COURT FILE NO.: CV-15-2329
DATE: 20230207
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Randy Brown, Plaintiff
AND:
Jasvir Singh Dhaliwal and Mandeep Kaur Dhaliwal, Defendants
BEFORE: The Honourable Justice Tzimas
COUNSEL: Sylvia Guirguis, for the Plaintiff
Satish Mandalagiri, for the Defendants
HEARD: November 14, 2023
E N D O R S E M E N T
INTRODUCTION
[1] The defendants Jasvir Singh Dhaliwal (Jasvir) and Mandeep Kaur Dhaliwal (Mandeep) brought a motion for an order to set aside the plaintiff’s noting in default of August 24, 2015, the default judgment of March 7, 2019, and all enforcement proceedings. They also seek leave to file a statement of defence. Finally, they seek costs of this motion on a substantial indemnity basis.
[2] In support of their motion, the defendants submit that they only became aware of the plaintiff’s claim against them in November 2019 when Jasvir applied for a loan to buy a property and learned that he was not eligible for the mortgage because an Equifax report indicated a judgment against him. The defendants did not take any immediate steps to set aside the judgment.
[3] Instead, they said that they submitted their claim to their insurer and waited for months to find out if the claim would be covered by their insurance. The defendants said that they submitted the claim in February 2020. The insurance documents, included in the defendants’ own evidence, recorded the receipt of the claim in May 2020. Intact Insurance declined the claim in July 2021. The defendants said they only learned of that refusal in January 2022. Nonetheless, they served a Notice of Motion to set aside the judgment and related proceedings on the plaintiff in November 2021. They served the supporting affidavits to the motion in early 2022. Various scheduling difficulties postponed the hearing of the motion to November 2022.
[4] Substantively, the defendants dispute the occurrence of any accident. They contend that i) they always maintained their property; ii) they never saw any evidence of an accident; iii) the plaintiff was never a tenant at their property, as he alleged in his claim; and iv) the damages claimed by the defendant and awarded by the court were too remote and never the direct result of the accident.
[5] The plaintiff opposes the motion. In his view, the defendants’ failure to act promptly and to explain the reasons for their delayed reaction amounted to a flagrant disregard of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. On the merits of the proposed defence, the plaintiff submits that there is no air of reality to the defendants’ statement that they always maintained their home grounds. He claims that a “Property Standards Order” was issued by the City of Brampton on January 22, 2015, just eight days prior to the accident, requiring the defendants to remove forthwith all ice from walkways around the house leading to and from the entrances. As to the prejudice of denying the relief sought, the plaintiff agreed that the defendants would be prejudiced if the motion were denied, though in the absence of a meritorious defence, such prejudice would be less obvious. Finally, when considering the overall integrity to the administration of justice, the circumstances of the defendants’ overall conduct could not possibly militate in their favour.
[6] For the reasons that follow, I conclude that the defendants’ motion ought to be dismissed, with costs to the plaintiff fixed at $14,000, inclusive of disbursements and applicable taxes.
FACTS
[7] The following chronology and my review of the related evidence is relevant to my consideration of whether to exercise my discretion to set aside the noting in default, the default judgment, and the enforcement proceedings.
February 8, 2015: The plaintiff fell on the defendants’ property as he made his way to the basement apartment. He suffered various injuries.
March 11, 2015: Counsel for the plaintiff notified the defendants by registered mail of his intention to claim damages arising from the slip and fall incident. In their evidence before the court, the defendants are silent about receiving this communication.
April 13, 2015: Counsel for the plaintiff followed up on his communication of March 11, 2015 with a second registered letter to the defendants. He advised that if he did not receive a response from them by April 27, 2015, he would proceed with litigation. The defendants did not say anything in their affidavits about this second letter.
May 22, 2015: The statement of claim was issued and served personally on the defendant Mandeep, and by an alternative to personal service on the defendant Jasvir, in accordance with rule 16.03(5).
In her evidence, Mandeep adopted everything contained in Jasvir’s affidavit. She did not deny that she was served personally with the claim. Nor did she say anything about what she did with the claim once she was served.
In his evidence, Jasvir said that although the claim may have been served at his residence it never came to his attention. He explained that with the number of people living at the residence, (his wife, parents, in-laws, a niece and his children), it may have fallen through the cracks.
May 23, 2015: The plaintiff’s counsel sent a copy of the statement of claim by pre-paid firstclass mail to Jasvir at his residence. Neither Mandeep nor Jasvir said anything about ever receiving this copy of the claim. They did not deny receipt of the claim by mail.
July 7, 2015: The plaintiff’s counsel sent to the defendants by registered mail a copy of the statement of claim and a letter advising that he received instructions to note them in default and proceed to obtain default judgment. Counsel gave the defendants until July 31, 2015 to respond. The defendants were silent on whether they received any such registered mail. There was no evidence that the registered mail was returned to the plaintiff as undelivered.
August 24, 2015: Approximately five months following the issuing of the claim, the defendants were noted in default.
March 7, 2019: The plaintiff proceeded with an uncontested trial. A judgment and reasons for judgment were issued on the same day. The defendants were ordered to pay damages of $153,135, pre-judgment interest on general damages at 5% per annum, costs of $9,498, and $2,127.76 for the Ministry of Health and Long-Term Care for its OHIP subrogation.
May 30, 2019: A writ of seizure and sale was issued by the court.
November 19, 2019: The writ of seizure and sale was amended by the court and filed with the Sheriff of the Regional Municipality of Peel.
November 2019: Jasvir says he became aware of the judgment when he applied for a loan to buy a property and his real estate lawyer told him that he was not eligible for the mortgage because an Equifax report indicated a judgment against him. Jasvir did not offer any evidence on what steps he took to respond to the judgment. All he said in his affidavit was that he took all necessary steps to inquire with his insurance company about coverage for the claim. He said he provided details of his insurance to the plaintiff’s counsel. He also “made several efforts and inquiries with my insurer at various points of time but never got a response, that I am either covered or declined from the insurer.” There was no evidence aside from this testimony that the defendants took any immediate steps in November 2019.
February 28, 2020: Counsel for the defendants wrote to plaintiff’s counsel to ask whether the plaintiff would consent to set aside the default judgment or “lift the writ and refile the same” to permit the defendants to purchase a new home. Otherwise, the defendants’ counsel said he would be bringing a motion to set aside the default judgment. What was urgent in the defendants’ eyes was the imminent closing of a real estate transaction.
March 1, 2020: Plaintiff’s counsel responded to the defendants’ correspondence and invited the defendants’ counsel to canvass dates for a motion. The defendants did not respond any further.
December 4, 2020: The defendants’ counsel wrote to the plaintiff’s counsel, once again in the context of the defendants trying to close on a new home purchase, this one set to close on December 15, 2020. Counsel for the defendants asked that the plaintiff “lift the writ” from the defendants’ premises to facilitate the closing and suggested that the writ be “re-applied” to their new property. The motion to set aside the default judgment was suggested as an alternative approach. The plaintiff refused to lift the writ. The defendants did not take any steps to bring a motion to set aside the judgment.
July 19, 2021: Intact Insurance denied the defendants’ claim. The insurer expressly noted: “You first notified Intact Insurance of the Claim or on about May 9, 2020, approximately five years after you received the Claim and five years and three months after the alleged incident took place. We understand that you retained legal representation to bring a motion to set aside the Default Judgment and you have requested coverage for your defence and indemnity for the claim from Intact.” The defendants contend that they did not actually become aware of this denial until January 2022.
September 29, 2021: The defendants’ counsel advised the plaintiff’s counsel that he had instructions to bring the within motion.
November 5, 2021: The defendants served their Notice of Motion on the plaintiff.
January 19, 2022: The defendants served their affidavits in support of the Notice of Motion.
February 18, 2022: The original motion hearing date was adjourned at the request of plaintiff’s counsel to May 26, 2022. That date was subsequently adjourned to July 16, 2022.
March 18, 2022: Jasvir was cross-examined on his affidavit.
March 21, 2022: Counsel for the plaintiff listed the undertakings that Jasvir gave at his examination.
May 19, 2022: Mandeep was cross-examined on her affidavit.
May 24, 2022: Counsel for the plaintiff listed the undertakings that Mandeep gave at her examination.
July 8, 2022: Following numerous efforts by the plaintiff’s counsel for the motion to proceed as soon as possible, the motion was scheduled for July 15, 2022. However, on this date, the defendants’ counsel asked to adjourn the motion as he was going to seek instructions to cross-examine the plaintiff’s counsel on the responding affidavit he filed.
July 11, 2022: Plaintiff’s counsel received answers to some of the undertakings. Included in the responses was a Property Standards Order issued by the City of Brampton on January 22, 2015, eight days before the slip and fall accident, ordering the defendants to remove forthwith all ice from walkways around the house leading to and from the entrances.
July 14, 2022: A law clerk working with counsel for the plaintiff contacted the Registrar’s Office at the Superior Court in Brampton to request an invitation to Caselines. She was told that the moving party had not filed their motion materials and therefore the motion would not be proceeding. On the following day, counsel for both parties attended at the courthouse personally and spoke to a court representative who acknowledged that the motion materials from the moving party were filed but since the motion record was not filed on time, the motion was struck and had to be rescheduled to November 2022.
[8] In his evidence at trial, the plaintiff alleged that on February 8, 2015, he fell on the stairs leading to his basement apartment at the defendants’ residence and suffered injuries. He said he was wearing winter boots and carrying three grocery bags in one hand and a bag of salt in the other. As he took one step down the stairs he slipped and fell on ice and snow which had not been sanded, salted, or cleared.
[9] As a result of the fall, he injured his right knee. MRI results revealed a meniscal injury. His injury prevented him from working for an extended period of time. He also said that he could not afford physiotherapy. Eventually, he was evicted from his apartment because he could not keep up with the bills. That resulted in a mental breakdown. As of the date when he swore his affidavit in support of the uncontested trial, the plaintiff said he continued to suffer from depression, anxiety, and pain in the right knee. He also acknowledged that he had injured his right knee three years earlier in a different slip and fall.
[10] The trial judge considered the evidence before her. She found that the defendants were liable as the property owners. She also held that the plaintiff was contributorily negligent, given his admission that he was aware of the snow and ice hazard and failed to take due care and attention. On damages, the trial judge took into account the plaintiff’s previous injury. For general damages, she reduced her award by 15% on account of the previous condition and 20% for contributory negligence. The plaintiff’s loss of income award was based on a finding of an annual income of $28,800. The trial judge also made a modest award for future income loss and housekeeping needs. Finally, she accepted the documentation in support of OHIP’s subrogated claim and included that in the damages award.
[11] In their proposed defence, the defendants’ main submission is that the plaintiff was never a tenant at their premises. They allege that they rented the basement in October 2014 to a single mother, who at some point was joined by a boyfriend. They also say that they always maintained their premises, particularly since they had to ensure the safety of their own family. Finally, they allege that neither defendant, nor their family members, saw or heard anyone falling.
ANALYSIS
[12] The only issue on this motion is whether the default judgment against the defendants should be set aside. The setting aside of the default judgment would subsume the setting aside of the noting in default and any enforcement proceedings. The relief sought is discretionary and governed by the following principles.
a) Applicable Legal Principles
[13] Rule 19.08 sets out the test to set aside a default judgment. It provides:
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.
(2) A judgment against a defendant who has been noted in default that is obtained on a motion for judgment on the statement of claim under rule 19.05 or that is obtained after trial may be set aside or varied by a judge 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.
[14] In Mountain View Farms Ltd. v. McQueen, 2014 ONCA 194, at paras. 47-51, the Court of Appeal set out the following test:
[47] The court's ultimate task on a motion to set aside a default judgment is to determine whether the interests of justice favour granting the order. The approach to be taken to this determination has been considered numerous times by this court. The following draws heavily on the summary of the principles in those cases by Perell J. in Watkins v. Sosnowski, 2012 ONSC 3836, at paras. 19-20 and 23-24.
[48] The court must consider the following three factors:
(a) whether the motion was brought promptly after the defendant learned of the default judgment;
(b) whether there is a plausible excuse or explanation for the defendant's default in complying with the Rules; and
(c) whether the facts establish that the defendant has an arguable defence on the merits.
[49] To this list, I would add the following two factors the court should have regard to, as set out in Peterbilt of Ontario Inc. v. 1565627 Ontario Ltd .2007 ONCA 333, 87 O.R. (3d) 479 (C.A.), at para. 2:
(d) 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
(e) the effect of any order the court might make on the overall integrity of the administration of justice.
[50] These factors are not to be treated as rigid rules; the court must consider the particular circumstances of each case to decide whether it is just to relieve the defendant from the consequences of his or her default.
[51] For instance, the presence of an arguable defence on the merits may justify the court exercising its discretion to set aside the default judgment, even if the other factors are unsatisfied in whole or in part. In showing a defence on the merits, the defendant need not show that the defence will inevitably succeed. The defendant must show that his or her defence has an air of reality.
[15] These same considerations were reiterated in Intact Insurance Company v. Kisel, 2015 ONCA 205, H.B. Fuller Company v. Rogers, 2015 ONCA 173, and Franchetti v. Huggins, 2022 ONCA 111. These and many other cases capture the tension between two policies: on the one hand, the need for a case to be decided on its merits and on the other hand, the requirement that civil actions be decided in a timely and efficient manner to maintain public confidence in the administration of justice.
[16] Rule 1.04(1) provides that the rules be “liberally construed to secure the just, most expeditious and least expensive determination of every civil proceeding on its merits.” In instances of noncompliance with the rules, the court “may grant all necessary … relief, on such terms as are just, to secure the just determination of the real matters in dispute”: rule 2.01(1)(a).
[17] Where a plaintiff’s noncompliance is due to the errors of third parties, such as their counsel’s inadvertence or the court’s administrative oversight, the innocent plaintiff client should not “suffer the irrevocable loss of the right to proceed”: Marché D’Alimentation Denis Thériault Ltée. v. Giant Tiger Stores Limited,2007 ONCA 695, at para. 28. The court must also consider whether the defendant would suffer any non-compensable prejudice as a result of the delay, whether or not a fair trial would still be possible, and if it is, whether it is just that the principle of finality and the defendant’s reliance on the security of its position should nonetheless prevail: see: Marché, H.B. Fuller Company, and Wellwood v. Ontario Provincial Police, 2010 ONCA 386, 319 D.L.R. (4th) 412.
[18] Relying on the factors for consideration outlined in Franchetti, at para. 9, for the setting aside of a noting of default and having regard for the foregoing principles and the administration of justice, I will proceed to analyse the evidence before me.
b) Application of the Legal Factors
[19] As a general observation, I am deeply troubled by the defendants’ cavalier attitude towards this litigation, their corresponding obligations, and effectively, their continued disregard for the Rules. On the evidence before me, I find that the defendants chose to ignore the plaintiff’s claim in the hope that it would simply disappear. Their litigation strategy consisted of a series of excuses and deliberate delay tactics.
[20] Compounding these concerns is my finding that the defendants are being less than truthful on both the reasons for their delay as well as the merits of their defence. In the result, as much as various decisions of the Court of Appeal have strongly encouraged trial judges to construe the rules and procedural orders non-technically to allow cases to be determined on their merits, the defendants in this instance have given the court next to nothing with which to give them the benefit of the doubt and exercise its discretion in their favour.
Factor 1: The behaviour of the plaintiff and the defendants and the explanation for the default
[21] To begin with, the plaintiff behaved appropriately in the pursuit of his claim. Through his counsel, the plaintiff sent no fewer than five separate communications concerning his claim by registered mail and by personal service. In his overall communications with the defendants, he and his counsel were always clear about their position and prompted the defendants repeatedly to bring their motion. In effect, the plaintiff offered the defendants every opportunity to pursue their defence on its merits. But at some point, having gone by the book on obtaining a judgment, the plaintiff has to have confidence in the timely resolution of disputes and be able to rely on the finality of an outcome.
[22] In contrast to the plaintiff, the defendants sought to ignore the Rules and more significantly the plaintiff’s claim and his related communications. At no time did they put their best foot forward to explain their failure to respond to any of the plaintiff’s communications and to defend the claim in a timely manner. Even on the motion before this court, they remained silent on a number of critical issues, including the letters from the plaintiff about his accident and Brampton’s 2015 order to remove the snow and ice from their premises.
[23] Turning to the specific concerns, Mandeep did not dispute that she was served with the claim. She did not suggest that she could not read or otherwise appreciate the document she received. But she offered no explanation on what she did with the claim. Did she bring it to her husband’s attention? Did she misplace the claim? Some attempt at an explanation would have given the court something for its consideration. In the absence of any explanation, the court has very little to work with to exercise its discretion in the defendants’ favour.
[24] Jasvir’s admission that the claim was served but that it did not come to his attention because of the number of people living there made no sense. His explanation would be plausible if it related to one or even two envelopes going missing, but five of them going missing, including registered mail that would have required Jasvir’s signature, is implausible.
[25] On the evidence before the court, consistent with their overall conduct and approach to this litigation, I can only conclude that the defendants were aware of the claim, but to their detriment, they chose to ignore it. They did not demonstrate any interest to defend the claim in a timely manner.
Factor 2: The length of the defendants’ delay
[26] The plaintiff obtained judgment in August 2019. Jasvir ostensibly learned of the judgment in November 2019. Leaving aside the concerns with the defendants’ original engagement with the claim, if the only delay rested between August and November 2019, it would be in the interests of justice to give the defendants the benefit of the doubt regarding their awareness of the claim, set the judgment aside, and permit them to defend the claim.
However, the defendants did not take any steps to set aside the judgment until two years later. Although their counsel communicated with the plaintiff’s counsel about the possibility of a motion to set aside the judgment in February 2020, it was only proposed as an alternative to the temporary lifting of the writ. In any event, no positive steps were taken until September 2021, when the defendants advised the plaintiff of their intention to proceed with a motion to set aside the judgment. The notice of motion was served only in November 2021 and the supporting affidavits were served three months later. The parties then ran into various difficulties with the scheduling of the hearing.
Factor 3: The reason for the delay
[27] The defendants did not offer any credible or plausible explanation for their two-year delay, post-judgment. Their attempt to blame their inaction on Intact’s delay in its response to their claim was replete with contradictions and internal inconsistencies. Ultimately, that excuse was a red herring and underscored my overriding concern that even at this stage, the defendants were less than truthful to the court about their efforts to address the jeopardy they faced.
[28] To begin with, Jasvir misrepresented the date he submitted his claim to Intact. In his affidavit, he said he submitted his claim in November 2019. But contrary to that, the communications from his lawyer to the plaintiff’s lawyer suggested that the defendants would be contacting their insurance in February 2020 and asked for the plaintiff’s indulgence. In further contradiction, Intact’s own letter, which Jasvir included in his affidavit, recorded that the claim was received in May 2020, a full six months from when Jasvir said he submitted it. No explanation was offered for this discrepancy.
[29] Given the indication by Jasvir’s counsel in February 2020 that his client intended to advance a claim, I can infer, at the very least, that Jasvir did not submit his claim until some point after that February communication. The May date recorded by Intact is therefore the most probable date of the claim, leaving Jasvir with no plausible explanation on why he waited six months from November 2019 to submit his claim.
[30] Second, Jasvir’s explanation that he wanted to see if Intact would cover his claim before he took any steps in court was internally inconsistent and upended his justification for the delay in bringing his motion. Jasvir submitted that he did not discover Intact’s coverage denial until January 2022, even though the communications from Intact suggest that the claim was denied in July 2021. He also said that he did not want to go ahead with any motion until he had Intact’s response. If those explanations are to be accepted, Jasvir ought not to have taken any steps to set the judgment aside until after January 2022, when he said he learned of the denial. And yet, Jasvir’s counsel advised the plaintiff of his instructions to bring the motion to set aside the default judgment in September 2021, and served the corresponding notice of motion in November 2021, well before Jasvir learned of Intact’s denial.
[31] The steps taken by counsel are consistent with Jasvir learning of Intact’s denial in July 2021 and then taking steps in court. However, Jasvir’s curious evidence that he did not know anything about Intact’s decision until January 2022 effectively neutralized any role that Intact’s delayed response could have had in Jasvir’s own two-year delay to take any action. He did not suggest that he became impatient with Intact and re-evaluated his approach, nor otherwise explain why he went ahead with the motion before he became aware of Intact’s denial. These unanswered questions leave the court with no credible explanation for the two-year delay to set aside the judgment.
[32] Insofar as Intact took 14 months (May 2020 – July 2021) to respond to Jasvir’s claim, I would be prepared to take that into account if I were convinced that the defendants’ attempt to blame Intact for the delay was credible. However, nothing in the defendants’ interaction with Intact demonstrated any urgency on their part. They did not provide any evidence that they took all necessary steps to expedite the processing of their claim, or otherwise indicate that they understood the urgency of the situation. They say they made multiple inquiries with Intact on the status of their claim, but they offered no explanation on how many times they contacted Intact, to whom they spoke, or other details on the contents of their communications to underscore their sense of urgency. In the absence of any such evidence, the defendants’ attempt to capitalize on Intact’s 14-month delay to explain their own delay is far from convincing. The evidence in this cse does does not allow the court to place the defendants’ non-compliance with the Rules at the feet of third-party error.
[33] Finally, and most significantly, the Rules require a defendant to act promptly following the discovery of a default judgment. The defendants did not have the luxury of time to wait and see if Intact would accept or deny their claim. Acting promptly means bringing a motion to set aside the judgement as soon as possible and certainly not two years after learning of the judgment. If the defendants were genuinely concerned about how they might approach the urgent need to bring the motion with the implications on their insurance coverage or a future indemnification for their legal costs, they could have raised those concerns with Intact and obtained the appropriate direction. However, there is no evidence that they sought such guidance. Absent some evidence that the defendants’ insurance policy would have prohibited them from taking legal steps to mitigate their jeopardy in advance of Intact’s pronouncement on the merits of their claim, the defendants’ attempt to rely on Intact’s delayed response to their claim is nothing more than a feeble attempt to blame a third party for their own two-year delay in doing anything about the judgment. Rather, their behaviour is consistent with the defendants’ overall strategy to ignore the claim, ignore the judgment, and hope that eventually their debt to the plaintiff would disappear.
Factor 4: The complexity and value of the claim
[34] The claim is not complex. The plaintiff alleged that he slipped and fell on the defendants’ property and suffered significant injuries. The judge awarded the plaintiff damages of $153,135.00, pre-judgment interest on general damages at a rate of 5% per annum, costs in the amount of $9,498.01, and $2,127.76 to the Ministry of Health and Long-Term Care for its OHIP subrogated claim.
[35] I find it significant that the trial judge considered the plaintiff’s claim in detail. In her judgment she took into account the plaintiff’s pre-existing injuries as well as his own contributory negligence. Her decision to use a very low income as a base line for her determination of the plaintiff’s loss of income also demonstrated the judge’s cautious approach in her overall assessment of the plaintiff’s damages.
Factor 5: Whether setting aside the default judgment would prejudice a party relying on it
[36] It is difficult to say whether the plaintiff would suffer non-pecuniary prejudice by the setting aside of the default judgment. I agree with the plaintiff that if the judgment were to be set aside, the earliest that a trial would take place would be in late 2024 or 2025, ten years following the accident. I also agree that such a delay could shift the litigation ground for the plaintiff and test his ability to re-establish the defendants’ liability and the damages he said he suffered.
[37] That said, I remain guarded on the nature or extent of the prejudice on the plaintiff because in his response to this motion, he did not raise any specific concerns such as not being able to call witnesses, fading memories, or lost evidence that would compromise his ability to advance his claim and have a fair trial. Given the existence of third-party records from the City of Brampton on the conditions of the defendants’ property in February 2015, as well as the medical evidence he relied on to advance his damages claim, the plaintiff ought to have the evidence he requires to advance his claim. If successful, he would be entitled to substantial costs.
Factor 6: The balance of prejudice as between the parties
[38] The balance of prejudice in this instance is a very close call. On the record before me, this consideration on its own would not be determinative of the motion. There can be no question that the defendants will be prejudiced if their motion to set aside the default judgement and the noting of default is dismissed. However, given the passage of time, the plaintiff may have greater difficulty establishing the defendants’ negligence and the resulting damages. If anything, the consideration of this factor reveals the tension between the requirement that cases be decided on their merits and the timely resolution of disputes. Where, as in this case, the defendants deliberately avoided a timely response to the plaintiff’s claim, they cannot very well rely on the resulting prejudice to set the judgment aside.
Factor 7: Whether the defendants have an arguable defence on the merits
[39] This most problematic of all the factors in this case involves the numerous weaknesses in the defendants’ proposed defence. In short, as much as the defendants now choose to contest the plaintiff’s identity and make the bald statement that they always maintained their property, on their own evidence on this motion, they all but admit to their failure to maintain their property.
[40] The defendants’ overriding thesis in their defence is that the accident never occurred. In their draft defence, they propose to plead that they did not know who the plaintiff is, that he was never a tenant at their premises, and that nobody living with the defendants saw anything to suggest that somebody fell on their property on the alleged date of the accident. They add that the damages are too remote. The allegations are bald with little to no details. On a closer look at the proposed defence, there are in fact numerous difficulties.
[41] First, although the defendants make much of their concern that the plaintiff was not a tenant at their property as he claimed, the plaintiff would not have had to be a tenant there to advance a claim in negligence under the Occupiers’ Liability Act, R.S.O. 1990, c. O.2. The plaintiff would only have to establish that he was on the premises and that he fell and injured himself. Whether the plaintiff was a tenant or a visitor could touch on his credibility, given his statement that he was a tenant, but it would not affect the defendants’ liability.
[42] Second, the elements of the proposed defence that touch on the tenant’s identity, the complaints about the rent not being paid and the police being called, and the tenant’s eventual eviction, are irrelevant. What the defendants do accomplish is to confirm that somebody other than their own family members was occupying the basement apartment in February 2015. That person would have had people coming and going to the basement. Any suggestion by the defendants that the plaintiff could not have come to the basement because he was not a tenant there is simply untenable.
[43] Third, the proposed defence that the accident could not have happened because nobody living with the defendants saw or heard anything on the day of the accident is undermined by the defendants’ own admission that the basement apartment was located at the back of the residence. It stands to reason that it would be unlikely for the occupants on the main floor of the defendants’ residence to see or hear anything that happened at the back of the house. The defendants suggest that somebody would have also seen an ambulance arrive at their premises if an accident had occurred. But the plaintiff never said that he called an ambulance. To the contrary, in his evidence at trial, he said he went into the basement apartment and iced the knee.
[44] The injuries the plaintiff described in his evidence before the trial judge and the immediate steps he took when he fell were known to the defendants. To raise the absence of an ambulance as an issue when nobody ever said anything about an ambulance is to cause deliberate confusion and potentially mislead the court. The defendants effectively constructed a straw-man allegation, only to knock it out in support of their contention that no accident ever occurred.
[45] Most significantly, if the defendants never knew the plaintiff and never recognized who he was, why wouldn’t they have reacted immediately upon being served with the claim, or alternatively upon receiving the registered letters from the plaintiff’s counsel, to challenge the plaintiff’s identity. It stands to reason that if somebody receives a letter from a stranger who alleges being injured and effectively contemplating damages, the first question to ask is ‘who is this person’ and take immediate steps to challenge the proposed claim. The defendants’ failure to raise any such immediate concerns and to identify the plaintiff as a stranger puts their suggestion that they never knew the plaintiff into serious doubt.
[46] That doubt is compounded by their continued silence over the plaintiff’s identity at the time that they learned of the judgment. Even if I were to give the defendants the benefit of the doubt on who saw what when the claim was first served in 2015, surely they would have reacted immediately to a substantial judgment from a stranger and taken immediate steps to challenge that stranger’s identity. But they never raised such a concern. Their only concern was to remove any obstacles to obtaining a mortgage and closing the real estate transaction. It makes no sense that the defendants would be asking for a temporary lifting of the writ if fundamentally the encumbrance on title was from a stranger. Why would anyone allow the writ related to a stranger to be re-registered at all? Their apparent indifference to the plaintiff’s identity effectively destroys their defence that they did not know the plaintiff.
[47] Finally, perhaps the greatest weakness in the proposed defence rests with the defendants’ own production of a Property Standards Order issued on January 22, 2015, with a compliance date of February 11, 2015. The City of Brampton ordered the defendants to remove forthwith all ice from walkways around the house leading to and from entrances. In their proposed defence, the defendants say nothing about this order. They plead instead that the property was well maintained at all times and they deny that there was ever any ice that could have caused a person on the premises to fall.
[48] Having had to produce a copy of the Property Standards Order following their cross-examination on their evidence to the motion before this court, the defendants did not offer any additional evidence or revise their proposed defence to explain what they did about the order, whether they complied, and if so, when any compliance steps were taken. They were silent about the condition of the stairways and limited the description of their efforts to maintain the premises to “steering away the snow” and “salting”. Although I am not entirely certain about what is meant by “steering away the snow”, if it means shovelling it to the sides, such activities could easily result in water run-offs and ice accumulation as temperature conditions fluctuate, causing more of a hazard than previously existed. If anything, they effectively admitted to the continued existence of a hazard on their premises compromising any air of reality to their proposed defence.
[49] I cannot ignore the deemed admission that the plaintiff fell on the stairways to the basement apartment because of the ice just eight days following the City’s compliance date. A meritorious defence would be one where the defendants put their best foot forward, acknowledged the existence of the municipality’s Property Standards Order and then outlined the specific steps they took to clear the ice. Such a defence would go a long way to persuading the court to exercise its discretion in their favour, even if the court remained skeptical over the other factors. These defendants did not advance any such defence. That deficiency, combined with the other weaknesses in the proposed statement of defence, eliminates any air of reality to the proposed defence. This difficulty, in conjunction with my findings concerning the defendants’ delay eliminates any possible justification to set aside the default judgment.
[50] In short, given the cumulative weaknesses in their case, there is no air of reality to the proposed defence.
CONCLUSION
[51] For all of the foregoing reasons, the defendants’ motion is dismissed with costs in favour of the plaintiff, which I fix at $14,000 inclusive of disbursements and applicable taxes. I arrive at that sum with full regard to the plaintiff’s Bill of Costs and the requirements of rule 57.
Tzimas J.
DATE: February 7, 2023
COURT FILE NO.: CV-15-2329
DATE: 20230207
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Randy Brown, Plaintiff
AND
Jasvir Singh Dhaliwal and Mandeep Kaur Dhaliwal, Defendants
BEFORE: The Honourable Justice Tzimas
COUNSEL: Sylvia Guirguis, for the Plaintiff
Satish Mandalagiri, for the Defendant
ENDORSEMENT
Tzimas J.
DATE: February 7, 2023