Borja et al v Robichaud Ltd., 2016 ONSC 4195

Court File and Parties

COURT FILE NO.: DC-0894-00 DATE: 20160623

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

SUSAN VICTORIA DAUVIN-BORJA, MICHAEL K. BORJA Plaintiffs – and – D.M. ROBICHAUD LTD. Defendant

Counsel: Self-represented, for the Plaintiffs Kevin Eng, for the Defendant

HEARD: June 22, 2016

REASONS FOR DECISION

CHARNEY J.:

Introduction

1This motion is brought by Susan Victoria Borja and Michael Borja seeking to “withdraw” [set aside] the Judgment of the Barrie Small Claims Court dated March 26, 2015 against Susan Borja and Michael Borja and to reinstate the driver’s licence of Michael Borja.

2The case arises from a motor vehicle accident on January 20, 2012. Susan Borja was operating a vehicle owned by Michael Borja. The accident occurred when the vehicle operated by Susan Borja struck a vehicle owned by D.M. Robichaud Ltd. (DMR). Michael Borja was not insured by an automobile insurance policy on the date of the motor vehicle accident.

3On October 25, 2013, DMR commenced an action against Susan and Michael Borja in Barrie Small Claims Court seeking $16,0148 for the costs of towing and repairing the vehicle owned by DMR.

4According to affidavits of service, the Plaintiff’s Claim was served personally on Susan Borja at 1378 Sheldon Street, Innisfil, Ontario and on Michael Borja by leaving a copy of the Plaintiff’s Claim with Susan Borja at the same address and mailing a copy of the claim to that address.

5The Borjas allege that they had already been evicted from that address and that they were never served with the Plaintiff’s Claim.

6The Borjas failed to defend the claim and they were noted in default. A Certificate of Judgment in the amount of $13,188.74 was issued by the Barrie Small Claims Court on March 26, 2015.

7On April 23, 2015 the Ministry of Transportation wrote to Susan Borja and Michael Borja to advise them that the Ministry had received a judgment filed against them concerning a motor vehicle accident, and instructing them to contact DMR's solicitor to arrange payment. The letter indicated that if arrangements for payment were not made within 15 days “your licence will be suspended”. Susan and Michael Borja allege that they did not receive this letter.

8On June 12, 2015, DMR's solicitors advised the Ministry of Transportation that they had not heard from either Mr. or Mrs. Borja and requested that their driver’s licences be suspended. On July 21, 2015, the Ministry advised DMR's solicitor that Michael Borja’s driver’s licence had been suspended.

9On November 27, 2015, Susan Borja telephoned DMR's solicitor Kevin Eng and advised him that Michael Borja’s vehicle had been impounded as a result of the outstanding judgment from the Barrie Small Claims Court. Susan Borja proposed that Mr. Eng contact the Ministry to reinstate Michael Borja’s driver’s licence and proposed a payment plan to satisfy the outstanding judgment. Mr. Eng responded on November 30, 2015 with a different proposed payment plan.

10On November 30, 2015, Susan Borja filed a motion with the Superior Court for an order extending the time to appeal the Barrie Small Claims Court judgment on the ground that neither she nor Michael Borja were served with the plaintiff’s claim. The motion also asked that Michael Borja’s driver’s licence be reinstated pending the appeal. The motion proceeded as an urgent motion on December 8, 2016.

11As an aside, this was not the correct process to challenge the default judgment of the Barrie Small Claims Court. Rule 11.06 of the Rules of the Small Claims Court permits the Small Claims Court, on motion by the party against whom the judgment was made, to set aside a default judgment “and any step that has been taken to enforce the judgment” if “the court is satisfied that the party has a meritorious defence and a reasonable explanation for the default” and “the motion is made as soon as reasonably possible in all the circumstances”.

12The Borjas should have proceeded under Rule 11.06 rather than bringing a motion to the Superior Court. Litigants should not circumvent the Rules of the Small Claims Court and try to obtain relief prematurely in the Superior Court.

13If the defendant’s allegation is true and they were not properly served (a matter over which I express no opinion) this would constitute proper grounds to set aside the default judgment (20369 Ontario Inc. v. Kreuzer, at para. 11).

14It appears that the Borjas did not understand the procedural rules and instead brought a motion in Superior Court to extend the time to appeal the decision of the Small Claim Court.

15Be that as it may, the Borjas agreed to settle their December 8, 2015 motion on the following terms: The motion is dismissed, without costs, on terms laid out in the Minutes of Settlement as follows:

1. The DMR shall ask the Ministry of Transportation to lift the suspension of Mr. Borja’s driver’s licence by December 11, 2015.
2. The Borjas shall pay to DMR $800.00 on December 15, 2015 in partial satisfaction of the $13,662.67 judgment.
3. The Borjas shall pay to DMR $400.00 on the 8th day of every month commencing on January 8, 2015, until the judgment is completely satisfied.
4. The Borjas shall respond to DMR's inquiries with respect to the status of the efforts to obtain the inheritance funds resulting from the death of Ms. Borja’s mother.
5. The Borjas shall immediately advise the DMR upon their receipt of inheritance funds resulting from the death of Ms. Borja’s mother.
6. Within 15 days of the Borjas’ receipt of the inheritance funds resulting from the death of Ms. Borja’s mother, the Borjas shall pay to DMR the entire balance outstanding on the Judgment.
7. In the event that the Borjas fail to comply with the terms of these Minutes of Settlement, DMR shall be permitted to write the Ministry of Transportation and request that both Borjas’ driver’s licences be suspended.

16These minutes of settlement were signed by both Susan Borja and Michael Borja, and became part of the court order of December 8, 2015.

17At this point the judgment of the Barrie Small Claims Court is really beside the point. The Borjas are now subject to an order of the Ontario Superior Court issued on consent. Even if the judgment of the Small Claims Court were set aside, the Borjas would still be subject to the December 8, 2015 order of the Superior Court. The Small Claims Court has no jurisdiction to reverse or set aside the Superior Court order.

18The Borjas have not moved under Rule 59.06(2) of the Rules of Civil Procedure to set aside or suspend the court order of December 8, 2015, nor have they sought to leave to appeal that order (pursuant to s. 133(a) of the Courts of Justice Act, R.S.O. 1990, c. C-43, all orders made on the consent of the parties require leave of the court to which the appeal is to be taken).

Failure to Comply with the December 8, 2015 Court Order

19The Borjas claim that DMR and its solicitor Mr. Eng asked the Ministry of Transportation to suspend Michael Borja’s driver’s licence contrary to the December 8, 2015 court order. A review of the evidence indicates that it is the Borjas who have failed to comply with the terms of the December 8, 2015 order, and DMR has acted within its rights under that order.

20The Borjas did provide DMR with the first payment of $800.00 on January 6, 2016, and Michael Borja’s licence was reinstated pursuant to the agreement and order. That was the first and last payment that DMR received from the Borjas.

21A review of the correspondence between the Borjas and Mr. Eng indicates that Mr. Eng gave the Borjas numerous opportunities to comply with the terms of the order, but the Borjas have used those opportunities to string him along and avoid making payments. They have made promise after promise and offered excuse after excuse. After six months of misleading promises and excuses Mr. Eng and DMR proceeded to enforce the December 8, 2015 order in accordance with its terms.

22For example, the Borjas missed the first $400 payment on January 8, 2016. On February 2, 2016, Susan Borja wrote to Mr. Eng stating “Hello I am so sorry we were robbed then I went in for emergency surgery I just came home can I please send you double payment this Friday February 5, 2016 then back on track for regular payments please let me know”. Mr. Eng agreed to accept the double payment and then revert back to original payment. No payment was ever made.

23On March 14, 2016, Mr. Eng wrote to the Ministry of Transportation to advise them that the Borjas had failed to comply with the payment plan set out in the December 8, 2015 order and asked them to suspend Michael Borja’s and Susan Borja’s driver’s licences. This was in keeping with para. 7 of the Minutes of Settlement that permitted DMR to write the Ministry of Transportation and request that both Borjas’ driver’s licences be suspended in the event that the Borjas failed to comply with the terms of the Minutes of Settlement.

24The Ministry of Transportation wrote to Mr. Borja on March 14, 2016, to advise him that if he did not pay the judgment within 15 days his licence would be suspended.

25Mr. Eng wrote to Michael Borja on March 30th to advise that he was taking steps to have Borja’s driver’s licence suspended in the event that the outstanding judgment was not satisfied. Susan Borja wrote to Mr. Eng the next day asking if she could have until April 6, 2016 to “pay all back owing”. Mr. Eng wrote back on April 1, 2016, advising that he would wait until April 7, 2016 for the payment before asking that Mr. Borja’s licence be suspended.

26On April 6, 2016, Ms. Borja wrote to Mr. Eng to advise him that she would get her inheritance on April 28, 2016 and asked that Mr. Eng wait until then. She indicated that she could not make any of the $400 monthly payments until she received her inheritance.

27Mr. Eng responded on April 6, 2016, advising that his client would give the Borjas an extension until May 2, 2016 to pay the balance of the outstanding judgment.

28On May 3, 2016 Ms. Borja wrote to Mr. Eng to advise that “the bank has a 5 to 10 day hold until the cheque from the lawyer clears nothing I can do”.

29On May 4, 2016, Mr. Eng provided another extension stating “Thank you for keeping us apprised. Please advise when we may expect the funds.” Ms. Borja advised by reply email: “The bank said 5 to 10 business days so between next Monday and a week Friday last delay.”

30The payments were still not made, and Mr. Eng advised the Ministry of Transportation which suspended Michael Borja’s driver’s licence under s.198(1) of the Highway Traffic Act on June 14, 2016.

Conclusion

31Given the consent order of December 8, 2015, the Borjas’ motion to “withdraw” or set aside the judgment of the Barrie Small Claims Court dated March 26, 2015, against Susan Borja and Michael Borja and to reinstate the driver’s licence of Michael Borja constitutes an abuse of process. The Borjas agreed to the dismissal of their December 8, 2015 motion. They cannot attempt to bring what is essentially the same motion again.

32Based on a review of the evidence I am satisfied that it is the Borjas who have violated the terms of the December 8, 2015 order, and that DMR was acting in accordance with the terms of that consent order when it sought to suspend Michael Borja’s driver’s licence under s.198(1) of the Highway Traffic Act.

33The motion is dismissed.

34DMR seeks its costs for this motion. The motion material was filed by the Borjas as an urgent motion the day before the hearing. There was no affidavit of service. The trial office telephoned Mr. Eng the morning of the hearing (June 22, 2016) to ask if he had been served. He indicated that he had not been served. Ms. Borja claims that she served him by email. In any event, Mr. Eng was able to attend court for a 2:15 p.m. hearing, and put together a record for the hearing. I agree that DMR is entitled to costs for having to respond on such short notice to a motion that I concluded is an abuse of process. Costs of this motion are payable by Susan Borja and Michael Borja to DMR in the amount of $750.00 payable forthwith.