Court File and Parties
COURT FILE NO.: CV-21-88024
DATE: 2022/10/11
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Neda Raji, Plaintiff (Respondent)
AND
The Attorney General of Canada, City of Ottawa, Ottawa Police Service Board, Police Constable Todd Clark, Police Constable Samantha Raffa, Police Constable Anthony Carmo, Police Constable Amanda Budzinski, Police Constable Wood, Police Constable Ryan Carmo, Police Constable Perron, Police Sargeant Levesque, Police Chief Peter Sloly and Stephen Leach, Defendants (Moving Parties)
BEFORE: Justice Sylvia Corthorn
COUNSEL: Neda Raji, Self-represented Plaintiff Andrew Newman, for the Defendant, Attorney General of Canada Michelle Doody, for the OPS Defendants[^1] Michael Saad, for the Defendant, Stephen Leach
HEARD: September 6, 2022
RULING
Introduction
[1] The plaintiff, Neda Raji, alleges that she was falsely arrested, improperly detained, and a victim of abuse, harassment, and malicious prosecution. Ms. Raji seeks compensation in excess of $19,000,000, including $8,000,000 in general damages, $8,000,000 in punitive and/or exemplary damages, and $3,000,000 in aggravated damages. Ms. Raji also seeks special damages in an unspecified amount. Last, Ms. Raji seeks damages, in an unspecified amount, pursuant to s. 24(1) of the Canadian Charter of Rights and Freedoms.
[2] The statement of claim is over 80 pages and 158 paragraphs long.
[3] In January 2022, the Attorney General of Canada requested that Ms. Raji’s action be dismissed under r. 2.1.01 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. The Attorney General of Canada is named as a defendant, but there are no references to it in the body of the statement of claim. In April 2022, the request for dismissal of the action under r. 2.1.01 was dismissed: Raji v. A.G. Canada (12 April 2022), Ottawa, CV-21-88024 (Ont. S.C.) (“the Endorsement”).
[4] On July 18, 2022, Ms. Raji noted all of the defendants in default. The defendants’ collective position is that Ms. Raji took that step without first giving them notice of her intention to do so.
[5] The defendants seek to have the noting in default set aside. In total, there are three motions before the court (collectively, “the Motion”). For the reasons that follow, I find that it is in the interests of justice to set aside the noting in default and for Ms. Raji’s claims to be determined on their merits.
Chronology of the Litigation
[6] The statement of claim was issued in late 2021. There is no evidence that any of the defendants were served with the statement of claim in a manner that complies with r. 16. Regardless, the defendants do not raise any issues related to service of the originating process.
[7] Set out below is a chronology of the action from December 2021 to September 2022:
December 1 - The statement of claim is issued.
December 8 - Ms. Raji sends a copy of the statement of claim by email to various email addresses related to the City of Ottawa, the Ottawa Police Service, and Mr. Leach’s office (the Independent Police Review Director).
December 17 - Ms. Raji provides the OPS defendants with a notice of motion in writing in which she requests an order for the production, from a non-party, of Crown briefs and police files (r. 30.10).
January 6 - The OPS defendants serve Ms. Raji with a notice of intent to defend. The Attorney General of Canada becomes aware of the action for the first time; it receives a copy of a notice of intent to defend served on behalf of one or more of the co-defendants.
January 7 - Stephen Leach serves Ms. Raji with a notice of intent to defend. In the cover letter to that document, counsel for Mr. Leach informs Ms. Raji as follows:
• The notice of intent to defend is served solely for the purpose of preserving Mr. Leach’s rights in the litigation;
• Mr. Leach enjoys statutory immunity pursuant to the Police Services Act, R.S.O. 1990, c. P.15; and
• If Ms. Raji does not discontinue the claim against Mr. Leach, he will move to have the claim struck.
January 7 - Ms. Raji sends four email messages to Mr. Leach’s counsel – all of which are sent after 6:00 p.m. In the messages, amongst other things, Ms. Raji says,
• “If you fail to put forth a defence then you accept the risk. I will note [Mr. Leach] in default. No rights are guaranteed then.”
• “If you fail to defend the joke is on you. You are clearly stating that you will not defend in your notice of intent to defend. Your notice of intent to defend is moot. It is invalid. I will have [Mr. Leach] noted in default then.”
• “Can you please write back and acknowledge that you accept and understand that Mr. Leach as well as Attorney General and the Crown Attorneys will be noted in default despite your notice of intent to defend.”
• “Please him file a statement of defense or I will turn him into salt.” (This sentence appears as it does in the original.)
January 10 - The Attorney General of Canada files a requisition under r. 2.1.01 requesting that Ms. Raji’s claim be dismissed.
January 27 - The court issues an endorsement giving Ms. Raji notice that it is considering making an order dismissing the claim. Ms. Raji is given 15 days to file written submissions, addressing why the claim should not be dismissed. The action is stayed, pursuant to s. 106 of the Courts of Justice Act, R.S.O. 1990, c. C.43, pending release of the court’s decision on the r. 2.1.01 request.
February 22 - The plaintiff files her written submissions.
March 21 - The OPS defendants deliver a notice of change of lawyer.
April 12 - The Endorsement is released and the request under r. 2.1.01 is dismissed.
April 19 - The Attorney General of Canada serves Ms. Raji, the OPS defendants, and Mr. Leach with a notice of intent to defend.
April 20 - The Attorney General of Canada serves Ms. Raji, the OPS defendants, and Mr. Leach with a notice of change of lawyer.
July 18 - Ms. Raji requests that all of the defendants be noted in default.
July 19 - Counsel for the Attorney General of Canada learns that, on July 18, Ms. Raji requested that all defendants be noted in default.
July 20 - Counsel for the Attorney General of Canada sends a letter, by email, to Ms. Raji setting out his client’s position, as follows:
• Ms. Raji failed to comply with s. 25 of the Crown Liability and Proceedings Act, R.S., 1985, c. C-50, which sets out the requirements for default proceedings against the Crown; and
• The Attorney General of Canada intends to move to set aside the noting in default.
July 25 - Counsel for the defendants collectively prepare a draft notice of motion for a motion to set aside the noting in default. On behalf of all defendants, counsel for the OPS defendants communicates with the court to ascertain available dates for the Motion to be heard.
July 26 - The court responds to the July 25 inquiry, providing dates on which the Motion may be heard.
July 27 - On behalf of all defendants, counsel for the OPS defendants (a) informs Ms. Raji that the defendants intend to bring the Motion, and (b) requests that Ms. Raji consent to an order setting aside the noting in default or advise as to her availability for the Motion to be heard. Ms. Raji does not respond.
August 3 - Counsel for the OPS defendants writes to Ms. Raji again and requests a response by August 8 as to her availability for the Motion to be heard.
August 8 - Ms. Raji sends an email to counsel for the OPS defendants advising that she will, by the end of the same day, provide her availability for the Motion to be heard. She does not do so.
August 9 - The defendants begin to take the steps necessary to schedule the Motion and deliver their respective materials.
[8] Having received no response from Ms. Raji, the defendants schedule the Motion to be heard on September 6, 2022. The requisite materials are served on Ms. Raji. She does not pursue cross-examination of any of the individuals whose affidavits are included in the records served, nor does she deliver responding materials.
[9] There is communication between counsel for the defendants and Ms. Raji between August 9 and September 6, 2022. That communication is not, however, relevant to the determination of the substantive issues on the Motion.
[10] Ms. Raji attends on the return of the Motion on September 6, 2022. She informs the court that, on that morning, she uploaded several documents to Caselines. Those documents do not include either (a) an affidavit in response to any of the moving parties’ respective affidavits, or (b) a factum in response to the facta delivered in support of the Motion. The possibility of an adjournment is canvassed with Ms. Raji. She informs the court that she is not requesting an adjournment and is prepared to make responding submissions.
[11] The Motion is heard on September 6, 2022.
The Issue
[12] The sole issue to be determined is whether it is in the interests of justice to set aside the noting in default.
The Law
[13] Rule 19.03(1) provides that a “noting of default may be set aside by the court on such terms as are just.”
[14] At para. 13 of Intact Insurance Company v. Kisel, 2015 ONCA 205, 125 O.R. (3d) 365, the Court of Appeal for Ontario sets out a non-exhaustive list of factors for a court to consider in determining whether to exercise its discretion, under r. 19.03(1), to set aside a noting in default. The list includes the following factors:
• The context and factual situation;
• The behaviour of the parties;
• The length of the delay on the defendant’s part and the reasons for it; and
• The complexity and value of the claim.
[15] In the same paragraph, the Court highlights that, in some decisions, the court also considered whether a party who relied on the noting in default would be prejudiced if the noting in default is set aside.
[16] Also, at para. 13 of Kisel, the Court highlights that “[o]nly in extreme circumstances, however, should the court require a defendant who has been noted in default to demonstrate an arguable defence on the merits.”
[17] Where the moving party has not caused undue delay in the proceeding and has demonstrated a bona fide intention to defend, the noting in default should be set aside without requiring the moving party to satisfy the court that it has a good defence on the merits: see Hart v. Kowall (1990), 1990 CanLII 6700 (ON SC), 75 O.R. (2d) 306, at pp. 2-3.
[18] In McNeill Electronics Limited v. American Sensors Inc. (1996), 5 C.P.C. (4th) 266 (Ont. Gen. Div.), reversed on other grounds (1998), 1998 CanLII 17693 (ON CA), 108 O.A.C. 257 (C.A.), Molloy J. reviews the broad principles applicable to motions to extend time for the delivery of pleadings and to relieve against defaults. At p. 2, Molloy J. notes that such motions “are frequently made and are typically granted on an almost routine basis.”
[19] On the same page, Molloy J. emphasizes that “[i]t is not in the interests of justice to strike pleadings or grant judgments based solely on technical defaults. Rather, the Court will always strive to see that issues between litigants are resolved on their merits whenever that can be done with fairness to the parties.” The latter passage is cited favourably by the Court of Appeal for Ontario in Nobosoft Corp. v. No Borders Inc., 2007 ONCA 444, 225 O.A.C. 36, at para. 7.
The Positions of the Parties
[20] Collectively, the defendants submit that they always intended to defend the claims on their merits, have not caused any undue delay in the proceeding, and acted promptly to have the noting in default set aside. The defendants also emphasize that Ms. Raji gave them no notice of her intention to note them in default.
[21] Ms. Raji submits that Mr. Leach has, since January 7, 2022, been aware of her intention to note him in default. Ms. Raji relies on her email communication on that date with Mr. Leach’s counsel. In opposing the Motion more generally, Ms. Raji submits that if the noting in default is set aside, the defendants will take steps – such as a motion to strike her claim or some other motion – that will result in a re-litigation of the issues that were before the court on the r. 2.1.01 request made by the Attorney General of Canada.
Analysis
[22] There is nothing “extreme” about the circumstances of this litigation generally or in which the Motion is brought. As a result, it is not necessary to consider, on their merits, the defendants’ respective defences to Ms. Raji’s claims. I therefore turn to the factors listed in Kisel.
▪ The Context and Factual Situation
[23] In para. 11 of the Endorsement, the court notes that, in her statement of claim, Ms. Raji describes “in great detail, a long complex history of interactions with the police, the justice system, mental health resources, her landlord, the police complaints system, and ‘TR’, a man with whom she had an altercation prior to her arrest”.
[24] At para. 13 of the Endorsement, the court highlights two paragraphs, from the 158-paragraph document, that are “relevant and relatively cogent”. Those paragraphs relate to an incident several days after January 23, 2019, and an incident on March 13, 2020. In those two paragraphs, Ms. Raji makes allegations against two of the ten individual members of the Ottawa Police Service who are named as defendants.
[25] The defendants named in the title of proceeding are from three levels of government – municipal, provincial, and federal. Ms. Raji advances at least five causes of action (see para. 1, above).
[26] I find that the context of the claim, including the involvement of defendants from three levels of government, and the factual situations contribute to my conclusion that it is in the interests of justice to set aside the noting in default and to have Ms. Raji’s claims determined on their merits.
▪ The Behaviour of the Parties
[27] There is no evidence that any of the defendants was properly served with the statement of claim. Yet, on the Motion, none of the defendants raises the lack of proper service as a factor for the court to consider. To the contrary, when the court raised the issue, the defendants informed the court that they do not raise any issues with respect to service of the statement of claim.
[28] Properly served or not, upon being made aware of the existence of Ms. Raji’s statement of claim, the defendants informed Ms. Raji of their respective intention to respond to and defend the claims. Notices of intent to defend were served by all defendants. The Attorney General of Canada also responded by making a request under r. 2.1.01 for the action to be dismissed. Those steps were taken no later than the first two weeks of January 2022.
[29] I find that it has been clear to Ms. Raji, since no later than the first two weeks of January 2022, that all defendants intend to defend the claims on their merits.
[30] I turn next to consider the conduct of Ms. Raji. As a self-represented litigant, Ms. Raji may not be aware of common practices and courtesies extended between ethical counsel. For example, it is both a common practice and a courtesy to provide opposing counsel with (a) notice of an intention to note a party in default, and (b) a deadline by which to serve a statement of defence or take a next step, failing which the party will be noted in default.
[31] By failing to communicate with all counsel in that regard, Ms. Raji deprived the defendants of the opportunity to deliver a pleading, deliver a motion record (motion to strike or otherwise), or arrange a case conference at which to discuss and set deadlines for the next steps in the litigation. Ms. Raji’s failure to give the defendants notice of her intention to note them in default contributes to my conclusion that it is in the interests of justice to set aside the noting in default and have Ms. Raji’s claims determined on their merits.
[32] In concluding that Ms. Raji did not give the defendants notice of her intention to note them in default, I do not overlook the contents of her emails to Mr. Leach’s counsel on the evening of January 7, 2022. It is clear from the contents of those emails that Ms. Raji does not understand the litigation process or the purpose of a notice of intent to defend. While she did, in those emails, identify that she intended to note Mr. Leach in default, that type of communication does not meet the standard of or accord with the common practices and courtesies discussed in the preceding paragraphs.
[33] In any event, Ms. Raji’s January 7, 2022, emails were sent only to Mr. Leach’s counsel. The emails do not constitute notice of any kind to either the Attorney General of Canada or the OPS defendants.
[34] Ms. Raji’s failure to communicate with all defendants as to her intention to note them in default and with a deadline by which to respond to her statement of claim contributes to my conclusion that it is in the interests of justice to set aside the noting in default and permit Ms. Raji’s claims to be determined on their merits.
▪ The Defendants’ Delay and the Reasons for it
[35] In the court’s initial endorsement following receipt of the r. 2.1.01 request, the court ordered that Ms. Raji’s action was stayed, pursuant to s. 106 of the Courts of Justice Act, pending the court’s final decision on the request or a further order. In addition, the court ordered that “the Registrar shall not permit any party to file any procedures or documents except in accordance with this endorsement, and no dates for motions shall be scheduled”: see Raji v. Attorney General of Canada (27 January 2022), Ottawa, CV-21-88024 (Ont. S.C.). I therefore take into account that the action was stayed for a period of approximate 2.5 months – from January 27 to April 12, 2022 (the latter is the date on which the Endorsement was released).
[36] I make the following findings with respect to the period from January 27 to July 18, 2022 (the latter is the date on which the defendants were noted in default):
a) During the 2.5-month period in which the action was stayed, it was reasonable for the defendants to take a wait-and-see approach. By doing so, they were potentially avoiding incurring costs unnecessarily – for example, costs related to the preparation of a pleading that might not be required;
b) In the absence of any communication from Ms. Raji following April 12, 2022, it was reasonable for the defendants to believe that they had time to review the lengthy and detailed statement of claim, determine how they would respond to it, and prepare responding materials (whether in the form of a statement of defence and/or a motion record); and
c) In general terms, the delay, from April 12 to July 18, 2022, is neither unusual nor inordinate in litigation which involves multi-million dollar claims, multiple defendants, and multiple causes of action.
[37] Turning to the period from July 18, 2022 forward, I find that all of the defendants acted with dispatch after learning that they had been noted in default. The defendants expeditiously took steps towards having the noting in default set aside.
[38] In summary, delay, and the reasons for it, are not factors which weigh against granting the relief requested by the defendants.
▪ The Complexity and Value of the Claim
[39] The complexities and value of the claims advanced by Ms. Raji have already been addressed. These factors also contribute to my conclusion that it is in the interests of justice to set aside the noting in default and permit Ms. Raji’s claims to be determined on their merits.
▪ Reliance on the Noting in Default and Resultant Prejudice
[40] In addition to relying on the common practices and courtesies discussed above, the Attorney General of Canada relies on s. 25 of the Crown Liability and Proceedings Act, R.S.C. 1985, c. C-50 (“the CLPA”). It provides that, “[i]n any proceedings against the Crown, judgement shall not be entered against the Crown in default of appearance or pleading without leave of the court obtained on an application at least fourteen clear days’ notice of which has been given to the Deputy Attorney General of Canada.”
[41] There is no evidence that Ms. Raji,
a) took any steps in an effort to comply with s. 25 of the CLPA;
b) relied in any manner whatsoever on the noting default; and/or
c) will suffer prejudice if the noting in default is set aside.
[42] These factors do not weigh against granting the relief requested by the defendants.
Disposition
[43] In summary, upon consideration of the relevant factors, I find that it is in the interests of justice to set aside the noting in default and to permit Ms. Raji’s claims to be determined on their merits. I make the following order:
The noting in default of all defendants is set aside;
The defendants shall, within 30 days of the date of this endorsement, serve their respective statements of defence and/or a notice of motion for a motion to strike or some other form of relief; and
If, after more than 30 days from the date of this endorsement, the plaintiff intends to note one or more of the defendants in default, she shall (a) inform the defendant(s), in writing, of her intention to do so, and (b) provide the defendant(s) with at least 14 days’ notice of the date on which she intends to note the defendant(s) in default.
[44] If more than one of the Attorney General of Canada, Stephen Leach, and the OPS defendants intends to bring a motion in response to the statement of claim, then the moving party defendants shall collectively secure a single date for the motions to be heard consecutively.
[45] In light of my findings with respect to Ms. Raji’s lack of understanding of the litigation process and common practices and procedures involved in that process, the requirement to obtain Ms. Raji’s approval to the form and content of the draft order to be issued based on this endorsement is dispensed with. The defendants shall submit to the court a draft order that has been approved as to form and content by their respective counsel. When the draft order is submitted, they shall provide a copy of the draft order and the related communication with the court to Ms. Raji.
Costs of the Motion
[46] Ms. Raji is not the only party who failed to communicate from January 27 to July 18, 2022. In that period, there was minimal communication from the defendants with the plaintiff.
[47] I appreciate that this observation is made with the benefit of hindsight. Regardless, it would have been prudent for the defendants, upon receipt of the Endorsement, to communicate with the plaintiff to remind her of their intention to defend the claims, attempt to agree upon a deadline for the delivery of the statements of defence or a notice of motion, and, if necessary, a case conference at which to address next steps in the litigation. Even more pro-actively, the defendants could have communicated with the plaintiff between January 27 and April 12, 2022, to remind her of their intentions in that regard.
[48] Such communication with Ms. Raji would not have been guaranteed to prevent the noting in default; the effort to communicate, if made (and Ms. Raji’s response – or lack of response – to that communication), would, however, have been another element of the parties’ behaviour for the court to consider on the Motion.
[49] There shall be no costs of the Motion.
Madam Justice Sylvia Corthorn
Date: October 11, 2022
COURT FILE NO.: CV-21-88024
DATE: 2022/10/11
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: Neda Raji, Plaintiff (Respondent)
AND
The Attorney General of Canada, City of Ottawa, Ottawa Police Service Board, Police Constable Todd Clark, Police Constable Samantha Raffa, Police Constable Anthony Carmo, Police Constable Amanda Budzinski, Police Constable Wood, Police Constable Ryan Carmo, Police Constable Perron, Police Sargeant Levesque, Police Chief Peter Sloly and Stephen Leach, Defendants (Moving Parties)
BEFORE: Justice Sylvia Corthorn
COUNSEL: Neda Raji, Self-represented Plaintiff Andrew Newman, for the Defendant, Attorney General of Canada Michelle Doody, for the OPS Defendants Michael Saad, for the Defendant, Stephen Leach
HEARD: September 6, 2022
RULING
Corthorn J.
Released: October 11, 2022
[^1]: The “OPS Defendants” or “OPS defendants” refer to all defendants other than the Attorney General of Canada and Stephen Leach.