Court File and Parties

COURT FILE NO.: CV-19-612799 MOTION HEARD: 20190723 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Simone Barbieri, Plaintiff AND: The Queen in Right of Ontario (Ministry of Environment Parks and Conservation), Celeste Dugas, The City of Vaughan, Gus Michaels, Mayor Maurizio Bevilacqua, Tony Carella and Antonio Gentile, Defendants

BEFORE: Master Jolley

COUNSEL: Timothy Hill, Counsel for the Moving Party Defendants City of Vaughan, Gus Michaels, Mayor Maurizio Bevilacqua and Tony Carella Robert Karass, Counsel for the Moving Party Defendant Antonio Gentile Simone Barbieri, Responding Party, In Person

HEARD: 23 July 2019

REASONS FOR DECISION

[1] The defendants City of Vaughan, Gus Michaels, Mayor Maurizio Bevilacqua and Tony Carella (the “Vaughan Defendants”) and the defendant Antonio Gentile (“Gentile”) bring motions to set aside their noting in default. The Vaughan Defendants were noted in default on April 3 and 4, 2019. Gentile was noted in default on 2 April 2019.

[2] The plaintiff opposes the motion, taking the position that the Vaughan defendants were required to file a statement of defence, despite them having served the plaintiff with a notice of motion to strike her statement of claim and having obtained a date on consent for argument of that motion. She argues that on 5 February 2019, twenty days after they were served with the statement of claim, she wrote the defendants Bevilacqua and Michaels asking whether they intended to defend and, if so, requested their defence by 11 February 2019. She argues that this failure to file a statement of defence in a timely manner is a consistent pattern in her dealings with the Vaughan Defendants. She also wrote the City of Vaughan the same day and was advised that day that it had retained counsel and would be in touch with her shortly. She takes the position that she properly served Gentile on February 9, effectively February 14 and heard nothing until she noted him in default on April 2.

[3] For the reasons set out below, the noting in default of each of these defendants, and any subsequent process by the plaintiff, is hereby set aside.

Motion by the Vaughan Defendants to set aside the noting in default

[4] On 6 February 2019, in response to the plaintiff’s email inquiries of 5 February 2019, the Vaughan Defendants served the plaintiff with a notice of intent to defend. They advised that they were investigating the matter and trusted that “no steps will be taken to note City of Vaughan, Gus Michaels, Mayor Maurizio Bevilacqua and Tony Carella in default of this proceeding unless twenty (20) days written notice is provided by you.” They also noted that they were seeking instructions to move for an order striking the statement of claim as disclosing no reasonable cause of action. They advised that once they had obtained dates from the court, they would be in touch to canvass her availability for that motion. In response, the plaintiff advised that it was her view that the Vaughan Defendants were in default.

[5] On 11 February 2019 the Vaughan Defendants advised the plaintiff that they were proceeding with their motion to strike the claim and set out a range of available dates. In response, the plaintiff advised that the motion to strike was premature. She indicated that she would be seeking leave to amend her claim to add a number of new torts. Her letter is not clear as to whether she intended to seek the amendment only in the event the Vaughan Defendants’ motion to strike was successful or regardless of the outcome. A date for the motion was agreed and on 25 February 2019 the Vaughan Defendants served the plaintiff with their notice of motion to strike the claim returnable April 12. In that same February 25 letter, they also sought clarification of the plaintiff’s position on whether she intended to amend her claim. They followed up on 11 March 2019 confirming the motion date and again requested the plaintiff’s position on the amendment issue.

[6] On 20 March 2019 the plaintiff requested an adjournment of the motion until late June. The Vaughan Defendants agreed and, on 8 April 2019, the motion was rescheduled to 1 August 2019.

[7] Upon being advised of the new date, the plaintiff informed the Vaughan Defendants that she had already noted them in default. Her letter stated in part:

All above parties have been noted in default for not providing a defence in the proscribed time frame set out in the statement of claim. As well you maybe trying to strike this claim through a motion but you are still obligated to provide a defence to the claim which was not provided.

She reiterated this position on 10 April 2019 when she was asked to consent to an order setting aside the notings in default. She stated … “regardless of your motion to strike the claim you still have the obligation as a lawyer to provide a defence to the matter at hand.”

[8] The plaintiff is proceeding on an incorrect legal position. Whether she came to that position through legal advice she received from a lawyer or not, the advice is still wrong. The Vaughan Defendants provided the plaintiff with a copy of LeBlanc v. York Catholic District School Board 2002 CarswellOnt 4122 (S.C.J.) along with their letter of 25 April 2019 confirming that she would not consent to set aside the noting in default without costs and advising that the motion would proceed and they would seek their costs as a result.

[9] In LeBlanc, the court faced a similar set of facts. There the plaintiff noted the defendants in default as they had not filed statements of defence. The plaintiff argued that the defendants’ pending motion to strike the claim was not a step taken to defend the action. To that argument, Blair, R.S.J., stated as follows:

Mr. LeBlanc is mistaken. It is true that the defendants had not delivered their statements of defence, but it is not true that they had not defended the action. It is well accepted that the bringing of a motion before the Court to obtain a stay or the dismissal of an action is recognized as a step in the defence of the proceeding.

[10] The Vaughan Defendants had taken a step in the proceeding by serving their notice of motion to strike the statement of claim. It was not proper to note the Vaughan Defendants in default in the face of that notice of motion. The noting in default was irregular and improperly obtained and should be set aside on that basis.

[11] In any event, the Vaughan Defendants have also met all the criteria set out in Rule 19.03 of the Rules of Civil Procedure to have the court exercise its discretion to set aside the noting in default. There is evidence that they intended to defend (they had served a notice of intent to defend on 6 February 2019). There is a good explanation as to why they did not file a statement of defence (they had served their motion to strike and also believed that the plaintiff intended to amend her pleading to add new causes of action). The motion was brought as soon as the Vaughan Defendants learned of the noting in default. And there is no prejudice to the plaintiff in allowing the defendants to defend the action on its merits, as they are otherwise entitled to do. There is significant prejudice, on the other hand, if the motion does not succeed, as the claim against the defendants is for $85,000,000.

[12] The plaintiff strongly believes in her case and wishes a resolution of a long standing issue with the Vaughan Defendants. While it may have been understandable to hold them to the timelines in the Rules at the outset, it was not reasonable for her to do so after she received correspondence from counsel advising that it was improper for her to have noted the Vaughan Defendants in default in the face of their motion to strike.

Costs in relation to the Vaughan Defendants’ Motion

[13] On 10 April 2019 the Vaughan Defendants wrote to the plaintiff enclosing a consent and requesting her to sign it to avoid any costs. They further advised that if they were required to proceed with the motion, they would be seeking their costs. They estimated those costs to be in the range of $5,000 to $7,000 but stated that they would be seeking full indemnity costs if the motion was necessary.

[14] The Vaughan Defendants have incurred actual costs in the amount of $18,372.88, which they have indicated amount to the all-inclusive amount of $13,120.07 on a partial indemnity basis. They advised that they remain prepared to accept the $7,000 which they estimated to be the fees before any work was done.

[15] I find that to be an appropriate amount for the plaintiff to pay the Vaughan Defendants in the circumstances of this motion. While the record demonstrates that the plaintiff feels wronged and ignored by the Vaughan Defendants, that cannot justify having required those defendants to bring a motion they were certain to win and do so without costs consequences.

[16] The plaintiff shall pay the Vaughan Defendants their all-inclusive costs in the amount of $7,000 within 90 days hereof.

Motion by Gentile to set aside his noting in default

[17] The plaintiff stated that she served Gentile effective 15 February 2019 by leaving a copy with the statement of claim on February 9 with an adult member of his household (Mr. Gentile’s mother) at his residence as it appeared in a Provincial Officer’s Order in her possession and mailing a copy the next day. Gentile says that he did not reside at the address in the Order and did not receive a copy of the statement of claim until 25 February 2019 when his counsel accepted service.

[18] The plaintiff stated that she heard nothing from Gentile or his counsel until 30 April 2019 after he had been noted in default for almost a month. While the plaintiff may not have received it, the record shows that Gentile served all parties with a notice of intent to defend on 25 February 2019 and filed it with the court on February 27. In the cover letter to the plaintiff, Gentile’s counsel stated “I trust you will not take any steps to note my client in default without first providing appropriate notice.”

[19] The plaintiff attended at the courthouse on 2 April 2019. She learned that Gentile had in fact filed a notice of intent to defend but she proceeded to note him in default in any event, as she had not received his notice. On 30 April 2019 Gentile’s counsel wrote to the plaintiff asking her to consent to set aside the noting in default, failing which he would seek costs of this motion on a full indemnity basis.

[20] I find Gentile meets the criteria set out in Rule 19.03 of the Rules of Civil Procedure. He moved quickly to bring this motion after learning of the noting in default. He intended to defend this action, which he demonstrated by serving and filing a notice of intent to defend. He had an explanation for not defending. While Gentile did not bring a motion to strike the claim, he was aware of the Vaughan Defendants’ motion and was awaiting the outcome of that motion before filing a defence. This was not an inappropriate strategy, particularly given his letter to the plaintiff advising that the claim did not allege a proper cause of action against him. Lastly, he had asked that no steps be taken without appropriate notice to him and was then not advised that he would be noted in default (the plaintiff stating she never received that letter).

Costs in relation to the Gentile Motion

[21] Gentile seeks his costs on a full indemnity basis in the all-inclusive amount of $19,460.73. Considering all the circumstances, I do not find that full indemnity is warranted nor that the sum is a reasonable one for the plaintiff to pay in all the circumstances. Gentile is entitled to be paid his partial indemnity costs which I fix in the all-inclusive amount of $7,000 payable within 90 days. While the Gentile materials were less involved than those of the Vaughan Defendants, Gentile incurred the additional time for his counsel to prepare him for cross-examination, at the insistence of the plaintiff, which she afterward abandoned.

[22] Orders to go in the form of the drafts submitted to me by counsel for the defendants, which I have amended and signed.

Master Jolley Date: 25 July 2019