Court File and Parties

COURT FILE NO.: CV-03-CV251764 DATE: 20170425 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Hakim Optical Co. Limited AND: Helen Phillips

BEFORE: Carole J. Brown, J.

COUNSEL: Michael Title, for the Plaintiffs David Woodfield, for the defendants

HEARD: April 4, 2017

Endorsement

[1] The plaintiff moves for an Order for payment out of the monies paid into court by the defendant, now deceased, pursuant to the Order of Master MacLeod dated October 24, 2005 with interest accrued to date pursuant to Rule 72.03(1) and (2) of the Rules of Civil Procedure; a finding of dilatory conduct on the part of the defendant amounting to an abuse of process; an Order that the defendant is in breach of the Order of Master MacLeod dated October 24, 2005; that the default judgment stands and that the costs and interest awarded as well as the costs Order of October 24, 2005 our exigible from the funds paid into court and should be payable to the plaintiff.

[2] The plaintiff’s statement of claim, issued July 4, 2003, was for various relief as regards a lease of commercial premises. The property has now been sold.

[3] Master MacLeod made an Order dated June 21, 2005 for various relief in favour of the plaintiff which effectively disposed of the action in its entirety, and an Order for costs in the amount of $13,545.87. The Master also struck the statement of defence and counterclaim as well as the affidavit of Jean Geleff, rectified the lease and dismissed the defendant’s motion. The defendant appeared before the Master on October 24, 2005 to request an opportunity to vary or set aside the Order of Master MacLeod of June 21, 2005. The Master further ordered that the costs of $13,545.87 be paid into court and set the motion to vary returnable January 20, 2006, for one day. Costs were fixed at $2,000 payable by the defendant to the plaintiff in the cause of the main action. The motion was subsequently adjourned to March 31, 2006, but was never heard.

[4] Master MacLeod ordered that the parties proceed to argue the questions of notice and/or fraud on the court, and the balance of the motion was made returnable March 31, 2006. In the interim, a timeline was set, including that the parties were to proceed to examinations for discovery February 20, 2006. The return of the motion scheduled for March 31, 2006 never occurred and the original Order of June 21, 2005, as entered, stands.

[5] Since July 14, 2010, five different counsel have represented the defendant, four of whom were formally on the record. In August 2012, one lawyer, Ed Huitin, attempted to negotiate a settlement on behalf of the defendant. While a settlement was reached, prior to concluding the formal documentation, Mr. Huitin advised counsel for the plaintiff that he was no longer retained to represent the defendant. A motion to enforce settlement was scheduled to be heard May 3, 2013 and Master Glustein (as he then was) ordered that all defendant’s materials be filed by January 31, 2013 for the scheduled hearing. The motion was not heard due to administrative error and was never brought back for hearing. The defendant never complied with the Order of Master Glustein.

[6] Although the defendant died on April 21, 2010, and her daughter, Ms. Jean Geleff, purportedly represented her thereafter, no Order to Continue was filed, no estate representative appointed and no further actions were taken as regards the motion to vary or set aside.

[7] To date, the plaintiff has experienced inordinate delay and seeks the relief as set forth above and in its notice of motion.

[8] In response to this motion, the defendant has filed an affidavit sworn by Ms. Elizabeth Geleff, the granddaughter of the defendant, who has no authority to represent the defendant. No formal documentation has been filed with the court in this regard.

[9] Ms. Geleff who, before this Court, has no standing vis-à-vis the defendant, states that, at the time of the June 21, 2005 Order of Master MacLeod, the defendant had not been served with the motion. Further, she states that the Master never granted judgment for the plaintiff.

[10] Based on the documentation provided by the plaintiff in this matter, Master MacLeod’s Order indicates that the plaintiff was properly served contrary to Ms. Geleff’s statement and there is no evidence to suggest otherwise. The Order clearly held that the lease was rectified, the statement of defence and counterclaim were struck, as was the affidavit of Jean Geleff and the defendant’s motion was dismissed. The court further held that the plaintiff had renewed the lease for five years commencing December 1, 2005, and ordered costs payable by the defendant in the amount of $13,545.87, which were subsequently ordered payable into court on October 24, 2005. In that endorsement, the Master stated that “the plaintiff should not continue to enforce the cost award until all of this can be straightened out” meaning, in my view, the motion setting aside the default judgment.

[11] Ms. Geleff in her affidavit, states that the plaintiff has failed to take any steps to straighten things out as ordered by the Master. In my view, the onus was not placed on the plaintiff to straighten things out, but was on the defendant as regards steps to vary or set aside the Order. In the end, the motion to vary or set aside the Order of Master MacLeod granting default judgment was never brought back for hearing by the defendant.

[12] The matter has dragged on for over 10 years. The administrative dismissal of the action on January 4, 2012 was made after the plaintiff had obtained default judgment, which was never set aside or varied by the defendant. The Order of Master MacLeod effectively disposed of the action.

[13] The defendant seeks to have the matter adjourned until the action is regularized as regards the defendant, who is now deceased, including obtaining an Order to Continue and appointing a Litigation Guardian. The defendant’s daughter and granddaughter wish to contest payment out to the plaintiff of the costs held in court on the basis that the original motion of 2005 was improperly served on the defendant.

[14] The original Order of Master MacLeod was made 12 years ago. A motion brought by the defendant to vary or set aside the motion was brought 12 years ago, but never heard and the defendant failed to take steps to bring that motion back. I am not prepared, at this juncture, after such a long delay, to grant an adjournment of the payment out of the costs paid into court in 2005, in order to regularize the action so that the defendant can now contest service of the original motion.

[15] I am satisfied that the defendant’s request for an adjournment in the circumstances of this case, in order to argue the propriety of service effected in 2005, and to contest the payment out of court of the monies ordered to be paid into court by the defendant following the effective disposal of the action in its entirety, should not be granted. That argument as regards service could have been, but was not, argued or pursued in a motion to set aside or vary the Master’s Order, as set forth above. Indeed, in that Order, the Master noted that proper service had been effected on the defendant.

[16] I exercise this Court’s discretion pursuant to Rule 9.03(6) of the Rules of Civil Procedure, to make such Order as is just in the circumstances of this case and take into account, as well, Rule 1.04. In the event necessary, as regards an Order to Continue, in order to finally permit payment out of monies paid into court in 2005, I make the appropriate order to permit payment out despite the defendant’s failure to obtain a formal Order to Continue.

[17] I am satisfied that given the inordinate delay of the defendant to take any further steps to set aside the default judgment, after given ample opportunity to do so, the default judgment granted by the Master on June 21, 2005 stands. I am satisfied that the $13,545.87 paid into court by the plaintiff as costs with respect to the motion heard and disposed of by Master MacLeod on June 21, 2005 is to be paid out to the plaintiff, along with the outstanding costs of $2,000 ordered by Master MacLeod on October 24, 2005 and the costs thrown away of $1,000 ordered to be paid on February 27, 2017 by Akbarali J., as well as the costs of today’s motion.

Costs

[18] I would urge the parties to agree upon costs, failing which I would invite the parties to provide any costs submissions in writing, to be limited to three pages, including the costs outline. The submissions may be forwarded to my attention, through Judges’ Administration at 361 University Avenue, within thirty days of the release of this Endorsement.

Carole J. Brown, J. Date: April 25, 2017