Court File No. CV-12-00461055-0000

2014 ONSC 3414

(ONTARIO)

SUPERIOR COURT OF JUSTICE

IRVIN RIOPELLE

v.

TRUCASH REWARDS INC., TRUCASH REWARDS LIMITED, DCR STRATEGIES INC., DIANA FLETCHER AND HUGUETTE MASSE

REASONS FOR JUDGMENT

BEFORE THE HONOURABLE MR. JUSTICE MYERS

On March 27, 2014, at TORONTO, Ontario

APPEARANCES:

S. Tripodi Counsel for the Plaintiff

B. Sells Counsel for the Defendants

March 27, 2014

Reasons for Judgment (Myers J.)

REASONS FOR JUDGMENT

MYERS J. (Orally):

The appeal from the Master's order is dismissed. The appellant says that he followed the Rules at all times in noting the defendant in default, serving an amended claim while the defendant's motion to strike was outstanding, noting the defendant in default again while the defendant's motion to strike the amended claim was outstanding, and aggressively seeking default judgments without notice to the defendants despite knowing that they were represented by counsel and were actively defending.

The plaintiff puts much stock in the defendant's counsel having sent a letter to the wrong email address as a basis to urge that the defendant's error should not prejudice the plaintiff. That is true, but it is the plaintiff's steps thereafter that were the issue before the Master.

The plaintiff consented to an order setting aside its first noting in default. That would have left the defendant's motion to strike the Statement of Claim to be the next step.

The plaintiff delivered its amended claim after he consented, but before the motion to set aside the noting in default was heard. Thus, he delivered an amended pleading knowing that he had consented to lift the default while the motion to strike was upcoming.

The plaintiff says that the motion to strike was a nullity because it was served while the defendants were in default before the plaintiff agreed to lift the default. Frank J. heard that argument and ordered that the motion to strike be scheduled despite the defendants having been noted in default. The fact that the plaintiff then consented to lift the noting in default makes the delivery of its amended pleading even more problematic.

The Master relied on the La Salle decision that confirms a longstanding practice requiring leave or consent to amend a pleading in face of a motion to strike, despite the wording of rule 26. The alternative would be to let amendments be made as of right and then require multiple motions to strike that overlap with pre-existing motions to strike the original claim. The La Salle rule is well understood in practice and is far more efficient and economical than the process adopted in this case. Master Muir simply put the plaintiff in the position that he would have been in had he not delivered the amended pleading in face of a motion to strike. He can still deliver an amended pleading if the action continues (but that is up to the Court of Appeal). I see no error in principle or law in that.

The costs award was commensurate with the amounts sought by the plaintiff's counsel. There was no error in principle in that regard.

Finally, the plaintiff's counsel relies on Rule 4 of the Rules of Professional Conduct to support his conduct in noting the defendants in default twice, seeking default judgment without notice (including after Roberts J. ruled that notice was required) and in arguing that he could amend his client's pleading in face of a motion to strike because the motion was brought while the defendants were noted in default. I do not think that the Rules of Ethics operate in vacuum. They are to be read with the Principles of Civility and are to be applied with a sense of justice and professionalism in mind. Adopting technical interpretations of the Rules of Civil Procedure to try to deny a defendant who is represented by counsel of notice and his, her, or its right to be heard is not required or condoned by the Rules of Ethics, and is not consistent with the Principles of Civility or the Rules of Civil Procedure. If a defendant counsel stalls or fails to respond, there are multiple options available, short of taking default proceedings knowing that the defendants are represented and defending.

The appeal is dismissed.

I'll hear you on costs, Mr. Sells?

FORM 2

CERTIFICATE OF TRANSCRIPT (SUBSECTION 5(2))

Evidence Act

I, Lisa Hsieh, certify that this document is a true and accurate transcript of the recording of Irvin Riopelle v. Trucash Rewards Inc. et al in the Superior Court of Justice held at 393 University Ave., Courtroom 804, Toronto, Ontario, taken from Recording 4899_804_20140327_120254 which has been certified in Form 1.

(Date) (Signature of Authorized Person)

Photocopies of this transcript are not certified and have not been paid for unless they bear the original signature of Lisa Hsieh, in BLUE INK, and, accordingly, are in direct violation of Ontario Regulation 587/91, Courts of Justice Act, January 1, 1990.