Court File and Parties

Oshawa Court File No.: CV-24-0000-0867-0000 Date: 20241030 Ontario Superior Court of Justice

Between: ARUN PRASHAD JEYASEKERAM, Plaintiff – and – JONY SHANGAR SIVANANTHARASA & SUREKA THEIVANDRAM, Defendants

Counsel: Viresh Fernando, Counsel for the Plaintiff Siyamson Pathmanathan, Counsel for the Defendant, Jony Shangar Sivanantharasa No one appearing for the Defendant, Sureka Theivandram

Heard: October 29, 2024

Reasons for Decision

CHARNEY J.:

[1] On August 1, 2024, I heard the Defendant Jony Shangar Sivanantharasa’s motion to set aside the default judgment obtained by the Plaintiff and to permit Mr. Sivanantharasa leave to file a Statement of Defence. On August 2, 2024, I issued an Endorsement granting the relief sought: Jeyasekeram v. Sivanantharasa, 2024 ONSC 4331.

[2] This Order set aside the default judgment against the Defendant Jony Shangar Sivanantharasa. It did not set aside the default judgment against the other Defendant, Sureka Theivandram.

[3] Briefly, the Plaintiff issued a Statement of Claim on April 18, 2024. The Defendants were served with the Statement of Claim on April 20, 2024, but failed to deliver a Statement of Defence within 20 days as required by Rule 18.01. The Plaintiff sought and obtained default judgment on June 7, 2024, and a Writ of Seizure and Sale was obtained on June 14, 2024.

[4] Mr. Sivanantharasa swore an affidavit stating that he learned about the default judgment in June, 2024, although the precise date of that knowledge was not indicated in the motion material before me. He retained counsel on June 27, 2024, and the motion to set aside default judgment was served on July 25, 2024.

[5] The other Defendant, Sureka Theivandram, is Mr. Sivanantharasa’s former spouse. She did not participate in the motion to set aside the default judgment.

[6] The Plaintiff did not attend the motion on August 1, 2024 or file any responding material, although the material before me indicated that he was served with the Notice of Motion on July 25, 2024, seven days prior to the return date of the motion.

[7] In the final result, I issued the following Order: a. The Default Judgment be set aside and the Writ of Sale/Seizure be vacated; b. The Noting in Default is set aside; c. The Defendant shall file and serve his Statement of Defence within 30 days of this Order.

[8] The Order and Endorsement were emailed to the parties on August 2, 2024.

[9] The Defendant served his Statement of Claim and Counterclaim on the Plaintiff on September 3, 2024.

[10] On September 9, 2024, my Judicial Assistant received a letter from Mr. Viresh Fernando, counsel for the Plaintiff. Mr. Fernando asked my assistant to deliver to me an attached letter. The letter stated:

On August 1, 2024, The Honourable Justice R.E. Charney heard an urgent motion by the Moving Party and Defendant Jony Shangar Sivanantharasa…For reasons set out in the attached material, it was effectively an ex-parte hearing….

Our client who is the Responding Party and Plaintiff has prepared and is enclosing motion material seeking to vacate/rescind/set aside His Honour’s Order and Reasons as they were obtained by deceit.

[11] The letter made the following allegations of “intentional misconduct” against counsel for Mr. Sivanantharasa: i. Failing to ascertain plaintiff/responding party counsel Mr. Fernando’s availability for a motion hearing; ii. Negotiating with the motion/trial scheduling office from July 8 to July 25, 2024 without informing Mr. Fernando; iii. Not informing Mr. Fernando that an urgent motion had been scheduled; iv. Not serving plaintiff by not saving (sic) plaintiff’s counsel Mr. Fernando; v. Not serving the co-defendant; vi. Filing material that had not been served; vii. Filing an incomplete, false, misleading and unsigned affidavit in support of the motion; viii. Filing what is essentially a legal opinion by a paralegal in the form of an affidavit; ix. Misleading the court that the plaintiff / Mr. Fernando had been served and possibly filing a false affidavit of service; x. Filing a false and misleading motion confirmation form; xi. Making false submissions; and, xii. Failing to provide information to facilitate counsel’s availability for scheduling this motion.

[12] Mr. Fernando requested a date to bring a motion to set aside my August 2, 2024 Order.

[13] Accordingly, this motion was scheduled for October 29, 2024.

Procedural History

[14] Shortly after being retained by Mr. Sivanantharasa, his lawyer, Mr. Pathmanathan, emailed Mr. Fernando on June 27, 2024 to advise him that he had been retained “to set aside the default judgment and writ”. Mr. Fernando responded on June 30, 2024, stating: “It is your client’s right to seek to set aside the judgment but I am certain that your clients will not succeed”.

[15] On July 4, 2024, Mr. Pathmanathan emailed Mr. Fernando and advised:

At this time, I do maintain instructions to proceed with a motion to set aside the default judgment…My assistant will be seeking the next available dates for this motion to be heard.

[16] Mr. Fernando responded the next day:” [I]n case you do go ahead with your client’s instructions and seek to set aside the judgment and writ of seizure and sale, my instructions are to vigorously oppose.”

[17] On July 8, 2024, Mr. Pathmanathan’s Law Clerk emailed the Oshawa Trial Coordinator to inquire about the procedure for scheduling an urgent motion. He was directed to the Notice to the Profession – Protocol for Civil Proceedings Central East Region. The Law Clerk advised the Trial Coordinator that the matter was urgent because the Plaintiff had already obtained a Writ of Seizure and Sale. The Trial Coordinator responded the same day to advise that the Court was currently booking short contested motions for January and February 2025, but that, due to a cancellation, the Court could offer August 1, 2024.

[18] The Law Clerk responded on July 8, 2024, requesting that the motion be scheduled for August 1, 2024.

[19] Mr. Fernando was not copied on this email. His availability on August 1, 2024 was not canvassed by Mr. Pathmanathan. Mr. Pathmanathan did not advise Mr. Fernando that the August 1, 2024 date had been scheduled until July 25, 2024.

[20] Mr. Pathmanathan emailed the Court on July 25, 2024 to inquire whether any other dates could be scheduled later in August or early September, but was advised by the Trial Coordinator that there were no other available dates until January 2025.

[21] On July 25, 2024, at 3:32 p.m., Mr. Pathmanathan served Mr. Fernando with the motion record and confirmation of motion by email. This was the first notice that Mr. Fernando had that the motion would proceed on August 1, 2024.

[22] On July 26, 2024, Mr. Fernando emailed the Trial Coordinator at 10:48 a.m. (with a copy to Mr. Pathmanathan) to complain that the motion had been scheduled without his consultation. His email stated:

We had no knowledge that the defendant Jony Shangar Sivanantharasa was seeking to move a motion, let alone do so on an urgent basis.

We were not consulted about our availability and of course were not properly served. We became aware of the motion this morning when we noted that we had been copied on the same email as when counsel for the defendant Jony Shangar Sivanantharasa, attempted to file motion material by emailing your office last afternoon.

We just had a sixteen-minute phone call with counsel Siyamson Pathmanathan who said he had been called to the bar just one year ago. We referred counsel to the Rules of Civil Procedure.

[23] Mr. Fernando does not indicate in this email that he is not available on August 1, 2024, nor does he advise the Court that he would be seeking an adjournment of the motion.

[24] Immediately after receiving Mr. Fernando’s email to the Trial Coordinator, Mr. Pathmanathan emailed Mr. Fernando at 11:46 a.m., stating:

It appears to be an oversight that our office did not relay the date to Mr. Fernando’s office once received…Nevertheless, unless there is a scheduling conflict with Mr. Fernando’s office, with valid reasons, we maintain that this motion should proceed.

[25] Mr. Fernando replied to Mr. Pathmanathan (copying the Trial Coordinator) by email at 12:38 p.m., stating:

You clearly do not know the Rules of Civil Procedure so there is no point discussing anything with you.

We will not be participating in a hearing of a motion that was not properly scheduled, and on which we were not properly served. The hearing coordinator will not schedule this motion for a hearing…You said you have one year experience as a lawyer. I have thirty years experience.

[26] Again, Mr. Fernando does not indicate in this email that he is not available on August 1, 2024, nor does he advise that he would be seeking an adjournment of the motion. He simply advises that he will “not be participating”.

[27] True to his word, Mr. Fernando did not participate when the motion was heard on August 1, 2024. Nor did he send an agent to advise the Court that he was not available. Nor did he write to the Court to advise that he was not available and request an adjournment.

[28] That’s too bad, because if Mr. Fernando had appeared on August 1, 2024 and requested an adjournment because he was not advised of the motion date until July 25, 2024 even though the Defendant had scheduled it on July 8, 2024, he would have been granted an adjournment. That surely would have been a more efficient and cost-effective way of proceeding than his refusing to participate on August 1, 2024 and bringing this motion to set aside my August 2, 2024 Order.

[29] In arguing his motion before me, Mr. Fernando took the position that he did not appear on August 1, 2024 because he was not available. He was unable to explain why he did not mention his unavailability in his July 26, 2024 emails to the Trial Coordinator and Mr. Pathmanathan, particularly given Mr. Pathmanathan’s indication that he would reschedule the motion if there was a “scheduling conflict with Mr. Fernando’s office”.

[30] Mr. Fernando also stated that, even if he had been available, he would not have been able to participate in the hearing on August 1, 2024, because he was not given the Zoom link. This is not correct.

[31] The trial office does not email Zoom links for civil motions, the Zoom link is available on Case Center. This information was provided to both counsel in an email sent to Mr. Pathmanathan and Mr. Fernando by the Trial Coordinator on July 25, 2024, which stated: “Zoom links will also be available in Case Center closer to the hearing date”. Both counsel were invited to the file on Case Center for the August 1, 2024 motion. Moreover, if counsel are not able to access the Zoom link through Case Center, they can advise the Trial Coordinator and a Zoom link will be provided. Finally, when Mr. Fernando did not appear on August 1, 2024, Mr. Pathmanathan emailed him at 9:24 a.m. and advised him that the motion was proceeding and that the Zoom link was available on Caselines (Case Center).

Analysis

[32] The Superior Court has the authority to set aside an order of the Superior Court only when the conditions set out in Rules 37.14, 39.01(6) and 59.06 are met.

[33] Rule 39.01(6) applies only to motions made without notice. A court may set aside any order obtained on a motion made without notice if the moving party fails to make full and fair disclosure. The Defendant’s motion was brought on seven days notice. Therefore Rule 39.01(6) has no application to the present motion.

[34] The potentially relevant portions of Rules 37.14 and 59.06 are set out below:

37.14 (1) A party or other person who, (a) is affected by an order obtained on motion without notice; (b) fails to appear on a motion through accident, mistake or insufficient notice; or (c) is affected by an order of a registrar, may move to set aside or vary the order, by a notice of motion that is served forthwith after the order comes to the person’s attention and names the first available hearing date that is at least three days after service of the notice of motion.

59.06 (2) A party who seeks to, (a) have an order set aside or varied on the ground of fraud or of facts arising or discovered after it was made; may make a motion in the proceeding for the relief claimed.

[35] Mr. Fernando has alleged, inter alia, that counsel for the Defendant filed a “false and misleading confirmation form”, a “false affidavit of service” and “an incomplete, false and misleading affidavit in support of the motion”.

[36] In my view none of these allegations have been made out. While the Defendant’s lawyer should have consulted with Mr. Fernando before scheduling the August 1, 2024 motion, and, at the very least, should have advised Mr. Fernando of the motion date at the earliest opportunity, his failure to do so does not amount to “fraud”. Mr. Pathmanathan advised Mr. Fernando of his intention to bring a motion to set aside the Default Judgment as early as June 27, 2024. Mr. Fernando advised that he had instructions to “vigorously oppose” the motion. The fact that a motion to set aside default judgment was brought did not come as a surprise to Mr. Fernando. The affidavit of service correctly states that the Notice of Motion was served on July 25, 2024 at 3:32 p.m. The motion confirmation states that the moving party “conferred or attempted to confer with the other party”, which is supported by the correspondence between counsel from June 27, 2024 to July 5, 2024. While some of Mr. Pathmanathan’s conduct does not qualify as best practice, it is hardly fraud. From the Defendant’s perspective the motion was urgent – the Plaintiff was threatening to sell his house before Christmas – and the August 1, 2024 date was the only date offered to counsel prior to 2025.

[37] Finally, while Mr. Fernando may take issue with some statements in the Defendant’s affidavit, he has not proven that either the Defendant or his counsel deliberately misled the court. The chronology of events set out in the Plaintiff’s affidavit on this motion are not significantly different than the those relied on by the Defendant in his affidavit in support of the August 1, 2024 motion.

[38] Accordingly, Rule 59.06(2) has no application to this case.

[39] Rule 37.14 (1) is closer to the mark, and the question is whether the Plaintiff failed to appear on the motion “through accident, mistake or insufficient notice”.

[40] The Court of Appeal has held that Rule 37.14(1) does not apply where a party decides not to appear “for his own reasons”: Zsoldos v. Ontario Ass. of Architects, at para. 4.

[41] Similarly, in Ontario (Attorney General) v. 15 Johnswood Crescent, at para. 34:

The moving party must establish a failure to appear on the original motion through accident, mistake or insufficient notice. This is a precondition to relief under the rule. A party who has simply chosen not to appear on a motion cannot complain later if he or she does not like the outcome.

[42] In my view, that is exactly what happened in this case.

[43] No doubt Mr. Fernando wanted more than the minimum seven days notice to properly prepare responding material. He was legitimately aggrieved that Mr. Pathmanathan did not consult with him before scheduling the motion for August 1, 2024, and did not advise him of the motion date on July 8, 2024 when it was scheduled. Had Mr. Fernando (or an agent) appeared in Court on August 1, 2024 and asked for an adjournment, he would have received one. But if the motion proceeded without Mr. Fernando present, it is only because Mr. Fernando declined to participate.

[44] That is not the proper application of Rule 37.14(1). “A party who has simply chosen not to appear on a motion cannot complain later if he or she does not like the outcome”.

[45] At this point, it makes little sense to set aside the setting aside of the default judgment. The Defendant has already served and filed a Statement of Defence. Indeed, the Statement of Defence was served and filed on September 3, 2024, one week before the Plaintiff brought this motion to set aside the August 2, 2024 Order. The parties should proceed to deal with the action on its merits. If the Statement of Defence is without merit, the Plaintiff can bring a motion for summary judgment.

[46] In my view, each party should bear their own costs. Both counsel share some blame for this unfortunate situation. Had Mr. Pathmanathan advised Mr. Fernando of the motion date when it was scheduled on July 8, 2024, the motion could have proceeded on fair notice to both parties. Had Mr. Fernando appeared on August 1, 2024 (or sent an agent) the court could have addressed his concerns on that date.

[47] The Plaintiff has also brought a motion under Rule 60.07(10) for an Order correcting the name of the other Defendant in the Default Judgment and the Writs of Seizure and Sale. As indicated above, the Default Judgment against Sureka Theivandram was not set aside. The Plaintiff has discovered that Sureka Theivandram holds title to the residence known as 69 Greenwood Road, Stouffville, Ontario in the name of Sureka Thirunavukkarasu, and wishes to add that other name to the Default Judgment. Accordingly, the following Order is granted:

In the Default Judgment and the Writ of Seizure and Sale, the name of the defendant SUREKA THEIVENDRAM is to be changed to SUREKA THEIVENDRAM AKA SUREKA THIRUNAVUKKARASU.

[48] All other relief requested on this motion is dismissed.

Justice R.E. Charney Released: October 30, 2024