COURT FILE NO.: 21-85456
MOTION HEARD: May 25, 2021
SUPERIOR COURT OF JUSTICE - ONTARIO
BEFORE: Master Fortier
COUNSEL: Shawn Schuiteboer, self-represented Plaintiff
Jamie Macdonald, for the Defendant
E N D O R S E M E N T
1- The defendant Carleton University brings a motion for an order setting aside the noting of default in this proceeding.
Background
2- This is an action by the plaintiff seeking damages against the defendant on the grounds that the defendant improperly dealt with several complaints against the plaintiff under its Sexual Violence Policy.
3- The action was commenced on January 13, 2021 and served by email on January 19, 2021.
4- The defendant served a notice of intent to defend on January 21, 2021. On February 18, 2021, defendant’s counsel served a notice of motion to dismiss the claim as an abuse of process, or in the alternative, for failing to disclose a reasonable cause of action. The plaintiff was advised by defendant’s counsel that his office would follow up to schedule a hearing date.
5- While the plaintiff appeared to engage with the defendant’s counsel in setting a hearing date for the dismissal motion, he in fact had noted the defendant in default three business days after receiving the notice of motion. This was done without notice to the defendant.
6- The defendant did not discover that it had been noted in default until March 9, 2021. On March 11, 2021, counsel for the defendant sought the plaintiff’s consent to set aside the noting of default, failing which the defendant would have to bring a motion. The plaintiff refused to consent to setting aside the noting of default.
The Law and Analysis
7- Rule 19.03(1) of the Rules of Civil Procedure provides the court with the discretion to set aside the noting of default on such terms as are just.
8- In order to determine whether it is just to set aside the noting of default, the court must assess “the context and factual situation of the case”: Intact Insurance v. Kisel, 2015 ONCA 205 at para. 13. The factors for the court to consider include, among others, the behaviour of the plaintiff and the defendant, the length of the defendant’s delay (Intact at para. 13), whether the defendant was actively defending the case, and if so, whether the defendant was given notice of the intention to note the defendant in default: Male v. The Business Solutions Group, 2013 ONCA 382 at paras 17-18. It is noteworthy that in Male at para. 17 the court found that bringing a motion for an order staying or dismissing an action is recognized as a step in the defence of the proceeding.
9- In exercising my discretion, I find it just to set aside the noting of default for the following reasons:
a) It was clear that the defendant intended to defend the action. The defendant had served its notice of intent to defend. Furthermore, the defendant served the plaintiff with a notice of motion to dismiss the action, which, as outlined above, is recognized as a step in the defence of the proceeding.
b) The plaintiff did not provide prior notice to the defendant that he was going to note the defendant in default. Not only was this done while the defendant was actively defending the proceeding, but it was done when the plaintiff appeared to engage with defendant’s counsel in setting a hearing date for the dismissal motion.
c) The defendant moved promptly to set aside the noting of default.
d) There is no evidence before me that the plaintiff will suffer any prejudice if the noting of default is set aside.
Disposition
10- Accordingly, the defendant’s motion for an order setting aside the noting of default is granted.
11- Costs to the defendant in the sum of $2,500, inclusive of disbursements and HST, payable by the plaintiff in 30 days.
__________________________
Master Marie Fortier
DATE: June 11, 2021