COURT FILE NO.: CV-18-594616
DATE: 2019-09-27
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
TINA JAYNE DUNCAN
Plaintiff
– and –
MARNEE BUCKLES AND ROBERT LEPP
Defendants
Gwendolyn L. Adrian, for the Plaintiff
Carlo Di Carlo, for the Defendant Marnee Buckles
Robert Lepp, for himself
HEARD: August 26, 2019
schabas j.
REASONS ON MOTIONS
Introduction
[1] A number of motions were before me in this matter on August 26, 2019:
The plaintiff, Tina Duncan (“Duncan”), has brought a motion for summary judgment against the defendant, Marnee Buckles (“Buckles”), and a motion for default judgment or, in the alternative, summary judgment, against the defendant, Robert Lepp (“Lepp”);
Buckles has brought a motion seeking to amend her statement of defence and to add a counterclaim and crossclaim, and to withdraw certain admissions arising from her failure to respond to a Request to Admit; and
Lepp has brought a motion seeking to have his noting in default set aside, and a motion seeking to have the action dismissed against him under s. 137.1 of the Courts of Justice Act.
[2] I heard argument on two issues – Lepp’s motion to set aside the noting in default, and Buckles’ motion to amend her pleading and to withdraw admissions. A determination of these motions is necessary before the motions addressing the merits of the action can be heard.
Background
[3] As I am only addressing procedural issues in this decision my review of the facts will be limited.
[4] This action arises from a dispute between two neighbours over the construction of a fence by the plaintiff, Duncan, to keep her puppy from escaping. First, she put up a gate on her driveway, but then learned that an eight-inch strip of the driveway was owned by her neighbor, Buckles, who objected to the gate, thus requiring a fence along the property line. The fence was very close to Buckles’ house. It could be seen directly outside some of her windows and made access to her gas line difficult. Buckles sought assistance from the Town and made postings on social media about the fence that were critical of Duncan. Buckles also sought assistance from the defendant, Lepp, who published numerous blog posts about the dispute in advocating for Buckles and criticizing both Duncan and the Town.
[5] Following the service of a libel notice on February 9, 2018, Buckles removed her posts from social media. Lepp, however, did not remove his postings about Duncan; rather, he escalated his social media campaign against her. It is alleged that Lepp continues to be an advocate for Buckles and that they are acting in concert.
[6] Buckles commenced an action in Small Claims Court on February 21, 2018 against Duncan alleging the fence trespassed on her property and caused a loss of value, use and enjoyment of her home, and for nuisance, trespass and negligence. Although, she also alleged that she was entitled to rights of adverse possession and easement over Duncan’s property, those claims were abandoned after Buckles was advised by a Deputy Judge that such declaratory relief could not be obtained in Small Claims Court. Following a trial on October 29, 2018, the action by Buckles against Duncan was dismissed. That judgment was not appealed.
[7] Meanwhile in March 2018, Duncan brought this lawsuit against Lepp and Buckles for defamation, trespass, nuisance and invasion of privacy. She also seeks declarations that the fence is legally situated on the plaintiff’s property and that Buckles has no rights over the plaintiff’s property by way of adverse possession, prescriptive easement, or otherwise.
[8] Although Buckles defended this action in a timely way, Lepp was noted in default on April 30, 2018 and was made aware of that fact within days. However, rather than moving to cure the default, Lepp has engaged in correspondence making a range of allegations and issuing threats of laying criminal charges, private prosecutions and complaints to the Law Society about both Duncan and her counsel. Even when the motion for default judgment/summary judgment was served, on April 9, 2019, Lepp still did not move to set aside the noting in default; instead he served a motion seeking relief under the anti-SLAPP statute, the Protection of Public Participation Act, 2015 found in section 137.1 of the Courts of Justice Act. Only after attending in Civil Practice Court on June 30, 2019, did Lepp finally serve a motion to set aside the noting in default.
[9] Lepp did draft a Statement of Defence and sent it to Duncan’s lawyer on May 3, 2018. However, he was advised of the need to move to set aside the noting in default and to seek legal advice. Emails suggest Lepp sought legal advice but was unwilling to pay the fees to do so. He also did not respond to an offer from Duncan’s lawyer to lift the noting in default upon payment of a nominal sum for costs. Instead, he continued his attacks on Duncan and her lawyer, threatening criminal charges. In one email, for example, he states: “I will not press charges on perverting justice if you simply take me out of default.”
[10] At the hearing of these motions, on August 26, 2019, Lepp asserted that he had retained a lawyer in July 2018 to have the noting in default set aside but that the lawyer had not done anything and had simply taken his money. However, the correspondence Lepp provided to me in support of his assertion does not support this. Rather, the retainer letter of July 8, 2018 from Charles Shortt Litigation simply provides that it would “represent you in connection with expanding your civil action against the Town of Aurora in relation to the above-noted matter” – that matter being “Duncan v. Lepp et al.” This letter seems to relate to other contemplated litigation and makes no mention of moving to set aside the noting in default, and this conclusion is supported by other correspondence in the record in which Lepp instructs Shortt to bring a new action shortly after being retained. Further, despite Lepp asserting that Shortt simply took his money and then moved to another firm, in the course of argument Lepp advised the court that in the fall of 2018 Shortt represented him on criminal charges. Accordingly, I conclude that Lepp made no effort to set aside the noting in default until faced with this motion, and even then he put it off.
[11] Finally, on July 19, 2018, Lepp commenced a Small Claims Court action against Duncan, Buckles and the employees of the Town of Aurora relating to his alleged pain and suffering arising from the fence dispute. This action has been defended, but no trial date has been set as the Town is seeking to have Lepp declared a vexatious litigant.
Motion to Set Aside the Noting in Default
[12] The factors to consider in determining whether to set aside a noting in default were summarized by Koke J. in 1067600 Ontario Inc. v. Schell, 2011 CarswellOnt 14875, 2011 ONSC 7212, at paras. 30 and 31 as follows:
The case law also makes clear that on a motion by a party seeking this discretionary relief, the Court must consider:
a) whether there is believable evidence that the defendant had an intention to defend in the time permitted for responding to a statement of claim or counterclaim;
b) evidence from the defendant explaining what prevented the defendant from responding to the statement of claim in a timely fashion;
c) whether the motion has been brought with reasonable dispatch; and
d) whether there is any prejudice that would be caused to the party relying upon the noting in default caused by setting it aside.
The Court, when exercising its discretion, is to consider "the full context and factual matrix" and factors such as the behaviour of the parties, the length of the defendant's delay in seeking to respond to the claim, the reasons for the delay and the complexity and value of the claim.
[13] The reference to the “full context and factual matrix” comes from the Court of Appeal decision in Nobosoft Corp. v. No Borders Inc., 2007 ONCA 444, 2007 CarswellOnt 3903, in which the Court stated that “the full context and factual matrix in which the court is requested to exercise its remedial discretion to set aside a noting in default are controlling factors. In particular, … such factors as the behaviour of the plaintiff and of the defendant, the length of the defendant's delay in seeking to respond to the plaintiff's claim, the reasons for the delay and the complexity and value of the claim involved, are all relevant matters to be taken into consideration.”
[14] While Lepp disputes the allegations against him, he has filed no evidence on this motion explaining why he did not bring this motion in a timely fashion. He has had over a year to bring a motion to set aside the noting in default and has presented no credible or acceptable reason for his delay. Indeed, the plaintiff’s counsel offered to have the noting in default set aside if he agreed to pay some nominal costs, which he refused to do. Instead, he engaged in aggressive and threatening correspondence with Duncan’s counsel both in 2018 and in 2019.
[15] Lepp may have intended to defend when he drafted a defence, but that intention did not continue. Unlike Nobosoft, where there was no evidence that the defendant “sought to flout or abuse the Rules of Civil Procedure” (para. 6), Lepp has instead delayed, threatened and, as counsel for Duncan put it, attempted to “bully” his way out of default. Lepp was well aware of being noted in default and of the obligation to move expeditiously to set it aside, but chose not to do so.
[16] In my view, having regard to “the full context and factual matrix”, including Lepp’s behaviour, the extraordinary length of his delay in bringing the motion to set aside, and the absence of a credible or acceptable explanation for the delay, the noting in default should not be set aside.
[17] In reaching this conclusion, I have had regard to the concern that the other defendant, Buckles, now seeks to crossclaim against Lepp, which I will permit as I address below. This creates the situation that Lepp will be a party to the action by crossclaim, but may have a judgment against him in his capacity as a defendant. However, I do not think the plaintiff should be denied her right to seek default judgment against Lepp because of this step by Buckles or that the consequences of Lepp’s misconduct should be avoided because of it. However, I make no finding that the crossclaim to include Lepp is in fact a further act taken by Lepp and Buckles acting together, as was speculated by Duncan’s counsel.
Motion to Amend and Withdraw Admissions
[18] Unlike setting aside a noting in default, which is discretionary, there is a presumption that amendments to pleadings should be allowed. Under Rule 26.01, the Court must grant leave to amend unless the responding party can demonstrate (a) that the amendment would cause it non-compensable prejudice, (b) that the amended pleadings are scandalous, frivolous, vexatious or an abuse of the court’s process; or (c) that the pleading discloses no reasonable cause of action. A motion to amend may be brought at any stage of the action, although in some cases unexplained delay may be seen as prejudice.
[19] Accordingly, the burden is on the plaintiff to persuade me that the amendments should not be granted.
[20] The principal objection to the amendments is that they effectively seek to reopen, and retry, what was determined against Buckles in the Small Claims Court action, namely, the legality of the fence. In Small Claims Court, the judge held that “the fence in question is on [Duncan’s] side of the property” and that she “had every right to have a fence on her property”. This finding was not appealed by Buckles, who had legal representation at that trial, and has had representation by numerous lawyers and paralegals over the course of this dispute. Duncan therefore submits that the causes of action and facts determined in the Small Claims Court action are res judicata between her and Buckles and should not be relitigated in this action.
[21] Duncan also objects to portions of the amended statement of defence as being frivolous and vexatious. It is also argued that the proposed counterclaim, which seeks declaratory relief that Buckles has rights of adverse possession or a prescriptive easement over parts of Duncan’s land should not be permitted as that relief was sought and abandoned in the Small Claims proceeding and should not be permitted to be revived here. Finally, Duncan argues that the crossclaim should be refused as she asserts it is a tactical move to allow Lepp to get back into the action. As noted, Duncan submits that the crossclaim is an indication that Buckles and Lepp are continuing to work together on this matter.
[22] I agree that this action must not turn into a retrial of what occurred in Small Claims Court. However, in order to plead the defences of justification, fair comment and qualified privilege, the factual background of the dispute will inevitably need to be canvassed. Buckles must be able to attempt to prove facts that may support a defamatory meaning. But this must not extend to Buckles attempting to prove facts that conflict with the findings of the Small Claims Court. As well, the factual background may be relevant to whether Buckles acted with malice.
[23] Consequently, I have reviewed the proposed amendments with a view to ensuring that the amended defence does not permit a second trial on the legality of the fence, or on the causes of action that were pursued and dismissed in the Small Claims Court. Paragraph 23, the second sentence of paragraph 36 and the second sentence of paragraph 54 should not be permitted for this reason. Paragraphs 49 and 50 are vexatious and are not permitted but, subject to my findings below, the other amendments to the statement of defence are permitted.
[24] Turning to the counterclaim, I do not agree that Buckles cannot seek declaratory relief. The Small Claims Court had no jurisdiction to grant that relief, and while that portion of the claim could have been transferred to the Superior Court, I do not think that Buckles should be denied an opportunity to assert those claims now. In any event, there is no real prejudice to Duncan as she too is seeking declaratory relief on essentially the same issue, asking for a finding that Buckles “has no rights over the plaintiff’s property, including any portion on which the fence traverses, by way of adverse possession, prescriptive easement or otherwise.”
[25] Consequently, facts pleaded in support of the portion of the counterclaim seeking declaratory relief will be permitted. But other aspects of the counterclaim which overlap with what was determined in the Small Claims Court will not be permitted, as follows: paragraphs 61(a), 70 (last sentence only) and 72. As this removes any claim for damages, subparagraphs 61(d) and (e) should be removed as well, as should the reference to set-off in paragraph 59 and the reference to damages in paragraph 40 of the statement of defence.
[26] As to the crossclaim, in the absence of evidence that the crossclaim is an abuse of process designed to circumvent the noting of Lepp in default, the presumption is that this amendment should be permitted. Lepp remains in default as a defendant. If it is established that the crossclaim was a tactical move by Lepp and Buckles, then that is an issue that can be addressed in the course of the action. The crossclaim is permitted.
[27] Turning, lastly, to the motion to withdraw admissions, I am satisfied that Buckles has presented a “reasonable explanation” for her change of position. She had understood that she could hold off on responding to the Request to Admit served on June 4, 2018, at a time when she was not represented, pending receipt of a survey. After that, other matters progressed, such as the Small Claims Court litigation. While some of the admissions now address findings from the Small Claims case and it may be tempting to parse which admissions should stand, I believe that the better route is to simply grant leave to withdraw all the admissions arising from the Request to Admit and the plaintiff, if she wishes, can serve a new one. The action is still at an early stage and there is a no material prejudice to Duncan.
Conclusion and Next Steps
[28] The plaintiff has an outstanding motion for summary judgment and default judgment. Lepp’s anti-SLAPP motion was brought in his capacity as a defendant, which cannot proceed as he remains noted in default. The amendments to the statement of defence may have an impact on the plaintiff’s motion, and if the crossclaim is issued Lepp will need to consider his position.
[29] Although I was invited to remain seized of this matter by counsel for Buckles, I decline to do so. The matters addressed in these Reasons are distinct and do not address the merits of the case. Other judges will be just as well positioned to address the contemplated motions as me.
[30] Success has been mixed between Duncan and Buckles and I make no costs order as between them. With respect to Duncan and Lepp, I will receive costs submissions from Duncan not exceeding 3 pages, double-spaced, not including supporting documents, on or before September 30, 2019. Mr. Lepp shall have 10 days to respond, in submissions not exceeding 3 pages, not including any supporting documents.
Schabas J.
Released: September 27, 2019
COURT FILE NO.: CV-18-594616
DATE: 2019-09-27
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
TINA JAYNE DUNCAN
Plaintiff
– and –
MARNEE BUCKLES AND ROBERT LEPP
Defendants
REASONS on motion
Schabas J.
Released: September 27, 2019