ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 05-CV-293072
DATE: 20121012

BETWEEN:

Pasquale Doldo c.o.b. as Canadian Construction and Trucking Plaintiff/Defendant by Counterclaim – and – 1497601 Ontario Limited c.o.b. as Weston Gate Gardens Defendant/Plaintiff by Counterclaim

Kevin Sherkin , for the Plaintiff/Defendant by Counterclaim
Steven Bellissimo , for the Defendant/Plaintiff by Counterclaim

HEARD: March 12, 13, 15, 16, 19, 20, 22, July 4, and August 22, 2012

REASONS FOR JUDGMENT

Pollak J.

1## Introduction and Issue

Master Dash ordered the Statement of Defence struck out. A Notice of Appeal has been filed with respect to Master Dash’s order. The issue between the parties is now whether the Defendant has the right to make submissions before the Court with respect to the Plaintiff’s legal argument on entitlement to damages on the basis of the evidence and the pleadings.

2The Plaintiff argues that it would be an abuse of process to permit the Defendant to make submissions in the circumstances of this case. In particular, the Plaintiff submits that there has been misconduct on the part of the Defendant which has resulted in the order of Master Dash that the Defence be struck out.

3The Plaintiff relies on the noting of default of the Defendant which results from the Statement of Defence being struck. Rule 19.02 of the Rules of Civil Procedure is therefore applicable as there is a noting in default which is being relied on. It provides as follows:

CONSEQUENCES OF NOTING DEFAULT

19.02 (1) A defendant who has been noted in default,

(a) is deemed to admit the truth of all allegations of fact made in the statement of claim; and

(b) shall not deliver a statement of defence or take any other step in the action, other than a motion to set aside the noting of default or any judgment obtained by reason of the default, except with leave of the court or the consent of the plaintiff.

4The Rule prohibits a Defendant from “taking another step” in the action without leave of the Court or the consent of the Plaintiff.

5## Analysis

With respect to the interpretation of “taking a step”, the case of Park v. Park, 2011 ONSC 4234 , [2011] O.J. No. 3644, relied on by the Defendant is, in my opinion, binding on this Court. In that case, the Court held as follows:

21The motions judge further erred by denying Ms. Knudsen an opportunity to make submissions to him, other than in relation to costs, with respect to the plaintiffs’ motion which he proceeded to hear in her presence.

22Although there were evidently no reasons given by the judge for refusing to give Ms. Knudsen an opportunity to address the merits of the motion, it may be that he mistakenly believed that she was not entitled to make submissions on behalf of clients who had been noted in default.

23If that was the reason for the judge’s decision, it was based on a mistaken interpretation of rule 19.02 (1) and rule 19.02 (3) which read, in part, as follow;

19.02 (1) A defendant who has been noted in default,

(a) is deemed to admit the truth of all allegations of fact made in the statement of claim; and

(b) shall not deliver a statement of defence or take any other step in the action other than a motion to set aside the noting of default or any judgment obtained by reason of the default, except with leave of the court or the consent of the plaintiff.

19.02 (3) Despite any other rule, where a defendant has been noted in default is not entitled to notice of any step in the action and need not be served with any document in the action except…

24There is nothing in either of these provisions that deprives a counsel for defendants who have been noted in default from making submissions on their behalf in response to a motion brought against them. In particular, I would not consider the making of submissions to fall within the scope of “take any other step” in rule 19.02 (1) (b). The use of “other”, in the context of the rule, is a clear indication that the prohibition was intended to apply to a step similar to the delivery of a statement of defence, the step to which it referred.

25As well, the fact that a defendant who has been noted in default is “not entitled to notice of any step in the action and need not be served with any documents, including a notice of motion, does not mean that his or her counsel cannot independently ascertain the time and place of a motion brought by the plaintiff and attend and make submissions. In my view, there have to be clearer language in the rule to lead to an interpretation that the fundamental right of a counsel to speak on behalf of his or her own client had been taken away.

6It was held that the making of submissions does not fall within the scope of “take another step” in Rule 19.02. Further, it was held that, notwithstanding the fact that a Defendant who has been noted in default is not entitled to notice of any step in the action and is not required to be served with any documents, that such Defendant can attend at a hearing on a motion and make submissions to the Court.

7The Plaintiff submits that the Park case is not applicable as the facts of that case are different and emphasizes its argument that to allow the Defendant to make submissions in this case would be an abuse of process.

8This Court is however, of the opinion that the Park case is applicable and binding on this Court and I do not agree that the facts of that case are so distinguishable that it has no application to this case. The court, in the Park case, in my opinion, clearly addresses the issue in this case.

9Further, I do not accept the argument of the Plaintiff that permitting the Defendant to make submissions in this case would result in an abuse of process of the Court.

10Master Dash’s Order to strike out the Defence is therefore does not have the effect of prohibiting the Defendant from making any submissions.

11The cases relied on by the Plaintiff are not in my opinion, determinative of the question before this Court. The Plaintiff has been unable to rely on any jurisprudence which contradicts the Park case.

12## Disposition

As a result, this Court finds that the Defendant does have the right to make submissions before the Court. The trial will therefore resume on December 21, 2012 for one day.

13The Defendant’s counsel was not available to attend in court on an earlier date of October 19, 2012, but has undertaken to reasonably attempt to make himself available to attend in court on that day.

14The parties were directed to inform the court immediately if the Defendant counsel was able to make himself available to attend on that day.

15The Court indicated that if it found the Defendant had the right to make submissions, that the Defendant ought to reply to the submissions made by the Plaintiff with respect to the effect of the noting in default as it relates to the evidence which will be relied on by the Plaintiff.

16The Defendant is therefore required to make any reply submissions that will be relied on within twenty-one days of the date of this decision. The Plaintiff may make reply submissions within ten days of the receipt of the submissions by the Defendant (if any). The parties will ensure that the Court is provided with copies of these submissions.

Pollak J.

Released: October 12, 2012

COURT FILE NO.: 05-CV-293072
DATE: 20121012

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Pasquale Doldo c.o.b. as Canadian Construction and Trucking Plaintiff/Defendant by Counterclaim – and – 1497601 Ontario Limited c.o.b. as Weston Gate Gardens Defendant/Plaintiff by Counterclaim