COURT FILE NO.: CV-20-82608
DATE: 2020/12/14
SUPERIOR COURT OF JUSTICE – ONTARIO
RE: Bruce Borer and Anise Odeh, Plaintiffs
AND
Robert Nelson, Jack Nelson, and Ruth Nelson, Defendants
BEFORE: Justice Sylvia Corthorn
COUNSEL: Douglas M. Cunningham, for the Plaintiff, Anise Odeh
Bruce Borer, Self-represented
Robert Nelson, Jack Nelson, and Ruth Nelson, Self-represented
HEARD: In writing
ENDORSEMENT
Introduction
[1] The plaintiff, Anise Odeh, brings a motion in writing for (a) an order dispensing with the requirement to note Robert Nelson in default, and (b) default judgment against Robert Nelson. In the notice of motion, Ms. Odeh proposes that the motion be heard in writing under r. 37.12.1(1) because it is made without notice.
[2] On March 10, 2020, Justice Gomery issued a Mareva order on a motion made without notice to the defendants. The parties subsequently appeared before Justice Gomery on several occasions throughout the spring and summer of 2020. Ultimately, and as a result of Robert Nelson’s repeated failure to abide by orders of the court, Justice Gomery ordered that Robert Nelson’s statement of defence be struck.
[3] As the defendants had delivered a single, statement of defence, Justice Gomery ordered that Jack Nelson and Ruth Nelson deliver an amended statement of defence. They have done so.
[4] The record on this motion for default judgment against Robert Nelson is approximately 160 pages. The motion record includes a single supporting affidavit. It is from Anna Maciel, a legal assistant with the office of counsel for Ms. Odeh (“the Maciel Affidavit”). The Maciel Affidavit is seven pages long and has 30 paragraphs, including the introductory and conclusory paragraphs.
[5] There are 10 exhibits to the Maciel Affidavit. The exhibits are primarily copies of the pleadings in the action and endorsements of Justice Gomery. I pause to note that pleadings and endorsements are part of the record in an action. As such, they should appear in the motion record as individually tabbed documents, separate from any supporting affidavit. A pleading or an endorsement in a particular matter would only appear as an exhibit to an affidavit if the affidavit is delivered in another proceeding.
[6] Although the Maciel Affidavit is the only affidavit included in the motion record, the documentary evidence upon which Ms. Odeh relies in support of the relief requested is said, at p. 7 of the notice of motion, to include “[t]he six-volume Mareva injunction motion record of the Plaintiffs (previously filed)”. That record includes affidavits from each of Bruce Borer, Anise Odeh, and Kenneth Hall. Ms. Odeh has not, however, taken any steps to place the six-volume record on the Mareva injunction before the court on this motion in writing.
[7] For a number of reasons, Ms. Odeh’s motion for default judgment and other relief cannot proceed in writing and cannot proceed without notice to the other parties to the action.
Motion in Writing
[8] Subrule 37.12.1(1) permits a party to proceed with a motion without oral argument (i.e., in writing) in limited circumstances: “Where a motion is on consent, unopposed or without notice under subrule 37.07(2), the motion may be heard in writing without the attendance of the parties, unless the court orders otherwise.”
[9] Only if a motion falls within the scope of subrule 37.07(2) can it be made in writing without notice to the other parties. Subrule 37.07(2) provides as follows: “Where the nature of the motion or the circumstances render service of the notice of motion impracticable or unnecessary, the court may make an order without notice.”
[10] There is no evidence before the court to support a finding that service of the motion record on Ms. Odeh’s co-plaintiff, Mr. Borer, or any of the defendants is either impracticable or unnecessary. It is clear that the parties, including Robert Nelson, have been before the court on a number of occasions – no doubt in response to documents served on them.
[11] As a result, Ms. Odeh may only proceed with her motion in writing if (a) it is on consent or unopposed, or (b) a finding is made by this court that service of the motion materials is impracticable or unnecessary and an order is made dispensing with the requirement to serve the motion materials on the other parties to the action.
Motion With or Without Notice?
[12] If Ms. Odeh wishes to pursue her motion without notice to the other parties, then (a) it must proceed to an oral hearing, and (b) it is incumbent upon her, either prior to or at the return of the motion, to seek relief in the form of an order dispensing with the requirement to serve the other parties with the materials for the motion for default judgment. If Ms. Odeh intends to proceed in that manner, then she must place evidence before the court in support of her request for an order dispensing with the requirement to serve the other parties.
[13] If, in the end, Ms. Odeh decides to proceed with the motion for default judgment on notice to the other parties, then she must serve the other parties with her notice of motion and the documents upon which she intends to rely in support of the relief requested.
[14] If Ms. Odeh intends to rely on the six-volume record filed in support of the Mareva injunction, it will be necessary for her to serve the other parties with that record (if she has not already done so). It will, however, not be necessary for Ms. Odeh to electronically file the six-volume record previously filed in hard copy for the purpose of the motion for a Mareva order. She may rely on the hard copy version of that record.
Factum Required
[15] Given the history of this action, the causes of action advanced, the nature of the relief requested, and the volume of materials upon which Ms. Odeh intends to rely in support of the request for default judgment, Ms. Odeh and any party who responds to the motion shall deliver a factum. If Ms. Odeh is requesting that the motion for default judgment proceed without notice to the other parties, then the factum filed on her behalf shall also address that aspect of the relief requested.
Disposition
[16] Ms. Odeh’s motion in writing is adjourned and shall proceed to an oral hearing as follows:
a) Ms. Odeh shall arrange for the motion to proceed virtually, by Zoom, before a judge for a half-day if unopposed and for a full day if opposed;
b) Ms. Odeh shall serve the other parties with a copy of this endorsement;
c) Ms. Odeh shall file a revised motion record that (a) includes copies of pleadings and endorsements (including this endorsement) from this action as separately tabbed documents, (b) is bookmarked, and (c) is electronically searchable;
d) Unless Ms. Odeh intends, on the return of the motion for default judgment, to seek an order dispensing with the requirement for service of her motion record on the other parties, she shall serve the other parties with her motion record and any other documents upon which she intends to rely in support of the relief requested;
e) If Ms. Odeh intends to rely on the six-volume record from the Mareva injunction, and she has already served those materials on the other parties, she may rely on the affidavits of service in that regard as evidence of service for the purpose of the motion for default judgment against Robert Nelson;
f) If Ms. Odeh intends to rely on the six-volume record from the Mareva injunction, she shall take the steps necessary to ensure that the hard copies of those volumes are delivered to the court at least one week prior to the date of return of the motion. Ms. Odeh is not required to electronically file the six-volume record;
g) The parties shall comply with the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 with respect to the timelines for the delivery of materials;
h) The parties shall comply with the most recent notices from the Superior Court of Justice in the East Region with respect to electronically filed documents, including that Ms. Odeh’s motion record and any responding, reply, or supplementary records shall be bookmarked and electronically searchable; and
i) With respect to the facta, the parties shall comply with the most recent notices from the Superior Court of Justice in the East Region including that case authorities and other authorities cited in the factum shall be hyperlinked. A pdf copy of a case or other authority shall be filed, as part of the factum (and bookmarked), only if the authority is not available through hyperlinking.
[17] I am seized of the matter. The motion for default judgment and any motion for procedural relief on it shall proceed before me. The costs of the motion in writing shall form part of the costs of the motion and shall be addressed in that context.
Madam Justice Sylvia Corthorn
Date: December 14, 2020
COURT FILE NO.: CV-20-82608
DATE: 2020/12/14
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: Bruce Borer and Anise Odeh, Plaintiffs
AND
Robert Nelson, Jack Nelson, and Ruth Nelson, Defendants
BEFORE: Justice Sylvia Corthorn
COUNSEL: Douglas M. Cunningham, for the Plaintiff, Anise Odeh
Bruce Borer, Self-represented
Robert Nelson, Jack Nelson, and Ruth Nelson, Self-represented
HEARD: In writing
ENDORSEMENT
Corthorn J.
Released: December 14, 2020