Court File and Parties
Court File No.: CV-16-554087 Date: 2018-10-19 Ontario Superior Court of Justice
Between: Harald Themer and Estelle Montpellier, Plaintiffs – and – Joseph Posie and Paula Posie, Defendants
Counsel: Albert G. Formosa, for the Plaintiffs Defendants Self-represented
Heard: September 25, 2018
Reasons for Decision
Carole J. Brown, J.
[1] The defendants, Joseph Posie and Paula Posie, bring this motion pursuant to Rule 19.08 to set aside the default judgment of this Court dated January 16, 2018 which granted injunctive relief, damages and costs in favour of the plaintiffs. They further seek the return of their motor vehicle seized by the plaintiffs.
[2] It is the position of the defendants that they brought this motion promptly after they learned of the judgment against them, have a plausible explanation for the default and have an arguable defence on the merits. They maintain that after their vehicle, a truck, was seized by the sheriff, this led them to investigate and learn that there was a default judgment against them. While they had been served with the statement of claim, and admitted that they had read it, they stated that they did not understand it or the import of it. They went to several lawyers, all of whom wanted significant retainers, which they could not afford, as they are both on pensions. The defendants have respectively a grade 8 and grade 9 education and are unsophisticated. They submit that they have a good defence on the merits.
[3] It is the position of the plaintiffs, Harald Themer and Estelle Montpellier, that the defendants were or should have been aware of the proceedings against them and chose to do nothing to defend themselves. The plaintiffs maintain that the defendants do not have a defence, nor any response to their complaints which has an air of reality.
The Facts
[4] The parties are neighbours, living in Byng Inlet, Ontario. The plaintiffs had purchased their property in 2000, but did not live there until 2008. The defendants purchased their property in 2005. The property had been previously owned by Mr. Posie’s father.
[5] After the plaintiffs moved into their property in 2008, they began to complain about the defendants, and particularly:
- The defendants’ use and blocking of the laneway;
- The wood smoke coming from the defendants’ chimney; and
- Water that was being pumped from the defendants’ basement which they alleged flowed onto their property and was contaminated.
[6] The properties each have a right-of-way over the laneway leading to each of their houses. The entire road is 20 feet wide and the travelled portion of the laneway is 9 feet wide. There is a fence on the defendants’ property which extends onto the right-of-way, but does not interfere with the travelled portion of the road. The fence has been in place for a period longer than the plaintiffs have owned their property. It appears that Mr. Themer pays for the snow removal on the laneway in the winter. He states that on three occasions, when there was 6 to 8 inches of snow on the laneway, he slid off the travelled portion of the laneway and struck the fence with his vehicle. He further states that the laneway has been blocked on several occasions by vehicles parked in front of the defendants’ property.
[7] As regards the wood smoke coming from the defendants’ chimney, the defendants state that it interferes with their use and enjoyment of their property at certain times in the summer, and causes Mr. Themer to use an over-the-counter eye drop for irritation.
[8] As regards the water being pumped from the basement of the defendants’ house, the defendants state that there is runoff into their basement which must be pumped out and that, due to work done on the plaintiffs’ property which may have altered or affected the elevation differentials, the water has run onto their property. The plaintiffs maintain that the water runoff is not due to work done on their property and is contaminated.
[9] The above-mentioned disputes were not resolved and the plaintiffs commenced a statement of claim on June 3, 2016 seeking an injunction prohibiting the defendants from committing the nuisances and punitive damages in the amount of $50,000.
[10] On June 11, 2016, the Posies were each personally served with the statement of claim. Mr. Posie states that he read or tried to read the statement of claim but did not understand it. He went to their real estate lawyer, who was unable to assist them because he had a conflict of interest. They thereafter went to several other lawyers for assistance but were told that they would have to pay a substantial retainer. Mr. Posie testified in cross-examination on his affidavit that he and his wife are pensioners and did not have money to retain a lawyer. As a result, they attempted to respond to the statement of claim by handwriting responses to the allegations, noting in the margins of the statement of claim “agree”, “deny” and “no knowledge”, as appropriate. They sent this to the courthouse and heard nothing further.
[11] The defendants did not file a statement of defence, and as a result, they were noted in default.
[12] On December 1, 2017, after the defendants were noted in default, the plaintiffs amended their statement of claim to add relief for general damages in the amount of $50,000 and special damages in the amount of $8460.38. On December 4, 2017, the defendants were each personally served with the amended statement of claim. They again sought legal advice but did not have sufficient funds to retain counsel. They applied for legal aid but were denied.
[13] The defendants did not serve a statement of defence or an amended statement of defence. They did not correspond with the plaintiffs or the plaintiffs’ counsel.
[14] The plaintiffs brought a motion for default judgment and on December 22, 2017, the Posies were served with the motion materials, including motion records, factum and book of authorities. Mr. Posie testified in cross-examination that he did not understand the materials that were served on him and did not know what to do with them. He did not understand that he had to be in court. The motion for default judgment was brought, and on January 16, 2018, this Court granted the motion for default judgment.
[15] The plaintiffs began enforcement proceedings shortly after obtaining the judgment and, on May 7, 2018, Mr. Posie’s Ford F-150 pickup truck was seized. In cross-examination on his affidavit, Mr. Posie stated that he was surprised that his truck had been seized and that he did not realize that this could happen if the plaintiffs obtained judgment against him.
[16] Mr. Posie did not know about the default judgment until his truck was seized by the sheriff. When that happened, he contacted his present counsel, Mr. Thomson, who immediately contacted counsel for the plaintiffs. Mr. Thomson advised counsel for the defendants, Mr. Formosa, that he had just been retained, would bring a motion to set aside default judgment and asked that the truck, which had just been seized, not be sold.
The Law
[17] Where judgment was properly obtained, the court may exercise its discretion to set aside the default judgment and permit the party to defend the claim where a number of conditions are satisfied. The tests to be satisfied in order for a court to exercise its discretion to set aside default judgment included whether the motion was brought without delay after the defendants learned of the default judgment; whether the circumstances giving rise to the default have been adequately explained; and whether the defendants have an arguable defence on the merits. Further, the court should consider the competing potential prejudice to the parties of granting or refusing to set aside the default judgment. As well, the court should consider the effect of any order on the overall integrity of the administration of justice: Mountain View Farms Ltd. v McQueen, 2014 ONCA 194 at paras 48-49.
[18] The above factors are not treated as rigid rules. Rather, the court must consider the particular circumstances of each case.
Was the motion brought without delay?
[19] The motion was brought promptly after the defendants first learned of the default judgment, namely when their truck was seized. They immediately went to the court office and determined that there was a default judgment and writ of seizure against them in the court file. I am satisfied that this branch of the test to set aside default judgment is satisfied.
Were the circumstances giving rise to the default adequately explained?
[20] The defendants admit that they were served with both the statement of claim and amended statement of claim. They attempted to read them, but did not understand them. They have respectively a grade 8 and grade 9 education. They went to their real estate lawyer who had a conflict of interest, and could not represent them. They went to several other lawyers who wanted a significant retainer which, as pensioners, they could not afford. They attempted to respond to the statement of claim on their own, responding to the allegations of the plaintiffs by writing “admit”, “no knowledge” or “deny” after each of the allegations, and sent this into the court office. They heard nothing further. There is no evidence that they were aware of the noting in default. While they were served with the motion materials for the default judgment, they did not understand them and did not understand they had to appear in court.
[21] Plaintiffs argue that, based on the above, the defendants simply chose not to respond to the claim and, as a result, the default judgment should not be set aside. The plaintiffs state that prior to commencing the action, they corresponded with the defendants suggesting ways of rectifying the three issues, which the defendants did not remedy. Mr. Posie attempted to contact Mr. Themer, who told his lawyer to deal with Mr. Posie. The lawyer sent correspondence to which Mr. Posie replied, indicating that if he raised the chimney height as Mr. Themer proposed, it would be difficult and unsafe to clean, that the water ran off and other neighbours’ property, without complaint.
[22] Thereafter, the action was commenced. I do not accept the argument of the plaintiffs that the defendants chose, of their own volition, not to do anything as regards the claim and chose to simply ignore it.
[23] I am satisfied on the evidence before this court, that the defendants attempted to seek legal advice, could not afford the retainers required by various lawyers, as the defendants are on a fixed income pension; tried to obtain legal aid but were turned down, as legal aid is currently extended to serious criminal matters and some family matters.
[24] I accept Mr. Posie’s evidence that they did not understand how to proceed. They did not understand the documents, nor their import. They have a grade 8 and grade 9 education respectively. They attempted to respond to the statement of claim in their own simple way, sending it into the court office, and heard nothing further.
[25] I am of the view that the default is adequately explained and the second branch of the test is satisfied.
Do the defendants have an arguable defence on the merits?
[26] The defendants state that they have an arguable defence as regards each of the three complaints. As regards the laneway or right-of-way behind the parties’ properties by which they each access their properties, the defendants maintain that the travelled portion of the roadway is 9 feet wide within the 20 foot right of way. The fence, which has been there for more than 20 years, does not block or interfere with the normal passage of vehicles. The defendants maintain that the plaintiff, Mr. Themer, who plows the right-of-way in winter, failed to control his vehicle when the road was covered with 8 inches of snow and left the roadway portion, sliding off and hitting the fence. As regards vehicles blocking the laneway, the defendants maintained that the times complained of were when things were being delivered to their residence, or when someone stopped for a few minutes on the road or side of the road to stop in at their residence. The plaintiffs never asked them to move any vehicles from the roadway.
[27] As regards the wood smoke, the defendants maintained that this happens a few times a year, is natural as regards wood smoke and that Mr. Themer uses an over-the-counter eye drop for any irritation. The plaintiff stated in cross-examination on his affidavit that such interference happens approximately 5-6 times from November to March.
[28] As regards the water discharge, the defendants state that this results from changes to the property contour which redirected surface runoff on their property. I am satisfied that the defendants have an arguable defence on the merits. I do not accept the plaintiffs’ reports that their arguments are supportable. I do not accept, as the plaintiffs argue, that such expert evidence is necessary at this juncture.
[29] I am satisfied that there would be significant prejudice to the defendants should the motion be dismissed, as they would have lost the opportunity to defend this action. The judgment against them is significant and they have lost their vehicle. I am satisfied that the prejudice will be greater to the defendants than any prejudice that may be occasioned by the plaintiffs.
[30] I am further of the view that allowing the default judgment to stand in the circumstances of this case would bring the administration of justice into disrepute. Based on all of the foregoing, I am satisfied that the default judgment of January 16, 2018 should be set aside. The defendants seek the return of their Ford F-150 pickup truck, upon payment of any storage fees. Plaintiffs seek to have the relief ordered on January 16, 2018 as regards the injunctive relief regarding the three complaints and the seizure of the vehicle maintained until the issues are determined at trial.
[31] In my view, maintaining and continuing the order as regards the injunctive relief and seizure of the truck until trial of the issues would be a predetermination of the issues to be tried. This court declines to grant such an interim order.
[32] The vehicle is to be returned to the defendants forthwith upon payment by them of the storage costs. I do not make any order for interim injunctive relief.
Costs
[33] The defendants, as the successful parties, are entitled to be reimbursed for a portion of their costs. Each party provided its Bill of Costs. I am satisfied that the defendants are entitled to their costs on a partial indemnity basis. I award the defendants’ fees in the amount of $10,192.50 plus HST thereon and disbursements in the amount of $1,770.84 plus HST thereon. These amounts are payable forthwith.
Carole J. Brown, J.