Court File and Parties

COURT FILE NO.: 07-CV-342643PD3 DATE: 2017-03-28 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Thomas Cordeiro, Jose Cordeiro, Marion Wright and Kelly Uprichard, Plaintiffs AND: A.P., Nadeem Suleman Muhammad and The Wawanesa Mutual Insurance Company, Defendants

BEFORE: Justice Edward P. Belobaba

COUNSEL: A.P. in person / Moving Party Adrian Serpa for The Wawanesa Mutual Insurance Company / Responding Party

HEARD: March 17, 2017

Motion to set aside default judgment

[1] Self-represented defendant A.P. moves to set aside a default judgment in the amount of $495,000 granted by Sanderson J. on June 30, 2015.

[2] The judgment arises out of an accident that occurred in 2005 when Mr. A.P. was 16 years old and in high school. Mr. A.P. was driving a stolen vehicle at a high speed across a mall parking lot. He admits he was “showing off” for his friends. He lost control of the automobile and struck and seriously injured a pedestrian.

[3] Mr. A.P. says the default judgement should be set aside for two reasons: he was never served with the statement of claim in this matter and only recently became aware of the default judgment against him; and he “can’t pay” the amount of the judgment.

[4] At the conclusion of the hearing on March 17, 2017 I advised the parties that the motion to set aside the default judgment is dismissed for written reasons that would follow shortly. These are the reasons.

Background

[5] The accident occurred on November 22, 2005. Mr. A.P. was 16 years old. He was driving a stolen car and wanted to “show off” for his friends that had gathered at a Bramalea shopping mall. He drove the car at a high speed across the parking lot, lost control and struck and seriously injured one of the friends that was watching, the plaintiff Thomas Cordeiro.

[6] Mr. A.P. fled the scene but was arrested by police at his high school the next day and charged with numerous offences. He pleaded guilty to ‘dangerous operation of a motor vehicle causing bodily harm’ and was sentenced to one month in a juvenile detention facility.

[7] The plaintiff and his family issued their statement of claim in 2007. The named defendants included Mr. A.P. and the Wawanesa Mutual Insurance Company. Mr. A.P. failed to file a statement of defence and was noted in default on April 17, 2008.

[8] At the time of the accident, Mr. A.P. was an uninsured driver. The injured plaintiff was covered under Wawanesa’s uninsured motorist endorsement. Wawanesa defended the action and eventually settled the plaintiffs’ claims at a pre-trial before Wilkins J, for $425,000 plus $50,000 in legal fees and $20,000 in disbursements for a total of $495,000.

[9] Under the terms of the settlement, the plaintiffs assigned their claims causes of action against Mr. A.P. to Wawanesa so that the insurer could pursue its right of subrogation under section 265 of the Insurance Act. Following an uncontested trial on damages, Sanderson J. granted default judgment on June 30, 2015 as against Mr. A.P. in the full amount of the settlement. Because the judgment remained unpaid, Mr. A.P.’s driver’s license was suspended indefinitely by the Ministry of Transportation in June, 2016 under section 198 (1) of the Highway Traffic Act.

[10] Mr. A.P. says it was only because of the licence suspension in June, 2016 that he became aware of the default judgment. He says he was never served with the statement of claim and asks that the default judgment be set aside and that the matter continue on to trial.

The applicable law

[11] There is no dispute about the applicable law. In deciding whether a default judgment should be set aside under Rule 19.08 the court is required to consider the following: whether the motion was brought promptly after the defendant learned of the default judgment; whether there is a plausible excuse or explanation for the defendant’s default or delay in complying with the Rules; and whether the facts establish that the defendant has an arguable defence on the merits. Watkins v Sosnowski, 2012 ONSC 3836, at para. 19. The Court of Appeal has made clear that, “The court’s ultimate task on a motion to set aside a default judgment is to determine whether the interests of justice favour granting the order.” Mountain View Farms Ltd. v. McQueen, 2014 ONCA 194, at para. 47.

Analysis

[12] On the uncontroverted evidence before me, Mr. A.P. has failed to satisfy any of the three factors just noted.

[13] The motion to set aside was not brought promptly. Mr. A.P. admits that he was aware of the default judgment for at least seven months before he filed the motion to set aside.

[14] The evidence in the record does not support Mr. A.P.’s assertion that he was never served with the statement of claim. I find it more likely than not that Mr. A.P. was served with the statement of claim on March 13, 2008 by prepaid registered mail at 6 Kimberley Crescent, Brampton (which is where he was residing with his mother at the time) in accordance with the Order of Master Abram dated March 11, 2008. I further find that Mr. A.P. was served with the statement of claim a second time on November 29, 2008 when he was served personally with an application record for access to his Youth Court records relating to the accident and criminal conviction. A copy of the statement of claim was attached as an exhibit to the affidavit that supported that application. I therefore find no basis for Mr. A.P.’s assertion that he was never served with the statement of claim.

[15] In any event, and most importantly, Mr. A.P. has not shown that he has an arguable case on the merits. Indeed, he has provided no evidence that would even suggest the possibility of such a defence. Given the circumstances of the 2005 accident, it would be difficult, if not impossible to advance an arguable defence on the merits.

[16] Mr. A.P. was an uninsured driver. He stole a vehicle and drove it at high speed across a parking lot where his friends were standing and were watching. He admitted that he was “showing off” and that he was driving recklessly. He lost control of the vehicle and struck and seriously injured one of his friends. Mr. A.P. pleaded guilty to a criminal offence and served time in a juvenile facility. At his December 29, 2016 cross examination, Mr. A.P. testified that he has no reason to believe that the settlement between Wawanesa and the plaintiffs was unreasonable and further that he has no defence in relation to the amount of general or pecuniary damages that were awarded. The fact that he “can’t pay” the judgment is not a relevant consideration.

[17] In sum, Mr. A.P. has not shown that he has an arguable defence on the merits and that the default judgment should be set aside in the interests of justice. I am satisfied that Justice Sanderson carefully considered the evidence in support of the statement of claim and appropriately granted judgment against Mr. A.P.. The court’s default judgment was fair and just and there is no good reason to set it aside.

Disposition

[18] The motion to set aside the default judgment is dismissed.

[19] Wawanesa asks for $3178 in costs on a partial indemnity basis. Mr. A.P. suggests that $500 would be more reasonable. I note that the insurer’s disbursements alone were over $700. In my view, it is fair and reasonable to fix costs at $2750, payable forthwith by Mr. A.P..

[20] Wawanesa may send the draft Order directly to me for signature.

Belobaba J. Date: March 28, 2017