SUPERIOR COURT OF JUSTICE - ONTARIO
COURT FILE NO.: CV-12-4826-00
DATE: 20130312
RE: AYR MOTOR EXPRESS INC.
- and -
BELL & BOB TRANSPORT LTD., DALJIT SINGH HUNDAL a.k.a. JERRY HUNDAL, and BALWINDER SINGH
BEFORE: Justice D.L. Edwards
COUNSEL:
Ethan M. Rogers, for the Applicant
Sukhwant S. Baidwan, for the Respondents
HEARD: March 11, 2013
E N D O R S E M E N T
[1] This is a motion to set aside the order of Justice Skarica, dated November 30, 2012, the order of Justice Andre, dated December 20, 2012, and the garnishment order in these proceedings. Further, the respondents seek an order that this matter proceed as an action and require the filing of statements of claim and defence.
[2] On November 30, 2012, the applicant brought, on an urgent and emergency basis, an application under Rule 14.05(3) of the Rules of Civil Procedure. The respondents argue that they were not properly served with notice of this proceeding. In addition, they assert that the matter was not suitable to be brought under that rule and should have been commenced as an action.
[3] On December 4, 2012, Justice Price directed that the order of Justice Skarica, dated November 30, 2012, be personally served upon the personal respondents and that a contempt hearing would be held on December 7, 2012, which hearing must be at least 24 hours after the order had been personally served.
[4] The contempt hearing was finally held on December 20, 2012 and resulted in the order of Justice Andre of the same date.
[5] The respondents assert that they were not served with the original motion documents and that the personal respondents were never personally served with Justice Skarica’s order and the notice of the contempt hearing.
[6] The first issue to address is my jurisdiction to vary or set aside the orders in question.
[7] The respondents assert that I have jurisdiction under:
a) Rule 38.01;
b) Rule 39.01(6); or
c) Rule 60.11(2).
[8] Rule 38.01 permits:
…a party who is affected by an judgment on an application made without notice or who fails to appear at the hearing of an application through accident, mistake or insufficient notice may move to set aside or vary the judgment, by notice of motion that is served forthwith after the judgment comes to the person’s attention and names the first available hearing date…
[9] Justice Skarica’s order validated the service of the respondents on November 30, 2012. Unless specifically authorized by the rules, I have no jurisdiction to overrule a judgment of another judge of this court. Karas v. Gegios [2001] O.J. No.732.
[10] I cannot, therefore, find that there was insufficient notice nor that there was no notice.
[11] I would also note that, based upon the evidential record before me, I find at least by December 11, 2012 when Daljit Singh Hundal appeared at the court house prior to the hearing, he had personal knowledge of the order of November 30, 2012. As he is a director of the Respondent Bell & Bob Transport Ltd., it too had knowledge of the order.
[12] This motion was commenced March 6, 2013, more than three months after the November 30, 2012 order. Even if I did have jurisdiction under Rule 38.01, the respondents have not complied with this rule and may not take the benefit of it.
[13] In the circumstances, I have no jurisdiction under Rule 38.01 to determine whether the application was correctly brought under Rule 14.05(3)(h).
[14] Counsel for the applicant asks that I set aside Justice Skarica’s order of November 20, 2012 as, in counsel’s opinion, service for that motion was insufficient.
[15] Justice Skarica’s order specifically validated the service. As I have already determined that the respondents cannot take the benefit of Rule 38.01, I have no jurisdiction to overrule Justice Skarica.
[16] The respondents submit that Rule 39.01(6) provides me with jurisdiction to set aside the orders. That rule provides that where the application is made without notice, or the applicant fails to make full and fair disclosure of all material facts, then this in itself is sufficient grounds for setting aside any order.
[17] As noted above, Justice Skarica has validated service. The issue of service has been decided. The question for me to determine, therefore, is whether there was full and fair disclosure of all material facts. Based upon the evidentiary record and affidavit material filed, I find that the applicant made full and fair disclosure of the facts.
[18] It must be remembered that, until the filing of this motion, at no time did the respondents file any documents, not even an appearance. It was the respondents’ choice to not file its evidence on this matter.
[19] I turn next to the December 30, 2012 order of Justice Andre. The respondents assert that, contrary to the Rule 60.11(2) and contrary to the specific order of Justice Price, personal service of the personal respondents was not accomplished. They ask me to set aside the order on this ground.
[20] Rule 60.11(2) does not provide me with jurisdiction on this matter. It is a procedural matter which was a perquisite to Justice Andre’s contempt order. What the respondents are really asking me to do is overrule Justice Andre and find an error in his order, something which I do not have jurisdiction to do.
[21] As I have already determined that Rule 38.01 and Rule 39.01(6) are not applicable in these circumstances, I do not have jurisdiction to overrule his decision.
[22] In summary, I am asked to overrule Justice Skarica and Justice Andre and set aside their orders. I have determined that the rules put forth by the respondents do not grant me jurisdiction. Absent any jurisdiction granted to me by the rules, I have no authority to do so.
[23] The respondents’ correct action was to appeal these orders. They elected not to do so. In the circumstances, I have no jurisdiction to set aside the orders.
[24] The respondents’ motion is dismissed.
[25] The parties may provide cost submissions not to exceed three pages (not including any offers to settle or bill of costs). Counsel for the applicant shall provide his submission within 15 days. Counsel for the respondent shall provide his submissions within 15 days thereafter.
Edwards J.
DATE: March 12, 2013
COURT FILE NO.: CV-12-4826-00
DATE: 20130312
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: AYR MOTOR EXPRESS INC.
- and -
BELL & BOB TRANSPORT LTD., DALJIT SINGH HUNDAL a.k.a. JERRY HUNDAL, and BALWINDER SINGH
BEFORE: Justice D.L. Edwards
COUNSEL:
Ethan M. Rogers, for the Applicant
Sukhwant S. Baidwan, for the Respondents
ENDORSEMENT
Justice D.L. Edwards
DATE: March 12, 2013