deputy Judge considered two improper factors. First, the fact that the Respondent had “successfully garnished” the Appellant. Second, the Deputy Judge considered the fact that the Respondent had claims over against his former lawyer and the snow removal contractor. I will deal with each error in turn.
Garnishment
[64] The Respondent began a premature enforcement process in February of 2022, when he began withholding his rent from the Appellant. The Respondent withheld this rent for more than a year, without any lawful basis to do so that this Court is aware of. He certainly did not have a judgment of the Small Claims Court in this action to justify the withholding of rent.
[65] On June 6th, 2023, the Respondent filed paperwork in respect of a garnishment. He then served that paperwork on the Appellant. However, there are two problems with that paperwork. First, it is not clear that the proper forms were issued by the Court. In particular, the Court issues a Form 20E to enforce the garnishment. I did not see such a form in the record before me. Second, most of the debt had already been collected by the Respondent before he was entitled to issue an order of garnishment against the Appellant.
[66] In any event, the fact that the Respondent satisfied his judgment in advance of being entitled to it does not create prejudice for the Respondent for two reasons. First, if a claimant is paid money improperly, the fact that they were paid the money does not mean that they are prejudiced if they have to pay it back. Second, and more importantly, finding prejudice on the facts of this case would be encouraging parties who have small claims court cases to attempt to enforce their judgments before the Court issues them so that they can then claim “prejudice” if the judgment is subsequently set aside. This sort of argument runs the risk of bringing the administration of justice into disrepute by encouraging self-help remedies. It was an error of law for the Deputy Judge to accept it.
The Claims Over
[67] As part of his reasons, the Deputy Judge noted that the Appellant had not pursued an action against his snow contractor or against his lawyer. The fact that the Appellant might be able to claim over against the snow contractor for negligence is not relevant to the application of Rule 11.06. As a result, this was an improper consideration and an error in law.
[68] The Deputy Judge’s observation that the Appellant could claim against his lawyer is even more concerning. Generally, the Courts do not visit the sins of counsel on their clients. In this case, that is precisely what the Deputy Judge did. Further, the Deputy Judge assumed that there was a claim over without considering whether there was any real prospect that the Appellant would be able to advance a successful solicitor’s negligence claim.
[69] For these reasons, I find that the Deputy Judge considered irrelevant issues in reaching his decision. It is further reason why the decision must be set aside.
Conclusion and Costs
[70] For the foregoing reasons, the appeal is granted, the noting in default is set aside, and the Appellant has leave to deliver a Statement of Defence by no later than July 22nd, 2025. The regular Small Claims Court Rules will apply going forward.
[71] The parties are encouraged to agree on the costs of this appeal, and the costs outstanding below. Failing agreement, each party shall have twenty-one (21) calendar days from the release of these reasons to serve, file and upload costs submissions. Those submissions are to be no more than three (3) single-spaced pages, exclusive of bills of costs, caselaw and offers to settle.
[72] Each party shall then have fourteen (14) calendar days thereafter to serve, file and upload any reply submissions. Those reply submissions are to be no more than two (2) single-spaced pages, exclusive of case-law.
[73] There are to be no extensions to these deadlines, even on consent, without my leave. If costs submissions are not received in accordance with these timelines, there shall be no order as to costs.
[74] In addition to serving, filing and uploading their costs submissions, the parties are to provide a copy of those submissions to my judicial assistant. Those submissions are to be sent to the general email box at SCJ.CSJ.General.Brampton@ontario.ca. This is not in lieu of filing with the Court office. The e-mail is to have the file name and for my attention in it when it is sent.
[75] Finally, the parties are reminded that there is to be no communication through this general e-mail box, except for delivery of the costs submissions and/or the reply submissions.
LEMAY J
Released: June 23, 2025
CITATION: Gashaw v. Riddell, 2025 ONSC 3689
COURT FILE NO.: DC-25-0000007-0000
DATE: 2025 06 23
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
Matthew Riddell
Plaintiff/Respondent
- and -
Asrat Gashaw
Defendant/ Appellant
REASONS FOR JUDGMENT
LEMAY J
Released: June 23, 2025