COURT FILE NOS.: 4504-08, 4520-08, 4553-08, 4582-09, 4694-09
DATE: 2019/12/20
ONTARIO SUPERIOR COURT OF JUSTICE
B E T W E E N:
SHELLY CONDIE, SANDRA BRENNAN, SUSAN SEGUIN, SHARON MOFFATT, DANNY CONDIE, DENIS CONDIE and DELMER CONDIE
Plaintiffs
- and -
TIMMY LYNN SMITH, T.L. SMITH FUNERAL HOME, MICHAEL ROYER, BOARD OF FUNERAL SERVICES and 1189229 ONTARIO LIMITED, carrying on business as FOREST LAWN CREMATORIUM
Defendants
- and -
B E T W E E N:
THE ESTATE OF ALFRED SARRAZIN, RICHARD SARRAZIN as Litigation Administrator of the Estate of CLAIRE SARRAZIN, MICHEL SARRAZIN, DIANE MURRAY, MONIQUE DODIER, PIERRE SARRAZIN, GERARD SARRAZIN, RICHARD SARRAZIN, MAURICE SARRAZIN, ROMEO SARRAZIN, JEANNINE DOOL AND JACQUELINE PATRIE
Plaintiffs
- and -
TIMMY LYNN SMITH, T.L. SMITH FUNERAL HOME, MICHAEL ROYER, BOARD OF FUNERAL SERVICES and 1189229 ONTARIO LIMITED, carrying on business as FOREST LAWN CREMATORIUM
Defendants
- and -
B E T W E E N:
VICTORIA WUNSCH, JACQUELINE WUNSCH, ETHAN WUNSCH, VICTORIA WUNSCH as Litigation Administrator of the Estate of BRAUN WUNSCH, COURTNEY WUNSCH and CASEY WUNSCH
Plaintiffs
- and -
TIMMY LYNN SMITH, T.L. SMITH FUNERAL HOME, MICHAEL ROYER, BOARD OF FUNERAL SERVICES and 1189229 ONTARIO LIMITED, carrying on business as FOREST LAWN CREMATORIUM
Defendants
- and -
B E T W E E N:
THE ESTATE OF AUGUSTIN LEONARD MINOR, MARK MINOR, MICHELINE MORIN, PATTI BOUDREAU, SUZANNE MICHAUD AND LILA MINOR
Plaintiffs
- and -
TIMMY LYNN SMITH, T.L. SMITH FUNERAL HOME, MICHAEL ROYER, BOARD OF FUNERAL SERVICES and 1189229 ONTARIO LIMITED, carrying on business as FOREST LAWN CREMATORIUM
Defendants
- and -
B E T W E E N:
CLAUDE MINOR, THEODORE MINOR, PAULINE MORIN, PAULETTE SOUCIE, MARIE MARTIN, and GERARD SKELLING as Litigation Administrator of the Estate of CLAIRE SKELLING
Plaintiffs
- and -
TIMMY LYNN SMITH, T.L. SMITH FUNERAL HOME, MICHAEL ROYER, BOARD OF FUNERAL SERVICES and 1189229 ONTARIO LIMITED, carrying on business as FOREST LAWN CREMATORIUM
Defendants
Counsel:
E. Cullen, for the Plaintiffs
S. Lucenti, for the Defendant, Michel Royer
HEARD: October 2, 2019
REASONS FOR DECISION
Ellies R.S.J.
[1] In 2007, the Town of Mattawa was thrust into the national spotlight for reasons the town would rather forget. In September of that year, an Ontario Provincial Police investigation revealed that the bodies of dozens of deceased people had suffered indignities at the town’s only funeral home. Some had been left to decompose. Others had been cremated improperly. Still others had been buried in the wrong gravesites. In some cases, the families of the deceased had been defrauded out of prepaid funeral services. The macabre nature of the story attracted the attention of the national news media.
[2] As a result of the police investigation, a multitude of charges were laid against the owner of the funeral home, Timmy Lynn Smith ("Smith"). In 2009, Smith pleaded guilty to a number of those charges and was sentenced to a term of imprisonment.
[3] The defendant, Michel Royer ("Royer", improperly named “Michael” Royer in the statements of claim), lived with Smith from 1999 until the charges were laid. In December 2008, he was served with the first of five statements of claim issued on behalf of the families of some of Smith's deceased victims. Royer brought those statements of claim to a lawyer, whom he retained to defend him against the lawsuits. He heard nothing from the lawyer until 2014, when he received a bill. He says he heard nothing again about the lawsuits until he received a letter dated June 30, 2017 from the plaintiffs’ lawyer, advising him that judgments had been obtained against him in all five actions and enclosing copies of judgments totalling nearly $800,000.
[4] This is one of five motions in which Royer seeks to set aside the default judgments and to file statements of defence. He maintains that he had nothing to do with the improprieties committed by Smith and always intended to defend against the plaintiffs’ allegations that he did. The plaintiffs oppose the request. Among other things, they submit that Royer has no plausible excuse for failing to defend against their claims and no arguable defence. In any event, they argue, the importance of finality in litigation should trump any other consideration in this case.
[5] These reasons explain why I believe Royer must be given an opportunity to defend against these lawsuits. Any prejudice the plaintiffs will suffer if the judgments are set aside is outweighed by the prejudice Royer will suffer if they are not. Not only is there a huge amount of money involved, but the allegations on which the judgments are based are morally reprehensible. Further, if the judgments are not set aside, the integrity of administration of justice will suffer because the default judgments were the result of slips made by the lawyers for both sides.
FACTUAL BACKGROUND
[6] Royer and Smith met in 1998. In 1999, Royer moved into an apartment with Smith which was located above the T. L. Smith Funeral Home, in Mattawa. They began what I understand was a conjugal relationship at or about that time. The funeral home was owned jointly by Smith and his ex-wife.
[7] Royer and Smith separated for a period of time in 2001-2002. They resumed co-habitation in 2002. Royer deposes that, from 2002 until he and Smith separated in 2007, he helped Smith with odd jobs around the funeral home, including cleaning, monitoring the front desk, washing vehicles, and cutting the lawn. Royer deposes that he had nothing to do with the management of the business and that what he did there he did for free.
[8] In September 2007, Smith was arrested and charged with various criminal offences relating to the operation of the funeral home. Royer was interviewed during the police investigation that led to the charges, but no charges were laid against him. He left Mattawa in that year and moved to the Niagara area. In 2009, Smith pleaded guilty to 48 offences including committing indignities to human remains, fraud, theft and forgery. He was sentenced to a prison term of 18 months, to be followed by probation for two years.
[9] On December 13, 2008, while the charges against Smith were still outstanding, Royer was served with two statements of claim. The first had been issued on behalf of the plaintiffs in what I will call the "Condie" action (court file no. 4504-08). The second was issued on behalf of the plaintiffs in what I will call the "Sarrazin" action (court file no. 4520-08). The plaintiffs in both actions sought damages for the psychological and emotional harm caused by the "improprieties" that befell their deceased loved ones, among other things. The claims against Royer were based on the allegation that "at all material times, Royer assisted Smith with the operation of the Funeral Home."
[10] On December 18, 2008, five days after being served, Royer met with a lawyer in Hamilton (not Ms. Lucenti). Royer provided the lawyer with the statements of claim in the Condie and Sarrazin actions and retained him to defend him against the allegations made in those claims.
[11] The plaintiffs in both actions were represented by the same lawyer (not Ms. Cullen). On January 19, 2009, Royer's lawyer wrote to the plaintiffs' lawyer, serving him with Notices of Intent to Defend the claims under Rules of Civil Procedure, R.R.O. 1990, Reg. 194. In his letter, Royer's lawyer advised the plaintiffs' lawyer that Royer was not an employee, officer or director of the funeral home and that his involvement in "menial tasks" such as cleaning and reception were undertaken as a volunteer only. He requested that the plaintiffs' lawyer consider discontinuing the actions against Royer "[p]rior to the filing of pleadings", meaning without requiring Royer to file a statement of defence. Royer's lawyer closed his letter by saying that he looked forward to receiving the plaintiffs' lawyer's reply at his "earliest convenience". He never received that reply.
[12] Instead, on February 23, 2009, the plaintiffs' lawyer caused Royer to be served with two more statements of claim. These are the claims issued on behalf of the plaintiffs in the "Wunsch" (court file no. 4553-08) and the "Minor Estate" (court file no. 4582-09) actions. These claims are virtually identical to the claims made in the Condie and Sarrazin actions and are based on the same allegations against Royer.
[13] Royer deposes that, just as he had done with the earlier claims, he provided the Wunsch and Minor Estate claims to his lawyer by bringing them to the lawyer's office. This is supported by the evidence of an employee at the lawyer's firm. Although she has no independent recollection of the event, and although the claims themselves were never found in the lawyer's file, the employee identifies a copy of a memo that she prepared on February 24, 2009 in which she wrote:
Mr. Royer was served with another set of claims on February 23, 2009. He dropped them off at our office on today's date.
[14] Royer's lawyer deposes that he did not see the February 24, 2009 memo until October 2017 and never saw the claims referred to in it.
[15] On August 18, 2009 Royer was served with the last of the five nearly identical statements of claim in what I will call the "Minor Family" (court file no. 4694-09) action. Royer deposes that he dropped this statement of claim off at his lawyer's office, just as he had done with the others. However, there is nothing to support this in the lawyer's file and neither the lawyer nor his employee depose that they ever saw it or that Royer ever brought it in.
[16] Unknown to Royer or his lawyer, on July 14, 2011, Royer was noted in default by the plaintiffs in all of the actions, as were Smith and the funeral home. On August 24, 2011, an order was obtained by the plaintiffs that the actions be tried together.
[17] Nothing more happened for years as far as Royer was concerned until his lawyer sent him a "final" bill on December 18, 2014. As far as Royer knew, that was the end of the matter. But it was not.
[18] On June 30, 2017 Royer received a letter from the plaintiffs' lawyer advising him that judgments had been entered against him in all five actions and enclosing copies of the judgments obtained. The total amount of the judgments was $787,500, including costs. The amount owing is actually higher than that because the judgment in the Sarrazin action had been amended after it was obtained on December 2, 2016 to include one of the Sarrazin plaintiffs' damages of $25,000, but the amended judgment was not included in the letter. The total amount of the judgments, therefore, is $812,500, exclusive of interest. Writs of execution have been filed against Royer to collect on the judgments.
[19] Not surprisingly, Royer went to his lawyer with the letter and its contents. Ultimately, the matter was reported to Royer's lawyer's liability insurer. These motions are the result. In them, Royer seeks to set aside the noting in default, the default judgments, and the writs of execution.
ISSUES
[20] The parties agree that if Royer meets the test for setting aside the default judgments, he will also meet the test for setting aside the noting in default in the underlying actions.
[21] Although the court does have discretion to maintain the writs of execution in certain circumstances even though the judgments are set aside (see 2437021 Ontario Inc. v. Axim Centre Inc., 2017 ONSC 7054, at para. 36), the plaintiffs have not requested such an order.
[22] The sole issue in this motion, therefore, is whether the default judgments should be set aside.
ANALYSIS
[23] The power to set aside a default judgment that has been obtained on a motion for judgment, as these judgments were, is contained in r. 19.08(2) of the Rules of Civil Procedure. That rule provides:
A judgment against a defendant who has been noted in default that is obtained on a motion for judgment on the statement of claim under rule 19.05 or that is obtained after trial may be set aside or varied by a judge on such terms as are just.
[24] The factors to be considered by the court in deciding whether to set aside a default judgment were summarized by Laskin J.A. on behalf of the Court of Appeal in Intact Insurance Co. v. Kisel, 2015 ONCA 205, at para. 14. The court must consider:
(a) whether the motion was brought promptly after the defendant learned of the default judgment;
(b) whether the defendant has a plausible excuse or explanation for the default;
(c) whether the defendant has an arguable defence on the merits;
(d) the potential prejudice to the defendant should the motion be dismissed, and the potential prejudice to the plaintiff should the motion be allowed; and
(e) the effect of any order the court might make on the overall integrity of the administration of justice.
[25] Laskin J.A. held that the factors set out above are not rigid rules, each of which must be satisfied by the party seeking to set aside a default judgment. Instead, the determination is contextual. As he wrote, also at para. 14:
The court has to decide whether, in the particular circumstances of the case, it is just to relieve a defendant from the consequences of default: Mountain View Farms Ltd. v. McQueen, 2014 ONCA 194, 372 D.L.R. (4th) 526 (Ont. C.A.), at paras. 48-50.
[26] In deciding whether to set aside a default judgment, there is a tension between the need to be fair and the need for finality. The longer the delay, the greater the tension.
Was the motion brought promptly?
[27] The plaintiffs argue that Royer failed to bring these motions promptly after he was made aware of the judgments against him. I am unable to agree.
[28] The plaintiffs point to the fact that the motions were not argued until more than two years after Royer received the plaintiffs' lawyer's letter on June 30, 2017. However, there is a reasonable explanation for the length of time it took to get to a hearing on these motions.
[29] Following receipt of the letter from the plaintiffs' lawyer on June 30, Royer met with his lawyer. His lawyer wrote to the plaintiffs' lawyer on July 27, 2017 to point out that he had been served with Notices of Intent to Defend and had never responded to the letter he sent to the plaintiffs' lawyer on January 19, 2009. Although it is not stated in the affidavits filed on the motion, I gather that Royer's lawyer then referred Royer to another lawyer before reporting the situation to his insurer on August 16, 2017. Both Royer's lawyer and the lawyer retained to represent him by his insurer, Ms. Lucenti, attempted without success to persuade the plaintiffs' lawyer to consent to setting aside the default judgments. I see nothing unreasonable in taking the time to attempt to settle the issue before undertaking the work required to set the judgments aside.
[30] The plaintiffs argue that Ms. Lucenti's office went to too much trouble from that point forward, causing delay. In particular, they say that she did not have to obtain copies of the court files before bringing the motion, as she chose to do. According to the plaintiffs' lawyer, all Ms. Lucenti had to do was to ask and she would have been provided with copies of the court documents in his files. Instead, as the evidence filed by Ms. Lucenti's office shows, she was required to wait until May 16, 2018 before receiving a copy of the last of the five court files.
[31] I see nothing unreasonable in Ms. Lucenti wanting complete copies of the court files, rather than just asking for copies of the relevant documents from the plaintiffs’ lawyer’s files. The actions all involved more than one defendant. The only way for Ms. Lucenti to be sure that she had all of the documents filed in the proceedings was to obtain the court files.
[32] The delay from May 16, 2018, when the last of the court file copies was received, has also been adequately explained. Even before that date, affidavits had been prepared and sworn by Royer’s lawyer and his employee with respect to the Condi action. Royer’s affidavit with respect to all five actions was sworn in August 2018. Ms. Lucenti’s office received the sworn affidavits from Royer’s lawyer and his employee regarding the other four actions in September 2018.
[33] That same month, Ms. Lucenti corresponded with the plaintiffs’ lawyer with respect to setting a date for a long motion in accordance with this court’s local practice direction, which requires that a date be obtained by attending the monthly civil assignment court once the moving party’s materials have been delivered. The parties eventually agreed on a timetable by virtue of which all preliminary steps, including cross-examinations on affidavits, were to be completed by May 10, 2019 and a long motion date obtained thereafter.
[34] The court record shows that the matters were addressed at the assignment court on May 17, at which time the motions were scheduled to be argued on October 2, the date upon which the motions were argued before me. I have no information as to why that particular date was chosen, but it appears that no issue is taken by the plaintiffs with respect to the delay from the date of the assignment court until the date of the hearing.
[35] Based on the foregoing evidence, I am persuaded that the motion was brought promptly.
Does the defendant have a plausible excuse for the delay?
[36] The law will not ordinarily allow an innocent client to suffer from his lawyer's inadvertence: Marché D'Alimentation Denis Theriault Ltée v. Giant Tiger Stores Ltd. (2007), O.R. (3d) 660 (Ont. C.A.), at para. 28. The plaintiffs argue that Royer is not entirely innocent in this case. I am not persuaded that is true.
[37] There is no question that Royer acted with dispatch in doing what he could to defend against the claims made in the first two statements of claim he received. Although Royer’s lawyer’s office could not locate the next two claims (the Wunsch and Minor Estate actions), I am satisfied from the memo of February 24, 2009 that Royer also provided those claims to his lawyer as soon as he received them.
[38] Notwithstanding the fact that there is no evidence in the lawyer’s file to support it, I accept Royer’s evidence that he also brought the Minor Family claim to his lawyer. This is what he did with all of the other claims. There is no reason to believe that he would not do the same with this one. The law firm employee to whom I referred earlier deposed that Royer came into the office on more than one occasion to drop off documents, although she cannot recall specifically what those documents were. The fact that there is no copy of the Minor Family claim in the lawyer’s file means nothing, given that the office also could not locate the Wunsch and Minor Estate claims, which the February 24 memo says the office received.
[39] Counsel for the plaintiffs submits that Royer, too, should have been prompted to do more to defend the actions because, after providing the statements of claim to his lawyer, he was served with the following additional materials:
(1) on September 8, 2009, the defendant Board of Funeral Services served Royer with a motion record in which the board sought an order dismissing the claim against it;
(2) on January 18, 2010, Royer was served with copies of five statements of defence and crossclaim by the lawyers representing the defendant, Forest Lawn Crematorium; and
(3) according to plaintiffs' lawyer, on December 18, 2011 he served Royer with a Notice of Examination for discovery.
[40] I am not persuaded that all of these documents were served on Royer. With respect to those that were, I do not believe that Royer was required to do anything more than he did after receiving them. I will deal with these documents in a somewhat different order than that in which they are listed above.
[41] Royer deposes that he does not recall receiving the funeral board's motion materials. Oddly, the affidavit of service with respect to these documents indicates that he was served at an address directly across the street from the courthouse in North Bay, whereas he was served with or received virtually every other document, both before and after September 8, 2009, at an address in Hamilton. In any event, regardless of whether Royer was served with the motion materials or not, those materials did not require either Royer or his lawyer to do anything. The motion involved only the plaintiffs and the crematorium.
[42] Royer deposes he does not recall receiving the plaintiffs' Notice of Examination. I accept this evidence. According to the plaintiffs’ lawyer’s evidence, the notice was served by mail. I am told that, during his cross-examination, Royer testified that he was living with a group of people at the time the notice would have been served. It is not hard to accept that it might not have come to Royer’s attention in those circumstances.
[43] Further, the suggestion that Royer received the notice and did nothing about it is inconsistent with the rest of the evidence. According to the evidence of the law office employee, Royer would call the office on occasion and would speak to the receptionist to obtain an update on his matters. It would be inconsistent with this evidence for Royer to simply ignore a Notice of Examination.
[44] Unlike the motion materials and the Notice of Examination, Royer’s lawyer’s file does contain copies of the defences and crossclaims of the crematorium. Royer's lawyer received copies of these documents on January 25, 2010, about a week after they were served on Royer. Neither the lawyer nor his employee can say how he got them. Based on the timing and the evidence that Royer provided documents on several occasions to his lawyer's office, I believe that he obtained them from Royer himself. Royer testified during his cross-examination that he only lived about five doors down from his lawyer’s office. It would not have taken much for him to drop the documents off. Further, the letter from the crematorium's lawyers that accompanied the crossclaims does not indicate that it was copied to Royer's lawyer, as one might expect if they were both serving the documents personally on Royer and providing his lawyer of record with a copy.
[45] For these reasons, I believe that Royer did what a reasonable client would do with respect to the documents that he did receive. However, even an innocent client may suffer for his lawyer's sins where the lawyer's failure to act extends beyond mere inadvertence, to negligence: Marché D'Alimentation, at paras. 29-31. In those circumstances, where the innocent client may have a claim against his own lawyer, the law is less forgiving and may allow liability for the lawyer’s failure to act to "flow through" the innocent client to the lawyer.
[46] The plaintiffs argue that Royer's lawyer's conduct in its entirety amounted to negligence. They submit that he ought to have followed up when he heard nothing from the plaintiffs' lawyer in response to his letter of January 19, 2009. They also submit that he should have reacted when he received the additional statements of claim from his client and when he received the crossclaims of the funeral board. For the purposes of this motion, I agree.
[47] However, I am concerned in this case about the conduct of the plaintiffs' lawyer, as well. He should have responded immediately to Royer's lawyer's letter, which the plaintiffs' acknowledge he received. Further, in my view, he ought to have asked Royer's lawyer if he would accept service of the additional statements of claim, or at least provided him with copies as a courtesy. Unquestionably, as I will explain below, he ought to have advised him before noting Royer in default. Had he done so, one has to hope that even a lawyer as negligent as Royer's might be would have been prompted to act. For this reason, I do not believe that the decision in Marché D'Alimentation should govern. Nothing the successful party's lawyer did or did not do in that case caused or could be said to have contributed to the negligence of the other party's lawyer. That cannot be said here.
[48] For these reasons, I conclude that Royer has a plausible excuse for the delay.
Does the defendant have an arguable defence on the merits?
[49] The plaintiffs argue that Royer has no arguable defence on the merits. They ask me to consider what he said during his interview with the police. They point out that Royer referred to his relationship with Smith as that of an employer and his employee.
[50] Royer did refer to his relationship with Smith during the interview as one of employer-employee. However, Royer deposes that, after he and Smith resumed cohabitation, he was employed as a bank teller, at a call centre and as a cleaner at a hotel. In 2004, he and Smith purchased a movie theatre in Mattawa and Royer deposes that he then spent most of his time running the theatre. Even during the interview, he made it clear that his paid employment was outside of the funeral home.
[51] Further, during the cross-examination on his affidavit, Royer undertook to review the video of his interview and to advise if he disagreed with the version of events he provided to the police. In fulfillment of that undertaking, Royer advised that he did not disagree with anything he had said during the interview, but he clarified that when he first moved to Mattawa in 1999, he worked for a local TV station owned by Smith and that when he worked at the funeral home he was never paid and had no ownership interest in it. He confirmed that he was never paid by Smith for his work there.
[52] Royer's evidence is confirmed by two witnesses. The first is Smith himself. In a signed statement dated April 24, 2019 Smith states that Royer was not a paid employee of the funeral home, never completed any tasks at the funeral home for which he would need to be licensed with by the Board of Funeral Services, and was never involved in the care or handling of bodies.
[53] The second witness is a lady named Joeann Ribout. She is anticipated to give evidence that, like Royer, she was also a volunteer at the funeral home. She never saw Smith pay Royer and never saw Royer enter the embalming area of the funeral home. She was not aware of any of the criminal activity of Smith, including his failure to properly embalm his victims. Based on this evidence, I fail to see how it can be argued that Royer ought to have known of Smith's criminal activities, let alone to have participated in them.
[54] In support of their argument that Royer has no arguable defence on the merits, the plaintiffs ask, rhetorically, how Royer could not have smelled the decaying bodies of Smith's victims. I believe the answer is obvious.
[55] Royer deposes that, from the time he and Smith reconciled in 2002, they lived together in a home on Pine Street in Mattawa until they separated in 2007. The earliest of the deceased victims died in 2002, after they stopped living above the funeral home. The others died after 2006. Therefore, he would not have noticed the smell of rotting bodies where he lived.
[56] As for smelling the rotting bodies at the funeral home, it would appear from the evidence that no one who attended a funeral at the funeral home ever noticed it, nor did Ribout, who volunteered there. I fail to see why Royer would be expected to notice when no one else did.
[57] I am quite satisfied that Royer has an arguable defence on the merits. Even if I was not, I would not dismiss the motions on this basis. As I will explain when I discuss the effect on the integrity on the administration of justice, the merits of the defence matter less where the noting in default is caused or contributed to by opposing counsel acting or failing to act in contravention of the standards of the legal profession. That is what happened here.
What is the potential prejudice to the parties?
[58] The potential prejudice to Royer is obvious: he owes a staggering sum of money under the judgments in question. The morally reprehensible nature of the alleged behaviour on which the judgments are based is also relevant: B. (A.J.) v. Denomme, 2013 ONSC 1127, at para. 26.
[59] The plaintiffs argue that there is a presumption that they have suffered prejudice by the passage of an inordinate amount of time since they commenced their actions. They rely on the decision in Tanguay v. Brouse, 2010 ONCA 73. Tanguay was a case in which the issue was whether the defendants, not the plaintiffs, were prejudiced by the passage of time due to the plaintiffs’ delay in moving the action forward. It must be remembered that, in cases were an action is dismissed for want of prosecution, there is an element of fault on the part of the plaintiffs for the delay.
[60] I am prepared to accept the notion that delay in seeking to set aside a default judgment might give rise to a presumption of prejudice to the plaintiffs. However, in my view, the degree to which the presumption is applied should be commensurate with the degree of fault of the part of the defendant for the delay. In Tanguay, the plaintiffs were responsible for all of the delay. Most of the delay in this case was not caused by Royer or his lawyer.
[61] Notwithstanding the fact that Royer was served with the last of the statements of claim in August 2009, he was not noted in default until roughly two years later, on July 14, 2011. The plaintiffs’ lawyer did not move for judgment for a further five years after that. While I accept that, in the period between 2009 and 2016, the claim against the funeral board was dismissed on a summary judgment motion and the claim against the crematorium was settled, it cannot be said that the delay involved was the fault of Royer or his lawyer. In these circumstances, it would be inappropriate to apply a presumption of prejudice in favour of the plaintiffs.
[62] The plaintiffs also contend that they can demonstrate actual prejudice. Many of the plaintiffs are old, some as old as 82. Four plaintiffs have passed away since the action was commenced. However, as Ms. Lucenti points out, one plaintiff died before Royer was noted in default and two died before the default judgment was obtained.
[63] The plaintiffs argue that the evidence of the plaintiffs who have passed away is lost. And yet, unlike the evidence of the witnesses such as Smith and Ribout, I have not been provided with any indication of what that evidence might be. Without that information, I am not prepared to find that the plaintiffs have suffered actual prejudice because of lost evidence.
[64] The plaintiffs have introduced the evidence of one witness, Patty Boudreau, a plaintiff in the Minor Estate action. She deposes that the claim against the crematorium was settled for a nominal sum, in large part, to bring finality to the litigation. She deposes that it is “unbearable” to think of the “reopening” of the case.
[65] I do not wish to discount the importance of finality in litigation: Marché D’Alimentation, paras. 37-38. However, in this case, given the plaintiffs’ lawyer’s failure to give notice before noting Royer in default, I believe that the integrity of the administration of justice will suffer significantly if the default judgment is not set aside, as I will now explain.
What will the effect be on the overall integrity of the administration of justice?
[66] The Rules of Professional Conduct of the Law Society of Ontario govern the conduct of lawyers in the province. Rule 7.2-2 provides that:
A lawyer shall avoid sharp practice and shall not take advantage of or act without fair warning upon slips, irregularities, or mistakes on the part of other legal practitioners not going to the merits or involving the sacrifice of a client’s rights.
[67] The Advocates’ Society is an organization representing barristers of all types in Ontario. Unlike membership in the Law Society, membership in the Advocates’ Society is voluntary. Nonetheless, the Advocates’ Society is widely regarded as setting the standards for advocates in the province. Section 19 of the Advocates' Society's The Principles of Civility for Advocates has been endorsed by the Ontario Court of Appeal on a number of occasions (see, for example, Male v. The Business Solutions Group, 2013 ONCA 382, at para. 19). It provides:
Subject of the Rules of Practice, advocates should not cause any default or dismissal to be entered without first notifying opposing counsel, assuming the identity of opposing counsel is known.
[68] By virtue of these standards, the plaintiffs’ lawyer in this case should have warned Royer’s lawyer that he intended to note Royer in default. I accept that the plaintiffs' lawyer simply forgot about Royer's lawyer's letter so long after it had arrived. I also accept that, had he remembered it, he would have provided him with notice of his intention to note Royer in default. The point is not that the plaintiffs’ lawyers conduct was intentional; it was not. The point is that it would be unfair to allow the plaintiffs’ judgments to stand in the face of it. To do so would harm the integrity of the administration of justice and would do so to a far greater extent than the degree to which the plaintiffs’ will be prejudiced if the judgments are set aside.
CONCLUSION
[69] For the reasons expressed above, the noting in default and the default judgments are set aside. So, too, are the writs of execution.
[70] Royer will have 30 days from the date of these reasons within which to deliver statements of defence.
[71] If the parties are unable to agree on costs, they may make written submissions, limited to five type-written pages, exclusive of attachments, as follows:
(a) on behalf of Royer, within 30 days of the release of these reasons; and
(b) on behalf of the plaintiffs, within 20 days of the receipt of the submissions made on behalf of Royer.
Ellies R.S.J.
Released: December 20, 2019
COURT FILE NOS.: 4504-08, 4520-08, 4553-08, 4582-09, 4694-09
DATE: 2019/12/20
ONTARIO SUPERIOR COURT OF JUSTICE
B E T W E E N
SHELLY CONDIE, SANDRA BRENNAN, SUSAN SEGUIN, SHARON MOFFATT, DANNY CONDIE, DENIS CONDIE and DELMER CONDIE
Plaintiffs
- and –
TIMMY LYNN SMITH, T.L. SMITH FUNERAL HOME, MICHAEL ROYER, BOARD OF FUNERAL SERVICES and 1189229 ONTARIO LIMITED, carrying on business as FOREST LAWN CREMATORIUM
Defendants
- and –
B E T W E E N
THE ESTATE OF ALFRED SARRAZIN, RICHARD SARRAZIN as Litigation Administrator of the Estate of CLAIRE SARRAZIN, MICHEL SARRAZIN, DIANE MURRAY, MONIQUE DODIER, PIERRE SARRAZIN, GERARD SARRAZIN, RICHARD SARRAZIN, MAURICE SARRAZIN, ROMEO SARRAZIN, JEANNINE DOOL AND JACQUELINE PATRIE
Plaintiffs
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TIMMY LYNN SMITH, T.L. SMITH FUNERAL HOME, MICHAEL ROYER, BOARD OF FUNERAL SERVICES and 1189229 ONTARIO LIMITED, carrying on business as FOREST LAWN CREMATORIUM
Defendants
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B E T W E E N
VICTORIA WUNSCH, JACQUELINE WUNSCH, ETHAN WUNSCH, VICTORIA WUNSCH as Litigation Administrator of the Estate of BRAUN WUNSCH, COURTNEY WUNSCH and CASEY WUNSCH
Plaintiffs
- and –
TIMMY LYNN SMITH, T.L. SMITH FUNERAL HOME, MICHAEL ROYER, BOARD OF FUNERAL SERVICES and 1189229 ONTARIO LIMITED, carrying on business as FOREST LAWN CREMATORIUM
Defendants
- and –
B E T W E E N
THE ESTATE OF AUGUSTIN LEONARD MINOR, MARK MINOR, MICHELINE MORIN, PATTI BOUDREAU, SUZANNE MICHAUD AND LILA MINOR
Plaintiffs
- and –
TIMMY LYNN SMITH, T.L. SMITH FUNERAL HOME, MICHAEL ROYER, BOARD OF FUNERAL SERVICES and 1189229 ONTARIO LIMITED, carrying on business as FOREST LAWN CREMATORIUM
Defendants
- and –
B E T W E E N
CLAUDE MINOR, THEODORE MINOR, PAULINE MORIN, PAULETTE SOUCIE, MARIE MARTIN, and GERARD SKELLING as Litigation Administrator of the Estate of CLAIRE SKELLING
Plaintiffs
- and –
TIMMY LYNN SMITH, T.L. SMITH FUNERAL HOME, MICHAEL ROYER, BOARD OF FUNERAL SERVICES and 1189229 ONTARIO LIMITED, carrying on business as FOREST LAWN CREMATORIUM
Defendants
REASONS FOR DECISION
Ellies R.S.J.
Released: December 20, 2019