Ontario Federation of All Terrain Vehicle Clubs v. Ireland, 2025 ONSC 2639

Court File No.: CV-23-91685
Date: 2025-04-29
Superior Court of Justice – Ontario

Re: Ontario Federation of All Terrain Vehicle Clubs, Applicant (Responding Party)
And: Robert Paul Ireland, Respondent (Moving Party)

Before: C. MacLeod
Counsel:

• Douglas J. Spiller, for the Moving Party, Respondent
• Charles R. Daoust, for the Responding Party, Applicant

Heard: 2025-04-10

Endorsement

Introduction

[1] This matter came before me at civil motions court on April 10, 2025. It proceeded by videoconference. The moving party seeks an order setting aside a judgment of the Honourable Madam Justice Sylvia Corthorn granted at a hearing at which he was not present.

Background

[2] By way of background, the Respondent is a passionate critic of the Applicant organization (OFATVC or “the Federation”). Starting in 2021 he began to post comments on his Facebook page which the Applicant categorizes as false, defamatory and harmful. In March of 2023, the Federation launched an Application seeking a declaration and injunctive relief, requiring the Respondent to cease these activities and to remove the postings. A hearing was held on February 27, 2024 and a decision was released by Corthorn J. on October 15, 2024 (2024 ONSC 5723).

[3] Corthorn J. found that the Respondent had been served with the Notice of Application, had not filed a Notice of Appearance or any responding material, had declined participation in mediation, was aware of the date, and failed to attend the hearing. She proceeded in his absence as permitted under Rule 38.07 of the Rules of Civil Procedure. She made an order declaring that certain statements made by the Respondent were defamatory, requiring the removal of the statements from social media platforms and restraining the Respondent from posting similar allegations in future. She also made a modest costs award.

The Motion to Set Aside

[4] The Respondent now brings this motion to set aside the order pursuant to Rule 38.1. He contends that he did not appear at the hearing due to accident, mistake or insufficient notice. He argues that proceeding in his absence was unjust and the hearing should be reopened. I am advised he has also filed an Appeal with the Ontario Court of Appeal.

[5] Both parties agree that the test for setting aside a default judgment on an application pursuant to Rule 38.1 is similar if not identical to the test for setting aside an order on a motion under Rule 37.14 and similar to setting aside a default judgment under Rule 19.08. Generally that test includes the following:

a. Proof that the person failed to appear through accident, mistake or insufficient notice.
b. Proof that the motion was brought immediately after the order came to the attention of the person affected by the order.
c. The length of the delay in bringing the motion if it was not brought immediately and the reason for the delay.
d. The presence or absence of prejudice.
e. The underlying merits of the moving party’s case. [1]

Service and Notice

[6] There is no doubt that the Respondent was served with the Notice of Application and the Application Record. There is also no doubt that he was aware of the Application because he corresponded with counsel and posted about it on Facebook. Corthorn J. found that he consciously declined to participate despite having been told by the Applicant’s counsel what he needed to do and that if he failed to do so, the hearing would proceed in his absence. She also found that counsel continued to serve him with documents and to advise of the hearing date and the adjourned hearing date despite no longer being required to do so once the date for filing a Notice of Appearance or responding record had expired.

[7] In a particularly telling exchange, after being advised that the date for the hearing had been fixed for October 23, 2023 and that he needed to take steps to be permitted to make submissions at the hearing (although it was subsequently adjourned), the Respondent sent an email as follows:

“You proceed as you see fit”
“If there is a judgment against myself being the victim in the case I will reciprocate a claim 10 times the amount.
“Be assured this is a guarantee of the total collapse of the OFATV”
“I take this opportunity to inform you that the failure to schedule MANDATORY MEDIATION has rendered your attempts meaningless” [2]

[8] Corthorn J. also reviewed the facts establishing that the Respondent was advised of the new motion date, that on February 20, 2024 he was provided with the book of authorities, draft judgment and an endorsement sheet as well as an affidavit including a Facebook posting the Respondent had posted on February 10. That posting included the phrase “take note OFATV I’m not responding to your lawyers until after criminal charges are laid against the appropriate executives”.

[9] The evidence before Corthorn J. and the evidence before me establishes that the Respondent knew that the proceeding was going ahead and knew that a date had been set for the hearing. He was informed about the date and even if I accept that he inadvertently failed to see the email, he certainly had all the information he would have required to attend the hearing with the exercise of reasonable diligence.

Technical Arguments on Notice

[10] On the question of reasonable notice, the Moving Party makes two technical arguments. Firstly, he argues that the confirmation form (which was served on him) was invalid because the form requires that the parties confer and should have included the zoom coordinates. The moving party argues that the confirmation form did not comply with the rules and was therefore “invalid, confusing or ambiguous”. I do not accept this argument. The confirmation form contained the date for the hearing, indicated the material to be read by the judge and indicated the Applicant would need 45 minutes and the Respondent 0 minutes. This reflects the fact that the Applicant by that time believed the Application would be unopposed. The Respondent had made it clear in emails and postings that he was not prepared to participate. It was not misleading. The date of the hearing was clearly shown and it was served upon him even though he was not entitled to such notice.

[11] The other technical argument is the argument that the Applicant amended the notice of Application at the hearing and this should have required the hearing be adjourned and the amended notice of application be served on the Respondent. The amendment was to amend the name of the Respondent from “Paul Ireland” as originally shown on the Notice of Application to “Robert Paul Ireland” which is the Respondent’s full name. It is true that it would be unjust to grant relief at a hearing that was not claimed in the original documents served upon the Respondent. There is however, no prejudice in correcting his name without further notice. Indeed, such a correction can be obtained post-judgment in appropriate circumstances. There is no doubt that the person named in the Application was the Respondent and the Respondent knew the proceeding was seeking relief against him. There is no evidence that he failed to respond because the original document did not contain his full legal name.

Conclusion on Notice and Delay

[12] In summary, there is no basis for a finding that there was insufficient notice or that the Respondent failed to appear only because of inadvertence or a mistake.

[13] This motion was launched promptly once the order came to the attention of the Respondent. The decision was released on October 15, 2024. The Respondent retained counsel on November 8, 2024, and served a Notice of Appeal. He launched this motion on December 20, 2024 returnable on April 10, 2025.

Meritorious Defence

[14] On the issue of a meritorious defence, the Respondent – or at least his counsel – argues that he has defences of truth (“justification”) or fair comment. Corthorn J. carefully sets out the law of defamation in her decision. She concludes that the words complained of are “on their face or by way of innuendo” defamatory in that they carry the meanings she outlines at paragraph 24 of her decision. As she also points out, once the plaintiff has proven the words were published by posting them to a public forum (Facebook where the Applicant had more than 3100 followers), Ontario law presumes them to be false and defamatory and the Respondent would have the onus to prove a defence.

[15] The defence of justification is available if the words complained of are true. The defence of fair comment may be available if the opinion expressed in the posting is on a matter of public interest, is recognizable as comment, and is a reasonable opinion that might be held by a fair minded person based on underlying facts that are true. [3] Proof of malice underlines the defence of fair comment.

[16] The only evidence the Respondent puts forward to support the availability of these defences is set out in paragraphs 27 & 28 of his affidavit and amounts to a bare assertion that the words were true or fair comment. That is insufficient to demonstrate that he has a valid defence.

Disposition

[17] In conclusion, I am not satisfied that the moving party meets the test necessary for the court to set aside this decision, to permit him to file responding material and to order a new hearing. In particular, I am not satisfied that there is a reasonable explanation for not having defended the proceeding or attending at the hearing. To the contrary, there is evidence that he intentionally ignored the process. The motion is dismissed.

[18] Needless to say, it will be for the Court of Appeal to determine if an appeal should be entertained from a default proceeding and if so whether the remedies granted by the Application judge were appropriate or not based on the material before the court and the procedure adopted by the Applicant. As to those issues, I make no comment as they are not before me.

[19] If the Applicant seeks costs of the motion, I will accept written submissions within the next 15 days. The Respondent may file responding submissions within 15 days thereafter. Alternatively the parties may agree to a costs award and incorporate it in a draft order approved as to form and content.

Justice C. MacLeod
Date: 2025-04-29

Footnotes

[1] Ontario (Attorney General) v. 15 Johnswood Crescent @ para. 34

[2] 2024 ONSC 5723 @ para. 51.

[3] See paras 37–41 of the decision of Corthorn J.