Court File and Parties

COURT FILE NO.: CV-20-00652139

DATE: 20211101

SUPERIOR COURT OF JUSTICE – ONTARIO

RE: WADEKAR SEECHARRAN an GAITREE SINGH Plaintiffs

AND:

RAJMOTIE VIOLET SEECHARAN and BHO J. SEECHARAN Defendants

BEFORE: Mr. Justice Chalmers

COUNSEL: S. Kabir, for the Plaintiffs P. Kim, for the Defendants

HEARD: November 1, 2021, by videoconference

ENDORSEMENT

[1] The Plaintiffs bring this action seeking damages for breach of trust, unjust enrichment and in quantum meruit. The action was issued on November 27, 2020. The Claim was served on the Defendants on December 7, 2020. The Defendants delivered a Notice of Intent to Defend on December 21, 2020, but no Defence was delivered. The Defendants were noted in default on March 3, 2021.

[2] The Plaintiffs brought a motion for default judgment, without notice. The motion came before me in writing. By endorsement dated September 3, 2021, I ordered the Plaintiffs to serve the Defendants with the default judgment motion materials. After the Defendants were served with the motion record, the Defendants brought this motion to set aside the noting in default and to permit them to deliver the Statement of Defence.

[3] It is the Defendants’ position that the failure to deliver the Defence was because of inadvertence. The Defendants filed the affidavit of Mourashka Gawri, sworn October 12, 2021. Ms. Gawri is the daughter of the Defendants, Rajmotie Violet Seecharan and Bhoj Seecharan. She states as follows:

a. Before the action was commenced, her father suffered numerous strokes and has been diagnosed with vascular dementia,

b. Ms. Gawri was appointed attorney for her father for property and personal care,

c. Her mother is suffering from Parkinson’s disease since 2019. Her mental and physical capacities have been worsening over the years,

d. On December 7, 2020, the Plaintiffs served the Statement of Claim on her parents,

e. She arranged for the delivery of a Notice of Intent to Defend which was filed on December 21, 2020,

f. On December 21, 2020, the Defendants’ lawyer, EME Professional Corporation sent a letter to the Plaintiff’s lawyer Syed Kabir requesting an extension to January 15, 2021 to deliver the Statement of Defence,

g. By letter dated December 22, 2021, Mr. Kabir agreed to the extension to deliver the Statement of Defence to January 15, 2021,

h. Ms. Gawri was unable to locate the documents necessary to respond to the claim and on January 14, 2021 EME requested a further 30-day extension,

i. The Plaintiff’s lawyer failed to respond to the request for an extension,

j. On May 14, 2021, EME became aware that the Defendant had been noted in default. EME wrote to the Plaintiff’s solicitor and requested that the noting in default be set aside. EME was advised that the Defendants had been noted in default on March 3, 2021,

k. The Defendants did not bring a motion to set aside the noting in default. The Plaintiffs proceeded with the motion for default judgment.

[4] R. 19.03 of the Rules of Civil Procedure provides that the noting in default may be set aside by the court on such terms as are just. I am satisfied that the Defendants demonstrated to the Plaintiffs that they intended to defend the action. The length of delay is not significant and there is no evidence of any prejudice to the Plaintiffs if the noting in default is set aside.

[5] I am satisfied that the Defendants are entitled to an order setting aside the noting in default. The Defendants shall deliver their Statement of Defence, within 7 days of the date of this endorsement. Mourashka Gawri, is the attorney for property for Bhoj Seecharan. She shall be appointed the litigation guardian for Mr. Seecharan pursuant to R. 7.03(2.1)(b) of the Rules of Civil Procedure.

[6] I order costs payable to Plaintiffs fixed in the amount of $500.

DATE: November 1, 2021