SUPERIOR COURT OF JUSTICE - ONTARIO
COURT FILE NO.: CV-18-00007782-0000 (Sudbury)
DATE: 2021-07-14
RE: Faye Campeau, administrator of the estate of Raymond Campeau, deceased, Faye
Campeau, personally, and Jamie Campeau and Kevin Campeau
Plaintiffs (Responding Parties)
AND:
Her Majesty the Queen in Right of Ontario (Ministry of Labour Ontario and its
agents or servants Dan Beaulieu, Electrical/Mechanical Inspector, Jill Bennett,
Manager, Bart Albanese, Manager, Candys Ballanger-Michaud, Director, Northern Region, Sophie Dennis, Deputy Minister of Labour, and Tim Merla, Professional Engineer, Regional Engineer Professional and Specialized Services, Ontario Ministry of Labour) as represented by the Attorney General of Ontario
Defendants (Moving Parties)
BEFORE: Regional Senior Justice B. G. Thomas
COUNSEL: S. Moreau and L. Koerner Yeo, Counsel for the Plaintiffs (Responding Parties)
T. Curry, A. Parley and K. Costin, Counsel for the Defendants (Moving Parties)
HEARD: In writing.
ENDORSEMENT
Background
[1] Raymond Campeau, an employee at the Podolsky Mine, located in Norman Township in Sudbury, Ontario, was fatally injured in an accident on May 25, 2006. A coroner’s investigation took place in 2008.
[2] In 2008, the Campeau family commenced an action against Dynatec Corporation, FNX Mining Company Inc., Sheritt International Corporation, Wintech International Inc. and Engineer S.K. A notice of claim under the Proceedings Against the Crown Act, R.S.O. 1990, c. P.27, was served on the Crown on June 18, 2018. This action was commenced by statement of claim on August 24, 2018.
[3] The Crown failed to deliver a statement of defence in this action.
[4] Despite repeated efforts by the plaintiff and by the Court, the Crown continued in its failure to respond to the litigation, and it was noted in default on January 27, 2020.
[5] On January 6, 2021, Justice Gordon released his decision issuing default judgment against the Crown.
[6] The Crown learned of the default judgment on January 11, 2021. External counsel was retained and this motion to set aside the default judgment was brought on February 16, 2021.
[7] By endorsement of February 19, 2021, I assumed responsibility for this motion to set aside a default judgment as well as the noting in default. The motion was referred to me by Regional Senior Justice Ellies as, in his view, the substance of the motion needed to be determined by a judge not chambered in the Northeast Region.
[8] The Crown sought to set aside the default judgment on two grounds. The motion was vigorously opposed and the plaintiff filed extensive materials in response. The exchange of materials included opinion evidence.
[9] It was the Crown’s position that the Court did not have jurisdiction to grant the default judgment in that Justice Gordon did not provide leave prior to noting the Crown in default. (Section 18 of the Proceedings Against the Crown Act, as replaced by s. 25 of the Crown Liability and Proceedings Act, 2019, S.O. 2019, c.11, Sched. 7.)
[10] In addition, the Crown argued that the test for setting aside the default judgment had been met.
[11] The plaintiff disputed both grounds.
Resolution
[12] I have now been notified that the parties have resolved the motion and that the plaintiff will consent to the setting aside of the default judgment on terms which include substantial costs.
[13] Because of the history of this litigation, I believe it is necessary for me to explain why I endorse this resolution.
[14] Rule 19.08 of the Rules of Civil Procedure governs the setting aside of a default judgment. Rules 19.08(1) and (3) provide:
19.08(1) A judgment against a defendant who has been noted in default that is signed by the registrar or granted by the court on motion under rule 19.04 may be set aside or varied by the court on such terms as are just.
(3) On setting aside a judgment under subrule (1) or (2) the court or judge may also set aside the noting of default under rule 19.03.[^1]
[15] In Mountain View Farms Ltd. v. McQueen, 2014 ONCA 194, the Court of Appeal set out a five-part test for determining whether default judgment ought to be set aside. Under this test, the Court must consider:
i. Whether the motion was brought promptly after the defendant learned of the default judgment;
ii. Whether there is a plausible excuse or explanation for the defendant’s default in complying with the Rules;
iii. Whether the facts establish that the defendant has an arguable defence on the merits;
iv. The potential prejudice to the moving party should the motion be dismissed, and the potential prejudice to the respondent should the motion be allowed; and
v. The effect of any order the court might make on the overall integrity of the administration of justice.
[16] The question is ultimately to determine whether the interests of justice favour setting aside the default judgment. (Mountain View Farms, para. 50).
[17] First, the motion was brought promptly after the Crown learned of the default judgment. The Crown first learned about the default judgment on January 11, 2021 when the decision of Justice Gordon was posted. External counsel were retained on January 14, 2021. The Crown’s motion to set aside the default judgment was brought on February 16, 2021.
[18] Second, there is a plausible explanation for the defendant’s default in compliance with the
Rules. The delay in defending this action arose from unique and unfortunate circumstances,
compounded by an unprecedented global pandemic, and not from a lack of intention to
defend.
[19] Third, the Crown has defences to the claim, which should be adjudicated on their merits.
[20] Fourth, the balance of prejudice weighs in favour of the Crown. The plaintiffs will suffer
no prejudice that could not be addressed by the payment of costs and an expedited
proceeding.
[21] Fifth, setting aside default judgment is in the interest of the overall integrity of the administration of justice.
[22] In all the circumstances of the defendant’s default, it is clear to me that the interests of justice favour setting aside this judgment, particularly when I consider the terms arrived at by the parties.
[23] As a condition of the settlement, counsel have agreed to the redaction of certain motion material including medical information included to provide context for the explanation of the default. The information sought to be redacted impacts personal privacy and dignity and as such, constitutes an important public interest. This important public interest would be seriously at risk if the requested redactions were not made, and there is no other reasonable alternative. The benefits of this redaction far outweigh any negative effects. (Sherman Estate v. Donovan, 2021 SCC 25, paras. 38, 54 and 55). This redaction was an important condition to the resolution of this motion. The motion will now proceed as it should to be tried on its merits in open court.
[24] Having accepted that the test for setting aside the default judgment has been met, it is unnecessary for me to consider the Crown’s jurisdictional argument. However, I do not accept that argument. The fact that Justice Gordon did not specifically mention leave in his reasons does not mean he did not consider it, nor does it mean a request for leave was not included in the motion for default judgment. In fact, the motion references the relevant section which provides the leave requirement. The default judgment was appropriately granted and now will be appropriately set aside.
[25] Consistent with the terms of settlement, there will be the following order:
The default judgment of January 6, 2021 is set aside as is the noting in default of January 27, 2020.
The Crown will pay the plaintiffs their full indemnity costs for the period up to January 6, 2021, in the amount of $105,726.26 including all costs, disbursements and HST.
The Crown will pay the plaintiffs their partial indemnity costs for the period from January 6, 2021 to May 31, 2021, in the amount of $43,744.74 including all costs, disbursements and HST.
The following timetable will apply to the remaining steps in the action:
(a) Affidavits of documents to be exchanged by October 31, 2021;
(b) Examinations for discovery to be completed by January 31, 2022;
(c) The action will be set down for trial by February 28, 2022; and
(d) A party may bring a discovery motion after the action has been set down for trial, but no later than June 30, 2022, or six months before trial, whichever is sooner.
- There will be a sealing order regarding all motion materials originally filed in this motion. Copies of that material now redacted will form part of the public file.
Regional Senior Justice B. G. Thomas
Date: July 14, 2021.
[^1]: Rules of Civil Procedure, R.R.O. 1990, Reg. 194, s. 19.08