COURT FILE NO.: CV-18-76859
DATE: 20191025
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Gladys Segura Mosquera
Plaintiff
– and –
Rogers Communications Inc. – Operator of Fido Solutions
Defendant
Self-represented, for the Plaintiff
Kyle Lambert, for the Defendant Jaime Wilson, for CCTS
HEARD: March 1, 2019 (at Ottawa)
REASONS FOR DECISION
KANE J.
[1] The plaintiff by motion pursuant to Rules 37.14 and 1.04, seeks to set aside the November 23, 2018 order dismissing her motion to transfer her Small Claims Court proceeding, No. SC-17-143801 (the “SC Action”), to this court and to add the Commission for Complaints for Telecom-Television Services (the “CCTS”) and the Canadian Radio-Television and Telecommunications Commission (the “CRTC”) as defendants.
Background
[2] The plaintiff commenced her SC Action against Rogers Communications Inc. – Operator of Fido Solutions (“Rogers”) on January 26, 2017 in which she alleged that:
(a) Rogers made numerous incorrect charges to her account between March 2013 and September 2016;
(b) Rogers at her request in August 2013 conducted repairs to her cellular telephone;
(c) Rogers, despite the plaintiff’s prior communications with that company in an attempt to rectify the incorrect charges to her, disconnected her wireless service on September 6, 2016, which service the plaintiff sought to have reinstated;
(d) she filed several complaints with the CCTS against Rogers regarding its incorrect charges to her account, the cancellation of her wireless service and the assignment of her telephone number to another person, however the CCTS failed to intervene;
(e) she laid a complaint with the Ottawa Police Service due to Rogers’ termination of her wireless service and the 2013 replacement of her cellular telephone by Rogers without her knowledge and permission during repairs to her cellular telephone; and
(f) she claimed $1,858 in damages against Rogers, re-connection by Rogers of wireless service to her and its assignment to her of her original cellular telephone number.
[3] The SC Action was scheduled to proceed to trial on June 14, 2018 in Small Claims Court. That trial and Rogers’ accompanying motion to dismiss the SC Action were adjourned on May 18, 2018, to permit the plaintiff to seek leave to transfer the SC Action to this court and to add CCTS and the CRTC as defendants.
[4] The plaintiff then brought a motion in this court to transfer the SC Action to the Ontario Superior Court which was returnable on November 23, 2018.
[5] The plaintiff’s November 23, 2018 motion to transfer her SC Action to this court and to add the CCTS and CRTC as defendants for their failure to address her complaints against Rogers, was dismissed on November 23, 2018 on the basis that the plaintiff failed to appear in court despite being paged.
[6] The plaintiff submits she was in attendance and attempted to attend to argue her motion on November 23, 2018 but was unable to do so despite her best efforts, that this court erred that day in dismissing her motion for non-attendance and she accordingly requests that that dismissal order be set aside in order to permit her to schedule and argue such motion.
[7] Rogers submits the plaintiff’s claim is limited to $1,858 in damages related to its cancellation of her wireless service which should therefore remain in Small Claims Court. Rogers submits the plaintiff has failed to meet the requirements under R. 38.11 to set aside a judgment on the bias of mistake or error.
[8] The CCTS submits the plaintiff has failed to demonstrate any cause of action against it, has failed to meet the R. 38.11 requirements to set aside a judgment obtained by mistake or error and that the dismissal order therefore should not be set aside.
November 23, 2018 Dismissal Order
[9] The brief three-page November 23, 2018 court transcript indicates:
(a) the plaintiff’s motion was the first matter to proceed that day at 10 a.m.;
(b) counsel for Rogers and the CCTS were in attendance at 10 a.m. as was an observer from the CRTC;
(c) prior to the plaintiff’s arrival in the courtroom, counsel responded to several brief questions as to whether that judge had all the motion materials filed by Rogers and the CCTS on the plaintiff’s motion;
(d) No submissions were made during the above exchange regrading the issues on the motion;
(e) during the above brief exchange between the judge and counsel, the plaintiff was called once over the public address system to come to the courtroom where her motion was to be heard; and
(f) without discussion as to the merits of the motion and without being requested by Rogers or the CCTS to do so, the motion judge then stated she would strike the plaintiff’s motion, took a moment to write her short three-line endorsement and then read that endorsement in which she dismissed rather than striking the motion, due to the plaintiff’s failure to be present.
[10] While counsel waited in the hallway to receive a photocopy of the motion judge’s endorsement, the plaintiff arrived at the courtroom and was advised by a court service officer that her motion had been dismissed.
[11] The evidence indicates that the plaintiff stated to counsel and the court service officer that the she had been sent to and attended in the wrong courtroom. The plaintiff therefore asked to speak to the motion judge who had dismissed her motion. The court service officer told the plaintiff she could not speak to the motion judge, notwithstanding the continuing presence of counsel for Rogers and the CCTS.
[12] The plaintiff persisted. She and counsel for Rogers and the CCTS were permitted to speak to another judge at 12:30 p.m. on November 23, 2018. The plaintiff explained what had happened and requested the opportunity to argue her motion. This second judge indicated she could not assist as the motion was not before her and that the plaintiff would have to bring a motion to set aside the order dismissing her motion.
[13] The plaintiff was provided with a date by the court and served this motion on November 28, 2018 to set aside the November 23, 2018 dismissal of her motion, thus responding expeditiously to the November 23dismissal order.
Analysis
[14] Rogers and the CCTS in opposing that the dismissal order be set aside, include arguments and some of their affidavits filed in opposition to the plaintiff’s November 23, 2018 motion to transfer the SC Action to this court.
[15] Paragraphs 21 to 27, 36, 37 to 40 and 48 to 51 in the CCTS factum for example, and its November 15, 2018 reply affidavit, are arguments and authorities it intended to rely upon on November 23, 2018 in opposing the plaintiff’s motion to transfer to this court.
[16] Rogers in its factum on this motion submits the plaintiff’s request to transfer her SC Action, to expand the relief she seeks in that transferred claim and to add two new defendants, is an abuse of process (paras. 32 to 39).
[17] Such arguments by Rogers and the CCTS will presumably be relied upon again if the dismissal order is set aside and the plaintiff is allowed to proceed with her motion to transfer to this court and add the CRTC and the CCTS as defendants.
[18] A central issue is whether this motion to set aside the dismissal order is governed by R. 37.14 or, as submitted by Rogers and the CCTS, is governed by R. 38.11, namely whether the plaintiff must demonstrate valid claims to have the dismissal order set aside.
[19] Those Rules state:
37.14 (1) A party or other person who,
(a) is affected by an order obtained on motion without notice;
(b) fails to appear on a motion through accident, mistake or insufficient notice; or
(c) is affected by an order of a registrar,
may move to set aside or vary the order, by a notice of motion that is served forthwith after the order comes to the person’s attention and names the first available hearing date that is at least three days after service of the notice of motion. R.R.O. 1990, Reg. 194, r. 37.14 (1); O. Reg. 132/04, s. 9.
(2) On a motion under subrule (1), the court may set aside or vary the order on such terms as are just. R.R.O. 1990, Reg. 194, r. 37.14 (2).
38.11 (1) A party or other person who is affected by a judgment on an application made without notice or who fails to appear at the hearing of an application through accident, mistake or insufficient notice may move to set aside or vary the judgment, by a notice of motion that is served forthwith after the judgment comes to the person’s attention and names the first available hearing date that is at least three days after service of the notice of motion. R.R.O. 1990, Reg. 194, r. 38.11 (1); O. Reg. 132/04, s. 10; O. Reg. 55/12, s. 3. (emphasis added)
[20] The requirements under R. 38.11 to set aside a judgment on the basis of mistake or accident, have been held to be the same as the requirements to set aside default judgment under R. 19.08; as held in 1493201 Ontario Ltd. v. Giannoylis 2016, 2016 ONSC 1210 (O.S.C.). That court stated:
10 Given the similarity of these provisions and the circumstances in which they operate, it is my view that it is appropriate to adopt the test outlined in Intact Insurance Company v. Kisel for setting aside default judgments to motions to set aside judgment granted on an application under Rule 38.11.
11 In Kisel the Ontario Court of Appeal stated that a Court has to decide whether, in the particular circumstances of the case, it is just to relieve a defendant from the consequence of default. The following criteria, although not rigid rules, apply to a motion (to set aside a default judgment) under Rule 19.08:
(a) Was the motion brought promptly after the Defendant learned of the default judgment?
(b) Does the Defendant have a plausible excuse or explanation for the default?
(c) Does the Defendant have an arguable defence on the merits? (d) What is the potential prejudice to the Defendant should the motion be dismissed, and the potential prejudice to the Plaintiff should the motion be allowed?
(e) What would be the effect of any order the Court might make on the overall integrity of the administration of justice? (emphasis added)
12 In light of Rule 38.11 and Kisel, the applicable criteria on a motion under Rule 38.11 are as follows:
(a) Was the application made without notice or did the Respondent fail to appear at the hearing of the application through accident, mistake or insufficient notice?
(b) Was the Respondent's motion to set aside the judgment brought forthwith after the judgment came to her attention?
(c) Did the respondent's motion name the first available hearing date that was at least three days after service of the notice of motion?
(d) Does the Respondent have an arguable defence on the merits?
(e) What is the potential prejudice to the Respondent should the motion be dismissed and what is the potential prejudice to the Applicant should the motion be allowed?
(f) What would be the effect of any order the Court might make on the overall integrity of the administration of justice? (emphasis added)
See also 1202600 Ontario Inc. v. Jacob, 2012 CarswellOnt 1335 (O.S.C.), para 76.
[21] The plaintiff did not commence a proceeding in this court in bringing her motion that was dismissed on November 23, 2018. The order in issue dismissed the plaintiff’s motion for leave to transfer the SC Action to this court. Has such leave been granted, that order transfer would result in the SC Action being transferred to this court.
[22] The plaintiff, pursuant to s. 107(1)(c) to (4) of the Courts of Justice Act R.S.O. 1990, Chapter C.34 (the “CJA”) and R. 37.17, may seek the transfer of her SC Action to this court by motion. Although she could have, she was not required to and did not commence an application seeking such transfer to this court.
[23] It is not disputed that the plaintiff as a result of the November 23, 2018 dismissal order order remains entitled to proceed with the SC Action in that court.
[24] Rule 37.17 states:
MOTION BEFORE COMMENCEMENT OF PROCEEDING
37.17 In an urgent case, a motion may be made before the commencement of a proceeding on the moving party’s undertaking to commence the proceeding forthwith. R.R.O. 1990, Reg. 194, r. 37.17.
[25] The trial of the SC Action and Rogers’ motion therein to dismiss that action were adjourned pending the outcome of the plaintiff’s November 23, 208 transfer motion, thereby creating some urgency to resolve the issue.
[26] This motion is governed by R. 37.14 and not R. 38.11 as:
(a) there was no Notice of Application issued commencing an action and returnable before the court on November 23, 2018;
(b) the matter before the court on November 23, 2018 was a motion brought to transfer the SC Action to the Superior Court;
(c) no judgment dismissing an application or the SC Action was granted on November 23, 2018, as to which R. 38.11 would apply;
(d) what the plaintiff sought by motion and what was dismissed, was relief of an interlocutory nature and not final, such as judgment against the plaintiff; and
(e) the plaintiff on this motion is not seeking to set aside dismissal of her action, which never existed in this court and still exists in the Small Claims Court, but rather the opportunity to argue her dismissed motion to transfer her existing proceeding into this court and to expand her causes of action and add two defendants.
[27] A R. 37.14 motion to set aside a dismissal of an interlocutory order due the plaintiff’s arrival several minutes after it was called, involves, as it should, a lower onus than required to set aside a judgment in a proceeding obtained upon default or due to mistake or accident.
[28] The following statutory provisions from the CJA and from the Rules support requiring a lower onus to set aside a dismissal order of an interlocutory motion obtained through error or accident:
CJA – S. 71
71 The administration of the courts shall be carried on so as to,
(a) maintain the independence of the judiciary as a separate branch of government;
(b) recognize the respective roles and responsibilities of the Attorney General and the judiciary in the administration of justice;
(c) encourage public access to the courts and public confidence in the administration of justice;
(d) further the provision of high-quality services to the public; and
(e) promote the efficient use of public resources. 2006, c. 21, Sched. A, s. 14. (emphasis added)
[29] Dismissing a self-represented litigant’s motion, or proceeding, because they arrived five to ten minutes after commencement of motions court, then prohibiting that late party the right to address the court and thereby requiring this motion to set aside the dismissal order does not:
(a) encourage access to the courts;
(b) enhance confidence in the administration of justice; nor
(c) promote the efficient use of public resources.
Rules 1.04 and 2.01
1.04 (1) These rules shall be liberally construed to secure the just, most expeditious and least expensive determination of every civil proceeding on its merits. R.R.O. 1990, Reg. 194, r. 1.04 (1).
2.01 (1) A failure to comply with these rules is an irregularity and does not render a proceeding or a step, document or order in a proceeding a nullity, and the court,
(a) may grant all necessary amendments or other relief, on such terms as are just, to secure the just determination of the real matters in dispute; or
(b) only where and as necessary in the interest of justice, may set aside the proceeding or a step, document or order in the proceeding in whole or in part. R.R.O. 1990, Reg. 194, r. 2.01 (1) (emphasis added).
[30] The objective under R. 1.04 is to be considered in regard to the requirements under R. 38.11 to set aside a judgment obtained on default or by error or accident, as stated in Jacob, supra, paras 67 to 69:
67 Rule 1.04(1) has been described as the "interpretation rule" and the "philosophy rule", in addition to being called "the single most important Rule of Civil Procedure". See 419212 Ontario Ltd. v. Astrochrome Crankshaft Toronto Ltd. (1991), 1991 CanLII 7163 (ON SC), 3 O.R. (3d) 116 at 121 (Ont. Master); Naumovich v. Naumovich, [1996] O.J. No. 30 at p. 6, 1996 CarswellOnt 15 (Ont. Gen. Div.); Griffioen v. Liao (2003), 2003 CanLII 54 (ON SC), 68 O.R. (3d) 535 at 539-40 (Ont. S.C.J.). See generally Poulous, William J., The Interpretation Rule: A history and where do we go from here?, (2007) 46 C.P.C. (6th) 12.
68 The rule emphasizes that the Rules should be interpreted liberally in a fashion that will best determine proceedings on their merits in a just fashion.
69 I am of the view that rule 1.04(1) emphasizes a "common sense" approach to civil procedure which does not lose sight of the importance of the (final) determination of the matter. (emphasis added)
[31] While there is weight to the defence arguments that liability of Rogers does not exceed the monetary limit of the Small Claims Court and even greater weight to the submissions that this action will not be successful as against the CCTS or the CRTC, those should not be the central issue as to whether this order of interlocutory nature dismissing a motion should be set aside on the basis of accident or mistake under R. 37.14.
[32] There is no defence cross-motion before the court pursuant to R. 20, R. 21, nor is there a R. 26.01 and R. 5.04 motion, which the plaintiff would have had an opportunity to respond to. Rogers and the proposed defendants were not in a position to bring such a cross-motion as the proceeding is not yet in this court.
[33] None of the parties are responsible for the plaintiff being directed to the wrong courtroom on November 23, 2018.
[34] The plaintiff was responsible to be in the correct courtroom when her motion was called. Her attendance shorty after being directed to the correct courtroom, supports her observation that parties do not know where their matter appears on that day’s court list, until they arrive in court on the scheduled date, which often results in parties lower on that list waiting hours to be heard.
[35] Upon her request, the plaintiff on November 23, 2018, should have been allowed to speak to the motion judge after the dismissal order was made, particularly as opposing counsel were still in attendance.
[36] The plaintiff was attempting to get to the correct courtroom and then attempted to address the dismissal issue immediately upon learning of that decision. The most expeditious and least costly resolution would have been for all parties to have argued the November 23, 2018 motion later that day, or on a subsequent available date, rather than opposing this motion to re-establish that opportunity.
[37] The plaintiff as stated brought this motion in a timely manner, as required under R. 37.14 (1).
[38] The options on November 23, 2018, at that early hour in motions court when the plaintiff was not present and after her name was called on the public address system, included:
(a) adjourning the plaintiff’s motion to follow argument of the next motion on the list;
(b) striking the plaintiff’s motion from that day’s list or adjourning it to a date to be set; and
(c) dismissing the plaintiff’s motion outright due to her non-attendance, as occurred.
[39] Dismissal of a motion should preferably be determined on its merits. Subject to the plaintiff’s late arrival in the correct courtroom on November 23, 2018, all parties had prepared and intended to argue the motion that day.
[40] A short delay occurred on November 23, 2018, prior to the plaintiff arriving in the correct courtroom. Such a delay can and often occurs for a host of reasons.
[41] The “just, most expeditious and least expensive determination” objective referred to in R. 104 (1) on November 23, 2018, for all parties would have been to proceed and argue the plaintiff’s motion on that date.
Conclusion
[42] The November 23, 2018 dismissal order for the above reasons is set aside.
[43] The plaintiff shall forthwith reschedule her transfer motion in this court for three hours, subject to the availability of counsel.
[44] To avoid or limit a possible cost award on her motion to transfer to this court, the plaintiff should consider whether she will continue to seek to add the CRTC and/or the CCTS as defendants if her action is transferred to this court. The plaintiff is required to advise each counsel of her decision whether she intends to continue to seek to add CRTC and CCTS as parties upon her scheduling the return date of her motion to transfer the SC Action.
Costs
[45] Any party seeking costs of this motion shall within 30 days from the date of this decision submit brief written argument including a draft bill of costs and a summary of time dockets or time and dates of work performed and claimed.
[46] Any reply to such claim for costs shall be in writing and served and filed within 20 days after receipt of submissions by a party seeking costs.
Mr. Justice Paul Kane
Released: October 25, 2019
COURT FILE NO.: CV-18-76859
DATE: 20191025
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Gladys Segura Mosquera
Plaintiff
– and –
Rogers Communication Inc. – Operator of Fido Solutions
Defendant
REASONS FOR DECISION
Kane J.
Released: October 25, 2019