2015 ONSC 137

COURT FILE NO.: 3431-14

DATE: 2015/01/12

SUPERIOR COURT OF JUSTICE – ONTARIO

RE: Todd Speck (Plaintiff)

And:

Alma Mater Society of Queen’s University Incorporated (Defendant)

BEFORE: Justice I. F. Leach

COUNSEL: The plaintiff appeared, self-representing

J. Michael Hickey, for the defendant

HEARD: January 6, 2015

ENDORSEMENT

[1] The defendant in this libel action moves, pursuant to Rule 19.03 of the Rules of Civil Procedure, to set aside its noting in default and obtain leave to file a statement of defence within 30 days.

[2] The plaintiff strenuously opposes the granting of such relief, and wishes to proceed with his ongoing preparation of a motion for default judgment.

[3] In the result, a considerable amount of material was filed in relation to the motion, (despite its being brought in the regular weekly “motions court”, held each Tuesday in London, to deal with relatively short matters lasting no more than 20-30 minutes in total).

[4] I nevertheless had an opportunity to review all of that material in advance of hearing extended argument from both sides, which I permitted at the end of the day, after all other matters had been addressed, and well beyond the normal sitting hours of the court. (This was after I had called the parties forward earlier in the day, to question whether the matter should be adjourned to a special appointment, having regard to the material that had been filed. Both sides were nevertheless intent on proceeding.)

[5] I also now have reviewed the material again, in its entirety.

[6] My reference below to specific facts or matters should not be taken as an indication that other remaining details, evidence and submissions were not considered.

Background

[7] The parties’ current dispute has its genesis in an article written and published in The Journal, (the Queen’s University student newspaper), back in November of 2006, at a time when the plaintiff was living in Kingston and a candidate in a pending municipal election.

[8] Part of the article, published under the headline “Meet your city council candidates”, noted that the plaintiff had expressly declined to participate in an interview, for indicated reasons, and then went on to set forth suggested information about the plaintiff implicitly garnered, if at all, through sources other than the plaintiff.

[9] Such information included the following statements:

In August 1994, Speck pled guilty to sexual assault as a third-year political studies student.

Speck was sentenced to 18 months probation and ordered to take anger management counseling and complete 60 hours of community service.

[10] It appears to be common ground that the article was inaccurate and untrue in at least one very important respect. In particular, although the plaintiff acknowledges that he pled guilty to assault in April of 1995, (not August of 1994), he has never been convicted of sexual assault.

[11] After the initial print publication of the relevant article, on November 3, 2006, the article apparently was stored in the electronic archive of The Journal, which is accessible through the internet. There it remained, with its original content, for more than 7 years.

[12] The plaintiff’s amended pleading indicates that the article came to his attention only in March of 2014, when collateral events caused him to wonder whether the president of his bargaining agent, (in making general reference to student disciplinary matters at Queen’s University in the early 1990s as a reason for a possible conflict of interest), had come across something published online relating to the plaintiff’s 1995 assault conviction. The plaintiff then searched his own name on “Google”, which brought the aforesaid 2006 article from The Journal to his attention.

[13] A chronology of some of the events which followed, and led to the present impasse, includes the following:

• On March 5, 2014, the plaintiff sent emails to the current co-editors of the student newspaper, advising them of the offending article and perceived defamation, demanding removal of the article from the paper’s website, requesting an apology, and advising that legal action was pending. It seems no reply or remedial action was forthcoming in the next two weeks.

• On March 19, 2014, a written libel notice from the plaintiff was hand-delivered to the co-editors of the student newspaper.

• On March 21, 2014, the co-editors sent the plaintiff an email response, advising that they were consulting with their lawyer at the moment, and would be contacting the plaintiff in due course.

• On March 31, 2014, the co-editors then sent the plaintiff a further email, indicating that “after looking into background” and consulting with their lawyer, the online version of the story would be revised so as to delete the word “sexual” from the statements about the plaintiff, such that there would be an indication that the plaintiff had “pled guilty to assault”, (not sexual assault), in August, 1994. The same email invited the plaintiff to advise of any further factual errors in the article. Affidavit evidence filed by the defendant indicates that the contemplated revision to the online version of the story was made the same day.

• On June 4, 2014, the plaintiff issued his original statement of claim in relation to this matter, seeking $200,000 in damages, together with interest and costs. Although the plaintiff is not yet a practising lawyer, he has attended law school and is working to complete the licensing requirements of the Law Society of Upper Canada. In commencing his action, and at all times since, he therefore has chosen to represent himself.

• On June 23, 2014, the statement of claim was served on the defendant. The relevant affidavit of service indicates that the plaintiff himself delivered the pleading to the defendant by leaving a copy at the defendant’s office in Kingston, at 9:15am. By 1:57 pm the same day, Jim Ivers, a Toronto-based insurance adjuster retained by the insurers of Queen’s University, was emailing the plaintiff indicating that an investigation had been commenced, and essentially requesting waiver of the need for delivery of a formal statement of defence. Specifically, the mail from Mr Ivers includes a statement saying: “We would be grateful if you would extend an indulgence with respect to filing a Statement of Defence for the time being.” The email concluded with an indication that, once there had been an opportunity to investigate and report to the insurers, there would be further contact with the plaintiff. Mr Ivers also indicated agreeability to meeting with the plaintiff to discuss the matter on a without prejudice basis.

• On July 3, 2014, there was a relatively brief email dialogue between Mr Ivers and the plaintiff. In particular:

o Mr Ivers sent the plaintiff another email shortly after noon that day, noting that no response to his earlier email seemed to have been received from the plaintiff. The email noted that there had been a report to the defendant’s insurers, and concluded with another request to the plaintiff addressing the need for the filing of a formal statement of defence: “Please advise if you are prepared to grant an indulgence.”

o Approximately 18 minutes later, the plaintiff responded with an email expressing uncertainty as to why he was being contacted by Mr Ivers rather than legal counsel for the defendant. However, the plaintiff’s message went on to indicate that he was “willing to be reasonable in the resolution of this matter, provided that the AMS moves swiftly towards resolution, and that it is acting in good faith”. The plaintiff indicated that it would “behoove” the defendant to keep him “informed of the timeline in which [the defendant] expect[ed] to move towards resolution”.

o About 70 minutes later, Mr Ivers responded to the plaintiff’s email by repeating that he had been retained by the defendant’s insurers. He noted that he had completed a report prior to service of the statement of claim, and that he was now “arranging to obtain instructions to complete some further inquiries with [the] AMS”. Mr Ivers concluded by saying that, if it was a case for settlement, he would negotiate with the plaintiff on behalf of the insurers. He concluded by indicating: “There should be no need to retain defence counsel unless this is a case for defence or we cannot come to an agreement on damages. If you can give me 30 days, that should be adequate.”

• On July 4, 2014, the plaintiff sent Mr Ivers a brief response, saying “I’ll look forward to hearing from you by August 1^st”.

• On August 1, 2014, Mr Ivers sent another email to the plaintiff, indicating that he had “not been able to complete [his] inquiries, mainly because of people’s holiday commitments”, and because he also was “dealing with four different insurance companies”. Mr Ivers nevertheless indicated his expectation that he would have everything completed “by mid-September”, and that he would advise the plaintiff of the defendant’s position “at that time”. Mr Ivers went on to state the following: “In the meantime, I have requested the insured’s corporate counsel Michael Hickey to file a Notice of Intent to Defend to regularize the legal proceedings, but he will not do anything else, provided this meets with your approval, until we have a chance to consider our position in mid-September.” The message concluded by thanking the plaintiff for his “courtesy and cooperation throughout”. The plaintiff sent no email in response. However, his later affidavit evidence indicates that this was deliberate, as Mr Ivers “had not kept his word, and his actions most certainly did not meet with [the plaintiff’s] approval”. The plaintiff also decided that he would “wait until mid-September before taking further action”, but again, communicated nothing concerning his reaction or intention to Mr Ivers.

• On August 6, 2014, the defendant’s corporate counsel, J. Michael Hickey, (who should be distinguished from Michael G. Hickey, a lawyer in the same law firm who swore the supporting affidavit relied upon by the defendant), sent the plaintiff an email saying, “Please see attached letter and Notice of Intent to Defend”. As indicated, attached to the email were a formal Notice of Intent to Defend, and a brief cover letter simply saying: “We are solicitors for the Alma Mater Society of Queen’s University Incorporated, the defendant in the above noted matter. Please find enclosed Notice of Intent to Defend served upon you pursuant to the Rules of Civil Procedure.” The plaintiff did not, at the time, acknowledge or respond to the email or its attachments. However, in his later affidavit evidence filed in relation to the motion, the plaintiff indicates that he regarded the cover letter as “perfunctory”, and suggests that he was upset by its failure to include any discussion of “next steps or timelines, etc”. He also decided that, since he was “going to have to wait another month-and-a-half to hear from the defendant”, he would take the opportunity “to make some minor changes to the Statement of Claim”. The plaintiff had the ability to make such changes unilaterally as of right, prior to the close of pleadings, and provided the defendant with no advance indication of his intentions in that regard.

• On August 20, 2014, the plaintiff filed his Amended Statement of Claim.

• On August 22, 2014, the plaintiff served his Amended Statement of Claim by personally attending at the Kingston office of the defendant’s corporate counsel and lawyer of record, Mr Hickey. There is no evidence to indicate or suggest that the plaintiff took the opportunity to identify himself or request any conversation with Mr Hickey that day, (although the next email suggests that he may have handed his amended pleading to Mr Hickey directly).

• On September 1, 2014, the plaintiff sent Mr Hickey an email which, on its face, responded to Mr Hickey’s email of August 6, 2014, (although it does not refer to Mr Hickey’s earlier email or its attachments). The plaintiff’s email notes that he had attached an electronic copy of the Amended Statement of claim that the plaintiff hand-delivered to Mr Hickey’s office on the afternoon of August 22, 2014, and concluded by asking: “Would you please confirm that it was you to whom I handed the envelope with the Amended Statement of Claim on that day?”

• On September 2, 2014, Mr Hickey responded with a short email saying “We acknowledge receipt of a hand-delivered copy of your amended statement of claim.” It seems there was then no further communication of any kind between the parties until November 13, 2014. In particular, during that time period, the defendant apparently did not communicate any further information whatsoever to the plaintiff about any ongoing efforts on its part to investigate and address the plaintiff’s claim, either by settlement or litigation, and the plaintiff did not communicate anything whatsoever to the defendant or its counsel indicating an intention to initiate default proceedings without further communication or notice.

• On October 3, 2014, the plaintiff filed a Requisition with the court, directing the Local Registrar to note the defendant in default. The plaintiff then began work on preparation of a motion for default judgment.

• On November 11, 2014, Mr Hickey then called and left a voicemail message, asking to speak with the plaintiff.

• On November 13, 2014, the plaintiff returned Mr Hickey’s call. Mr Hickey indicated that he had called to discuss resolution of the claim, including possible publication of an apology or retraction satisfactory to the plaintiff. In the course of that conversation, however, the plaintiff advised Mr Hickey, for the first time, that he had noted the defendant in default on October 3, 2014. In the weeks that followed, Mr Hickey then sought and obtained instructions to bring a motion to set aside the noting in default, if the plaintiff would not agree to the default being set aside on consent.

• On December 3, 2014, Mr Hickey then sent the plaintiff a letter by email. The letter began by following up on the parties’ telephone discussion on November 13, 2014, concerning a possible apology or retraction, and indicated that Mr Hickey had not yet received any correspondence from the plaintiff containing draft wording of an apology or retraction. Mr Hickey asked the plaintiff to provide such a draft at his earliest convenience, if an apology or retraction was still desired. Beyond that, the letter noted the plaintiff’s earlier indication that he had noted the defendant in default, and confirmed that the defendant “was under the impression that [the plaintiff] had granted a waiver of the requirement to deliver a defence”, based on the earlier email correspondence between the plaintiff and Mr Ivers. Noting the defendant’s earlier delivery of its Notice of Intent to Defend, and the instructions provided to Mr Hickey to bring a formal motion to set aside the noting in default if necessary, Mr Hickey asked the plaintiff for confirmation on or before December 8, 2014, that the plaintiff would consent to the late filing of a statement of defence, thereby making such a motion unnecessary, failing which the defendant would bring the motion and seek associated costs on a substantial indemnity basis. The letter nevertheless then ended with a conciliatory indication that Mr Hickey felt the matter “would benefit from early mediation”, and confirmed his willingness “to recommend an early mediation in order to resolve this claim without further delay”.

• On December 9, 2014, the plaintiff responded with a letter to Mr Hickey making clear his indignation. The complete text of the letter reads as follows:

Mr. Hickey:

I am in receipt of your letter dated December 3, 2014.

This is a simple, uncomplicated matter.

Your client has been aware for months that it has no defence on the merits, yet you and your client have refused to cooperate in the resolution of this matter, either by complying with the Rules of Civil Procedure or by entering into settlement negotiations.

You and your client have been, as the record shows, clearly flouting the Rules in an effort to delay resolution of this matter. And, now, you both impugn my character and seek to intimidate me.

Where a defendant refuses to participate in the process, the plaintiff’s only option to move the matter along is to have the defendant noted in default, and then, to seek default judgment, which I shall do.

Your client was noted in default in full compliance with the rules of the court and long after your client was given every opportunity to respond to this matter in good faith.

Your attempt to portray your client as an aggrieved party is both disingenuous and remarkably unpersuasive. The record does not support your contentions.

Any motion that you bring to set aside the noting in default will be opposed. Given the record in this matter, with respect to both your client’s actions, and your inaction, I look forward to you attempting to explain yourself to the motions judge.

Todd Speck

• Defence counsel then prepared its motion record herein, serving it by regular mail on December 12, 2014. Five days later, the defendant then served its factum and book of authorities in the same manner. Described broadly, the defendant’s position is:

o That it always had an intention to defend this matter;

o That the claim against it is substantial and inherently complex;

o That its failure to enter a statement of defence before being noted in default stemmed from a legitimate desire to investigate the matter and obtain instructions, (both made more complicated by the nature of its operations, the passage of time since original publication of the alleged libel, and corresponding insurance issues), as well as a mistaken belief that the plaintiff had waived the requirement of a statement of defence unless and until delivery of a defence was demanded and/or notice of an intention to initiate default procedures was given;

o That, in the circumstances, the plaintiff acted improperly and precipitously in taking default proceedings without giving the defendant or its counsel any notice of his intention in that regard;

o That the defendant has moved promptly to set aside the noting in default after it came to the defendant’s attention; and

o That there is no evidence of any prejudice to the plaintiff that would warrant a denial of the relief requested.

• The plaintiff served his responding motion record, factum and book of authorities by regular mail sent to defence counsel’s post office box on December 31, 2014, after an abortive attempt to deliver the material personally the day before. Described broadly, the plaintiff’s position is:

o That this is an entirely “simple and uncomplicated” libel claim which has always been completely indefensible on the merits, with the quantum of damages to be determined “using a known formula handed down by the Supreme Court”;

o That the defendant has never had any genuine intention to address the plaintiff’s legitimate concerns, including any genuine intention to defend the litigation, but at all times was instead intent on “flouting” the rules, causing deliberate delay, and denying the plaintiff access to justice, “in the hopes of wearing the plaintiff down in the process”;

o That the defendant’s notice of intention to defend, in particular, should be regarded as a complete and irrelevant nullity as it was delivered more than 10 days after service of the original statement of claim;

o That defence counsel has been complicit in such inappropriate efforts, insofar as he allegedly “failed in his professional responsibilities to the court and to the plaintiff”, and “has resorted to attempting to mislead the court on this motion”;

o That the timelines for delivery of a statement of defence have been codified by legislation, in contrast to the concept of giving prior notice to opposing counsel, (as contemplated in such publications as the Rules of Professional Conduct promulgated by the Law Society of Upper Canada, or the Principles of Civility for Advocates published by the Advocates Society);

o That the defendant’s reliance on practical complications associated with its insurance arrangements should be completely disregarded, as doing otherwise effectively would allow the insurance industry and private contracts to dictate the progress of litigation and subvert procedures mandated by legislation;

o That granting the relief requested would run entirely counter to the Supreme Court of Canada’s recent emphasis, in Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87, on timely and affordable justice; and

o That the plaintiff should be entitled to rely on the timelines set forth in the Rules of Civil Procedure, as he has been “straightforward with the defendant from the beginning”, “patient with the defendant”, and has “acted in good faith”.

Law – General Principles

[14] Rules and legal principles applicable to determination of such a motion include the following:

• Rule 18.01(a) of the Rules of Civil Procedure indicates that a statement of defence, responding to service of a statement of claim in Ontario, shall be delivered within 20 days.

• However, Rule 18.02 extends that time by 10 days when the defendant delivers a Notice of Intent to Defend. Moreover, Rule 19.01(5) permits delivery of a statement of defence at any time before being noted in default, and when a plaintiff amends his pleading, Rule 26.05(1) provides that a defendant may “respond” to the amended pleading within the time remaining for a response to the original pleading or within a further 10 days, whichever is the longer period.

• Rule 3.02 also provides the court with a general jurisdiction to order extension of any time prescribed by the rules “on such terms as are just”.

• Rule 19.03(1) confirms that a “noting of default may be set aside by the court on such terms as are just”.

• Pursuant to Rule 1.04(1), all of these rules are to be “liberally construed to secure the just, most expeditious and least expensive determination of every civil proceeding on its merits”.

• The test for setting aside a noting in default should not be the same as that for setting aside a default judgment. In either case, the court has a broad discretion which should take into account the behaviour of the plaintiff and defendant, the length of the defendant’s delay, the reasons for delay, and the complexity and value of the claim involved. Only in extreme situations should the court’s discretion be exercised to require an affidavit as to the merits of the defence, on a motion to set aside a noting in default. Where there has been no undue delay, and a continuing intention to defend, a noting of default should be set aside without the necessity of establishing a defence on the merits. See, for example: Metropolitan Toronto Condominium Corp. No. 706 v. Bardmore Developments Ltd. (1991), 3 O.R. (3d) 279 (C.A.), at paragraphs 18 and 20; and Axton v. Kent (1991), 1991 7196 (ON SC), 2 O.R. (3d) 797 (Div.Ct.).

• Even when a defendant originally has no intent to defend, a noting in default should be set aside where a defendant moves relatively promptly to set aside default, and there is no prejudice to the plaintiff. See Nobosoft Corp. v. No Borders Inc., 2007 ONCA 444, [2007] OJ. No. 2378 (C.A.).

• Motions to extend the time for delivery of pleadings and relieve against defaults are frequently made and are typically granted on an almost routine basis. Usually opposing counsel will consent to such relief as a matter of professional courtesy. Where there is opposition to a motion of this kind, it is usually related to additional terms which are sought as a condition to the indulgence being granted or to issues of costs. It is not in the interests of justice to strike pleadings or grant judgments based solely on technical defaults. Rather, the court will always strive to see that issues between litigants are resolved on their merits whenever that can be done with fairness to the parties. See Nobosoft Corp. v. Nobosoft Corp. v. No Borders, supra, at paragraph 7, and Garten v. Kruk, 2009 58071 (ON SCDC), [2009] O.J. No. 4438 (S.C.J.), at paragraph 16.

Application

[15] In my view, the noting in default in this case clearly must be set aside.

[16] Contrary to the categorical assertions of the plaintiff, (and his quick rejection of any views or suggestions to the contrary), his claim for libel, in relation to defamatory remarks published in different ways, and possibly in a continuous manner over the course of seven or more years, is hardly “simple and uncomplicated”. In that regard:

• Libel actions inherently are more complex than many other causes of action, as they are governed largely by rules of common law developed and refined over the course of several centuries of jurisprudence, involving many specialized refinements and considerations.

• The plaintiff relies on prima facie satisfaction of the three essential elements of a libel that must be proved by a plaintiff, (i.e., defamatory remarks, referring to the plaintiff, that were published), as referenced in authorities such as Grant v. Torstar Corp., [2009] 3 S.C.R. 650, at paragraph 28. However, he apparently is inclined to pay little or no attention to law emphasizing that a plaintiff’s proof of such elements is necessary but not sufficient, and by no means an end of the matter. In particular, a plaintiff’s proof of such elements simply means that “the onus then shifts to the defendant to advance a defence in order to escape liability”, (as emphasized by the Supreme Court of Canada in Grant v. Torstar, supra, at paragraph 29).

• Although the plaintiff dismisses them out of hand, a number of possible defences, (addressed in the submissions of defence counsel), are being considered and contemplated in this case. They include honest comment on a matter of public interest, (as the context of the original publication concerned the qualifications of a candidate for public office), reliance on applicable notice and limitation periods, (having regard to arguments concerning when the plaintiff in this case knew and/or ought to have known of the alleged libel and its publication), and arguments concerning quantification of damages, (as noted below).

• The matter is further complicated by the plaintiff’s reliance upon expressly pleaded “malice”, which is governed by further specialized rules as to meaning, proof and implications in this context, and which, if proven, might not only negate certain defences otherwise available to the defendant, but also provide a basis for aggravated and/or punitive damages, as alleged by the plaintiff.

• As noted above, the monetary relief being sought by the plaintiff is quite substantial, and includes claims for damages totalling $200,000. Whether the plaintiff has sustained such damages, whether any such damages were caused by the alleged libel, (or the specific manner of publication in relation to which the plaintiff is claiming), and whether the circumstances would justify awards of aggravated and/or punitive damages, are among the many further issues that would have to be considered and determined.

[17] This certainly is not a case where the plaintiff’s formal claim has been ignored. To the contrary, there is ample evidence to make it clear that the defendant has always intended to defend the claim if and as necessary, (if a mutually agreeable negotiated solution could not be found), and has manifested that intent throughout its dealings with the plaintiff. In my view, this is the only reasonable inference to be drawn from such developments as:

• The repeated indications from editors of the student newspaper that they were speaking with a lawyer in the days following service of the plaintiff’s formal libel notice;

• Obvious resort to insurance arrangements, and an insurance adjuster for the defendants’ insurers contacting the plaintiff, within hours of the claim having been served;

• That adjuster’s express and repeated requests for an “indulgence” with respect to the filing of a statement of defence “for the time being”, (which obviously is inconsistent with any suggestion that the defendant had decided to not file a defence);

• The same adjuster’s reference to the “need to retain defence counsel” if it turned out that this was a “case for defence”, (i.e., if consideration of settlement and attempts to negotiate an agreement on damages proved unsuccessful);

• Referral of the matter to the defendant’s corporate counsel to take limited measures to protect and preserve the defendant’s formal litigation position, (by the preparation and service of a Notice of Intent to Defend), while insurance matters and settlement possibilities were being examined;

• Service of that Notice of Intent to Defend;

• Subsequent proactive efforts by the defendant’s corporate counsel to contact and speak with the plaintiff; and

• Defence counsel’s subsequent correspondence and bringing of this motion to set aside the noting in default.

[18] This also is not a case where the defendant is guilty of inordinate delay in seeking to have the noting in default set aside, once that default came to its intention. The defendant served its motion material herein approximately 9 weeks after it was noted in default, and just four weeks after it learned that it had been noted in default. This pales in comparison to the “delay” in other cases where the court has granted such relief, such as:

• McNeill Electronics Limited v. American Sensors Electronics Inc., [1996] O.J. No. 3446 (S.C.J.), reversed [1998] O.J. No. 345 (C.A.), where our Court of Appeal reversed the decision of the motions judge refusing an order to set aside default against a defendant whose counsel was advised of the noting in default a week after it happened, but then delayed bringing a motion to set aside that noting in default for more than 3½ months;

• Garten v. Kruk, supra, where the defendant was advised of a noting in default some six months after it happened, and the defendant then apparently delayed its initial motion to set aside that noting in default for a further six months; and

• Palermo v. Toronto, [2010] O.J. No. 5447 (Master), wherein the defendant learned of its having been noted in default more than 9 months after that had happened, and then failed to serve its motion material for a further 3 months.

[19] Given the relatively short lapse of time between the defendant’s relevant failure to file a defence and the noting in default, (as the defendant could have filed a defence as of right within 10 days of the amended statement of claim being served on August 22, 2014), and between the noting in default and the bringing of the defendant’s motion to set that default aside, I also fail to see how granting the relief requested could entail any significant prejudice to the plaintiff apart from having to prove his claim, (as he would have been obliged to do but for the noting in default). In that regard:

• When asked what prejudice he would sustain if the noting in default was set aside, the plaintiff identified no concerns apart from interruption of his work towards preparation of his motion for default judgment;

• No details or evidence were provided by the plaintiff in that regard; and

• A motion for default judgment inherently would have been focused on the presentation of evidence to substantiate the plaintiff’s claims for damages, and any preparatory work done by the plaintiff in that regard therefore will not be “thrown away” insofar as it can be redirected towards the plaintiff’s prosecution of a defended libel action.

[20] Contrary to the repeated assertions and accusations of the plaintiff, I also see nothing whatsoever in the circumstances of this case, or in the evidence before me, to suggest impropriety on the part of the defendant or its counsel. In that regard:

• I accept defence counsel’s submissions that the nature of the defendant, (whose decisions are made by individuals associated with an institution inherently dormant during the summer months, giving rise to corresponding holiday arrangements, when the plaintiff chose to advance his claim), would have complicated and/or delayed the ability of defence counsel to obtain confirmed instructions, regardless of insurance considerations.

• However, I also accept that there were additional complications stemming from the nature of the claim and defendant’s insurance arrangements, as suggested by the remarks in Mr Ivers’ correspondence to the plaintiff. In particular, publication of the alleged libel arguably extended over the course of more than seven years, on an ongoing basis. In such circumstances, the realities of insurance coverage, (including the passage of successive periods of coverage, with possibly different insurers, and the common existence of “occurrence” versus “claims made” policies), makes it entirely unsurprising that the plaintiff’s claim may have triggered the possible involvement of four insurers, all of whom the defendant would have an obligation to contact and consult before responding to the plaintiff’s claim, in order to avoid doing anything that might risk voiding coverage that might otherwise be available.

• Similarly, I have no doubt that, as suggested by Mr Ivers’ correspondence, such insurers would have expected and/or demanded an investigation before any settlement overtures or formal response to the plaintiff’s claim, and that this reasonably would have included inquiries concerning the circumstances surrounding the original article’s writing and publication. (The plaintiff himself acknowledged and indicated, during the course of his submissions, that the manner and extent of pre-publication inquiries carried out by those responsible might be relevant to the availability of a defence of honest comment on a matter of public interest, as well as the quantum of damages to be awarded.) However, it seems reasonably clear that the students responsible for the original libel and its archiving to the student newspaper carried out their relevant actions more than seven years ago, in which case they almost certainly have long since left the university and ended their association with its student newspaper. In the circumstances, carrying out an appropriate investigation, (e.g., by identifying, locating and speaking with those involved), inevitably would have been more challenging than investigations carried out in relation to claims prompted by more recent events.

• I therefore accept the defendant’s explanation as to why it was not in a position to respond quickly with acknowledgments of liability and/or proposals for payment of damages, as desired by the plaintiff.

• Moreover, it seems to me that there is much to explain why and how the defendant’s insurance and legal representatives apparently formed a genuine but mistaken belief that immediate delivery of a formal statement of defence was not required. Such considerations include the following:

o There was little if anything about the statement of claim, or the amended statement of claim, to suggest that the defendant was dealing with a lay person. To the contrary, content and presentation of the pleadings suggest obvious legal training, research and experience.

o I have no doubt that communication with the plaintiff following service of the claim would have reinforced rather than negated that initial impression of legal training and experience, (based on what I have seen of the plaintiff’s correspondence, subsequent court filings, and oral arguments during hearing of the motion).

o In the circumstances, it was hardly surprising that the defendant’s representatives proceeded on the basis they were dealing with a litigation opponent familiar with the realities of insurance coverage and normal file investigation, as well as the routine extension of professional litigation courtesies; courtesies that normally would include the granting of defence waivers for reasonable periods of time, and refraining from default procedures without the provision of advance notice to a defendant’s identified legal counsel.

o When an indefinite indulgence in relation to delivery of the statement of defence had been requested, and did not meet with any kind of express refusal or notice of the plaintiff’s intention to initiate default proceedings, the defendant’s representatives therefore understandably (but mistakenly) thought that should be construed as an implicit confirmation that such an indulgence had been extended.

[21] The defendant may not have responded as quickly, or kept in touch as frequently, as the plaintiff may have wanted. Time estimates provided by the defendant’s insurance adjuster in that regard also may have been overly optimistic. However, this does not amount to impropriety or deliberate efforts to obfuscate, deceive and delay, as suggested by the plaintiff.

[22] Such allegations underscore the vast difference between the defendant’s perspective and that of the plaintiff.

[23] Again, the defendant’s representatives seem to have approached the matter as if they were dealing with dispassionate counsel, conversant with the realities of insurance, claim investigation, and professional courtesies.

[24] However, the plaintiff has viewed everything through the lens of a passionate and personally invested litigant, who clearly was upset and angered by the original article, and by the defendant’s failure to provide the urgent, complete and substantial redress to which he feels entitled.

[25] In the result, the plaintiff has been inclined to attribute the worst possible motives to any statements, actions or inaction by the defendant’s representatives; e.g., construing reasonable explanations as baseless excuses, requests for reasonable co-operation as a strategy to “wear down” the plaintiff, and the failure to deliver a defence within the period contemplated by the Rules of Civil Procedure as a deliberate “flouting” of those rules.

[26] Moreover, subsequent developments, including the written and oral arguments advanced by the plaintiff, have made it woefully clear that he lacks experience with standard practices, (thereby construing entirely normal, common and expected delays as deliberate obstruction of justice), as well as familiarity with professional courtesies.

[27] The latter reality was underscored by the plaintiff’s repeated allegations of deliberate and extremely serious professional misconduct by defence counsel, which in my view were entirely cavalier and baseless.

[28] It also was emphasized by the plaintiff’s admitted familiarity with the Law Society’s Rules of Professional Conduct and the Advocate Society’s Principles of Civility, (portions of which were filed by the plaintiff rather than the defendant), and his reliance on both to suggest fault with defence counsel, while simultaneously rejecting all suggestions that the plaintiff himself should have followed their required and/or recommended practice of providing known defence counsel with advance warning and notice of his intention to initiate default proceedings.

[29] In that regard, I note the following:

• Under the heading “Responsibility to Lawyers and Others”, Rule 7.2 (1.1) of the Rules of Professional Conduct provides in part that “A lawyer shall agree to reasonable requests concerning … the waiver of procedural formalities”, and Rule 2.2 provides that “A lawyer shall avoid sharp practice and shall not take advantage of or act without fair warning upon slips, irregularities or mistakes on the part of the other.”

• Under the heading “Relations with Opposing Counsel”, (and the sub-heading “Conduct that Undermines Co-operation among Advocates”), Principle 17 provides in part that “Subject to the Rules of Practice, advocates should not cause any default … to be entered without first notifying opposing counsel, assuming the identity of opposing counsel is known”.

• In relation to motions to set aside default proceedings, the authorities similarly have faulted plaintiff counsel for failing to advise a defendant’s known counsel, either verbally or in writing, of an intention to note a defendant in default for failure to file a statement of defence. See, for example: Xpress View Inc. v. Daco Manufacturing Ltd., [2002] O.J. No. 4078 (S.C.J.), and Garten v. Kruk, supra.

[30] In the circumstances of this case, I am not content to let the plaintiff use such known ethical principles as a single-edged sword, with no application to the plaintiff, simply because he has not yet been admitted to the bar.

[31] Although the plaintiff may have been frustrated by the perceived lack of progress towards resolution, (which did not conform with Mr Ivers’ earlier time estimates), and by the apparent lapse in frequent communication and updates from the defendant’s representatives, he should not have initiated default proceedings without advising the defendant’s known counsel of the plaintiff’s intentions.

[32] Having regard to all of the above considerations, I believe it would be neither just nor appropriate to deny the relief requested, thereby precluding a resolution of this dispute on its merits.

[33] In particular, allowing the default to stand might result in the plaintiff having a more “timely” result, with less expense from his perspective, but allowing him to proceed in that manner, without permitting the defendant to be heard, would hardly be just in the circumstances.

[34] In the result, an order will go setting aside the noting in default, and granting the defendant leave to file a statement of defence within thirty (30) days of the release of this endorsement.

Costs

[35] Because this matter had to be reserved, owing to time constraints, I asked the plaintiff and defence counsel to make cost submissions having regard to the alternative outcomes of plaintiff or defendant success on the motion.

[36] In that regard, each side tendered a cost outline.

[37] In particular, the defendant requested total costs of $6,262.50, (on a partial indemnity basis, in relation to actual costs said to total $7,455.00).

[38] The plaintiff sought costs of $7,487.10, (claiming to have spent 80 hours of preparation in relation to the motion, and employing a notional partial indemnity hourly rate of $90 for that work, in addition to his disbursements of $287.10). In that regard, the plaintiff relied in particular on the Court of Appeal’s observations, in Fong v. Chan, 1999 2052 (ON CA), [1999] O.J. No. 4600 (C.A.), at paragraphs 25-26, that there is no rule precluding recovery of costs in whole or in part by self-represented litigants for loss of time spent devoting efforts to their own cause, (although the Court of Appeal also emphasized that there is no automatic entitlement to such cases, which remain entirely within the discretion of the court).

[39] In my view, each side’s claim for costs is excessive, having regard to all the various factors set forth in Rule 57.01, and the “overriding principle of reasonableness” for such motions as applied to the factual matrix of the case, pursuant to the ultimate “cross check” required by such authorities as Boucher, Moon and Coldmatic Refrigeration of Canada Ltd. v. Leveltek Processing LLC (2005), 2005 1042 (ON CA), 75 O.R. (3d) 638 (C.A.), and Anderson v. St. Jude Medical Inc. (2006), 2006 85158 (ON SCDC), 264 D.L.R. (4^th) 557 (Ont.Div.Ct.).

[40] Without limiting the generality of the foregoing, I have particular regard to the fact that both sides proceeded on the basis that this was a motion of a nature and complexity that made it entirely amenable to complete argument within the 20-30 minutes allotted to matters returnable in the regular motions court, held here in London each Tuesday. By their mutual conduct, both sides therefore inherently represented to the court that the matter was relatively simple and straightforward, which in turn should have limited the resources devoted to it.

[41] In any event, I regard this is a case where justice would be done by requiring each side to bear its own costs of the motion.

[42] For the reasons set out above, the plaintiff should not have initiated default procedures without notifying the defendant and its counsel of his intentions in that regard, and correspondingly should have agreed to belated delivery of a statement of defence. Considerable time and expense has been wasted on both sides because of those failings. The plaintiff’s allegations of serious professional misconduct by defence counsel were also quite inappropriate.

[43] However, I also am mindful of the fact that the defendant seeks an indulgence to remedy a situation which, in my view, also could have been avoided had the defendant paid sufficient attention to the reality that it was dealing with a lay litigant, and to the fact that it allowed a lapse in communication, (at variance with its expressed hopes and intentions in terms of progress and keeping the plaintiff informed), that might reasonably have been expected to foster impatience and distrust in a plaintiff who had expressly confirmed his desire for a swift resolution. In the circumstances, I am not inclined to simply have costs follow the event.

[44] On balance, I think justice will be done in this particular case by exercising my discretion so as to order no costs of the motion to either side.

“Justice I. F. Leach”

Justice I F. Leach

Date: January 12, 2015