Court File and Parties

COURT FILE NO.: 12879/19 DATE: 20200331 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: XING YAN, Plaintiff AND: YANTING ZHENG, Defendant

BEFORE: The Honourable Justice Robert B. Reid

COUNSEL: Defendant self-represented

HEARD: March 31, 2020 ( ex parte )

Endorsement: COVID-19 Protocol

[1] As a result of COVID-19, regular Superior Court of Justice operations are suspended at this time as set out in the March 15, 2020 Notice to the Profession, the Public and the Media by the Chief Justice of Ontario (the “Notice”).

[2] In accordance with the Notice, electronic materials were filed by the defendant through the Courthouse email address.

[3] The matter was referred to me as Triage Judge for a determination of urgency and direction as to how this matter is to proceed.

[4] I have reviewed the defendant’s undated Notice of Motion and the affidavit of Robert Blohm, sworn March 26, 2020. Mr. Blohm is the spouse of the defendant and her attorney under Power of Attorney dated March 13, 2020.

[5] The defendant was noted in default for failing to appear in response to the plaintiff’s claim. The nature of the claim is not disclosed. The defendant seeks an order setting aside the noting in default and granting the defendant 60 days to file a statement of defence.

[6] The deponent states that the defendant failed to defend in a timely way due to her absence from Canada. She has been in China where her ability to travel and communicate was constrained by the COVID-19 mitigation efforts imposed by the Government of China. Mr. Blohm also challenges the propriety of service in that the statement of claim was not served personally on the defendant but rather by mail to the defendant’s municipal address in Fort Erie when she was in China.

[7] Mr. Blohm deposes that on February 27 and 28, 2020, in advance of the defendant being noted in default on March 4, 2020, he attempted to secure the agreement of plaintiff’s counsel to an extension of time for filing the statement of defence but was not able to contact her directly.

[8] There is no indication that any steps have been taken by the plaintiff to secure judgment against the defendant.

[9] The issue before me is whether the motion is urgent, in which case it would presumably be served on the plaintiff and scheduled for a hearing by teleconference.

[10] At present, despite the fact that the Superior Court’s technological resources are thinly stretched in this unprecedented situation, arrangements may be made to conduct urgent business. Courthouses are closed. Staff are working from home. The health and well-being of the litigants, counsel, the public, the court staff and judges prevents “business as usual”. Nevertheless, the court is committed to deal with matters that are truly urgent.

[11] The Notice lists certain matters that may be deemed urgent. The issue raised in this motion is not one of those. The Notice contemplates that other matters may be deemed urgent, but directs that such matters should be strictly limited.

[12] Requests like that of the defendant are not rare. In fact, it is common in the course of litigation that parties miss deadlines and seek the court’s indulgence to extend times for taking procedural steps. In the absence of imminent consequences to the defendant’s failure to defend, this matter does not meet the criteria for hearing set out in the Notice.

[13] It is my decision that this matter is not urgent and therefore it will not be heard in advance of the court’s return to regular operations which, at the moment, is anticipated to be in early June 2020. The defendant may move for the relief claimed, on notice to the plaintiff, at that time.

[14] This decision is obviously not an endorsement of the plaintiff’s action in noting the defendant in default, nor does it presuppose the ultimate outcome of the motion when it eventually comes to court. Ideally, the parties can arrive at an agreement to permit the defence of the claim, thereby avoiding the costs and delay that may otherwise occur.

[15] Under these particular circumstances, given the temporary suspension of most court operations so that the defendant cannot move as quickly as she would like to seek permission to file her defence, the plaintiff would be well-advised not to take steps further to the defendant’s default, once he has been advised of the defendant’s request. I direct that counsel for the plaintiff be provided with a copy of this decision by the trial co-ordinator.

Reid J. Date: March 31, 2020