Court File and Parties

COURT FILE NO.: CV-18-00601537 DATE: 20200702 ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

K.J., Plaintiff

– and –

The Regional Municipality of Halton and Tad Nelson, Defendants

BEFORE: F.L. Myers J.

COUNSEL: Doug Smith and Aidan Fishman, for the Regional Municipality of Halton Barry Yellin and Kayla A. Carr, for Tad Nelson

HEARD: June 30, 2020

Endorsement

[1] The plaintiff sued the defendants. She claimed that she was injured by the defendant Nelson and that the municipality is responsible for his wrongdoing.

[2] Mr. Nelson did not defend that plaintiff’s lawsuit and was noted in default.

[3] The plaintiff then settled with the municipality. As part of the settlement, the plaintiff assigned her rights against Mr. Nelson to the municipality. In addition, the municipality has its own crossclaim against him.

[4] The municipality filed a request for a short motion in writing for default judgment on the claim on behalf of the plaintiff and on its own claim against Mr. Nelson for indemnity for the amount the municipality paid to the plaintiff in its settlement with her.

[5] The court gave directions for the motion to proceed in writing and required the municipality to serve its motion material on Mr. Nelson once again.

[6] Mr. Nelson has now retained counsel. He has instructed counsel to move to set aside the noting in default so he can participate in the lawsuit. This is another example of the benefit of requiring service of a motion for default judgment despite the lack of a specific requirement for service in Rule 19 as discussed by Sanfilippo J. in Casa Manila Inc. v Iannuccilli, 2018 ONSC 7083.

[7] Mr Nelson has been convicted in criminal court concerning the incident that led to the plaintiff’s claim. Accordingly, his liability to the plaintiff is not likely to be in issue. But he might challenge the quantum of the plaintiff’s damages and the reasonableness of the settlement for which the municipality seeks indemnity against him.

[8] At counsels’ request, I convened a case conference to discuss scheduling. Mr. Nelson wants to schedule his motion to set aside the noting in default before a Master. The motion for default judgment will not go ahead if he succeeds. So, Mr. Nelson submits that there is no need to schedule that motion now as it requires a hearing before a judge.

[9] I agreed with counsel that the motion(s) should be heard orally and not in writing. As the motions may be dispositive of the claims against Mr. Nelson, in the circumstances of this case, in my opinion, he should have the opportunity to see and hear the case against him – whether in a courtroom or by videoconference.

[10] In my view, the efficient outcome is to book both motions together. This means that a judge will have to hear the motions rather than a Master hearing the motion to set aside the noting in default first. If Mr. Nelson is successful in setting aside the noting in default, then the motion for default judgment will not proceed. However, if Mr. Nelson is not able to convince the judge to set aside the noting in default, the judge will then hear the motion for default judgment. In my view, both motions require a judicial officer to understand the procedural history, the settlement details, and the pleadings. It is more efficient, affordable, and proportional to have one person hear the issues once rather than having two different judicial officers hear two separate motions.

[11] I recognize that in this case a judge will be hearing a motion that could be heard by a Master. Normally, all motions within a Master’s jurisdiction are referred to the Masters for adjudication. This practice shows appropriate respect for the expertise of Masters and it is an appropriate allocation of personnel for the court. However, judges have jurisdiction to hear all motions and, in cases such as this one, the efficiency and cost savings to the parties is an overriding factor in my view.

[12] Mr. Yellin argues that by hearing the motions together, his client’s appeal rights are prejudiced. I do not agree.

[13] If a Master refused to set aside the noting in default, the appeal from that order would go to a judge of the Superior Court, if the order is interlocutory, or to a judge of the Divisional Court if the Master’s order is found to be a final order. If the appeal judge upholds the Master’s order, then an appeal would lie to the Divisional Court (with leave) if interlocutory or, if final, from the Divisional Court to the Court of Appeal (with leave).

[14] If, instead, the motion is heard by a judge first and the judge refuses to set aside the noting in default, the appeal is to the Divisional Court (with leave) if the judge’s order is interlocutory, or to the Court of Appeal (as of right) if final.

[15] If the motion is brought before a Master first, then the defendant will arguably have “two kicks at the can” as of right. He will be entitled to argue before the Master and then a judge on a first appeal. He will always need leave to appeal to the Court of Appeal. I note however, that the first appeal hearing is not a free kick or a do-over. That is, although there is an appeal as of right from the Master to a single judge, in both appeal tracks the appellant will be faced with the considerable burden to show that the Master committed an error of law or exercised his or her discretion on wrong principles or misapprehended the evidence such that there was a palpable or overriding error. Zeitoun v. The Economical Insurance Group, 2009 ONCA 415.

[16] By contrast, if the motion is brought before a judge at first instance, then, if the refusal to set aside the noting in default is interlocutory, the defendant will need leave to appeal to the Divisional Court. However, if it is a final order, he will be entitled to appeal to the Court of Appeal free of the leave requirement that would apply if he had appealed from the Master to a judge of the Divisional Court first.

[17] To the extent that civil procedure can ever be interesting, this presents a fascinating question of tactics. Is one better off:

a. arguing the merits before a Master, having an appeal before judge limited to the appellate standard of review, and then requiring leave to appeal further; or

b. arguing the merits before a judge and having an appeal either to the Court of Appeal as of right or to the Divisional Court with leave?

[18] While this may be a question of tactics on which experienced counsel may disagree, the most important point is that it is just a question of tactics. No one draws any distinction between the capability of the various judicial officers to resolve the matter appropriately on the merits. The applicable legal test is well understood and straightforward. The choice between arguing the merits in one sitting or arguing the case piecemeal with intervening appeals is a tactical choice that ignores access to justice and the goals of the civil justice system.

[19] I can see no basis upon which it is in the interests of justice to conduct this litigation by instalments. Such old school tactics must give way to efficiency, affordability, and proportionality if civil justice is to be accessible.

[20] I note that outside judicial centres that have the benefit of available Masters, both motions would have to be heard by a judge and this would not even be an issue.

[21] Mr. Yellin argues that his client could deliver a notice of appeal after a judge refuses to set aside the noting in default and this would prevent the motion for default judgment from proceeding in any event. This argument is not correct. First, it assumes that the judge gives a decision on the motion immediately rather than hearing both motions and reserving the outcomes. But even if she did give a decision in court, the automatic stay pending appeal only applies to prevent the enforcement of orders for the payment of money. The automatic stay would not prevent the hearing of a motion for default judgment after an order refusing to set aside a default judgment is appealed. The enforcement of a default judgment, if any, would likely be stayed. But that does not affect the efficiency of the hearing of both motions together.

[22] I therefore schedule the oral hearing of both motions before a judge on September 15, 2020 for two hours in court or remotely. Mr. Nelson’s motion record will be served on the municipality by July 15, 2020. The municipality’s responding record shall be served by July 29, 2020. Reply evidence, if any, is due August 7, 2020. Cross-examinations shall be conducted by August 19, 2020. Mr. Nelson’s factum is due August 25, 2020. The municipality’s factum is due August 31, 2020.

[23] The dates in the prior paragraph may be amended on consent with no order required.

[24] Although Mr. Nelson is currently noted in default, the municipality shall provide copies of its productions and the plaintiff’s productions to his counsel. He would be entitled to ask for them on cross-examination in any event.

[25] The municipality shall be responsible to provide a folder in Sync.com as set out in the attached directions and explained in Mann v. Chac-Wai, 2020 ONSC 3428. The municipality shall provide the link to the folder on Sync.com to the Motions Coordinator when it files its Motions Confirmation Form one week prior to the scheduled hearing date.

F.L. Myers J. Date: July 2, 2020

Delivery of Written Motion Materials to an Online Document Storage Folder on Sync.com

1. All motion participants are required to make their best efforts to use the following document delivery method in addition to sending documents to the court by email. Law firms shall assist self-represented parties to name and upload their documents if requested to do so. Any party may request a case conference to discuss any problems they encounter with these rules.

2. Documents that are not uploaded onto Sync.com as required by these rules, or as otherwise allowed after a case conference, may not be read for the motion or application.

3. In addition to emailing all material to the court, all parties (or the party directed by the Triage Judge, if any) shall provide an online document storage folder at www.sync.com in which all documents will be collected and organized for the judge.

4. There is to be only one folder on Sync.com for each proceeding. All parties’ materials are to be uploaded to the same folder. See: Mann v. Chac-Wai, 2020 ONSC 3428.

5. As soon as the moving party uploads its motion record to Sync.com, it shall forthwith provide the URL or link to the opposing parties so they can access the moving party’s material and upload their own material to the folder.

6. At least one week prior to the date set for the motion, the parties will email Motion Confirmation Forms to the Motions Coordinator including the URL or link to the Sync.com folder for use by the judge to CivilUrgentMatters-SCJ-Toronto@ontario.ca.

7. Service of documents for the motion or application may be made by uploading the documents to the Sync.com folder and sending to the other parties a link to each document uploaded. Affidavits of service are not required for documents served by uploading to the Sync.com site unless the documents are not served by any other manner.

8. The Sync.com site shall contain a separate folder for material filed by each participating party. Each folder will be labelled with the filing party’s name only. Parties may upload material to their own folder only and may not alter any material uploaded by any other party except with an order of the court.

9. Each document uploaded to Sync.com shall be named using the Naming Rules set out in the Practice Advisory Concerning Civil Long Motions in the Toronto Region Effective April 3, 2018 found at https://www.ontariocourts.ca/scj/practice/practice-directions/toronto/t/civil-long-motions/

10. Pages shall be numbered sequentially within each document if practicable.

11. All documents other than factums shall be uploaded to the Sync.com site in OCR searchable PDF format.

12. Factums shall be uploaded to the sync.com in WORD format.

13. No Books of Authority containing the full text of authorities may be uploaded to the Sync.com site. Citations to all authorities relied upon are to be provided in each party’s factum to by hyperlinks to a publicly available free website such as .org.

14. Where oral argument has been scheduled for the motion, all parties are required to upload to the Sync.com folder a document labelled “Participants Sheet”, setting out (a) the names of all person who will be attending at the hearing for the party; (b) the names of counsel or the party who will be making oral submissions; (c) time estimates for each person making oral arguments; and (d) email addresses and telephone numbers for all participants which the court can access on the day or and during the hearing if necessary. If a participant cannot be contacted on the day of the scheduled hearing they may miss changes to the hearing time and have no way to provide documents to the court or to see documents provided by others, if any.

15. Each of the parties shall deliver a “Compendium” containing just the brief portions of the cases and the brief portions of the evidence to which each intends to refer during the hearing. Where portions of cases are included in the Compendium, the name of the case, citation, and the headnote from each case should be included as well. Where portions of the evidence are included in the Compendium, the first page of the document and identification of where it may be found in the record should also be provided.