Court File and Parties

Citation: Gauthier v. Malik, 2025 ONSC 5332

Court File No.: CV 24-4493-0000

Date: September 19, 2025

Superior Court of Justice – Ontario

Between:

Raymond Gauthier and Kiziah Gauthier, Plaintiffs

– and –

Sonia Malik and Shilpa Malik, Defendants

Counsel:

• Jack Zwicker, counsel for the plaintiffs
• Self-represented (defendants)

Heard: August 6, 2025

Ruling on Motion to Set Aside Noting in Default

The Honourable Justice Sunil S. Mathai

Introduction

[1] There is an old saying that, "Good fences make good neighbours". As I understand it, the "fence" is a metaphor for maintaining personal boundaries with one's neighbours as a means of fostering positive neighbourly relationships. The case before me is not about a metaphorical fence. It is about an iron gate. This gate did not make for good neighbours.

[2] The Plaintiffs are the registered owners of lands and premises situated at 2843 Mount Albert Road, in the Town of East Gwillimbury. The Defendants are the registered owners of the lands and premises situated at 2821 Mount Albert Road.

[3] The Plaintiffs purchased and took title to 2843 Mount Albert Road on September 12, 1994. The Transfer/Deed of Land registered on the property indicated that the title includes a right of way that was registered on the land on November 3, 1986. The right of way is described as follows:

TOGETHER WITH a Right-of-Way at all times for all persons now or hereafter entitled thereto in, over, along and upon a strip of land 12.00 feet in perpendicular width immediately West of and adjoining the parcel hereby conveyed and extending in a Southerly direction from said Southerly limit of Country Road Number 13 to a line draw perpendicular to, from the Southern extremity of the course shown as North 12 43' East and 147 feet in length.

[4] In November 2021, the Defendants purchased 2821 Mount Albert Road. They began living at the property in February 2022. At that time, the Plaintiffs owned both the property immediately to the east (i.e. 2843 Mount Albert Road) and immediately to the west (i.e. 2759 Mount Albert Road) of the Defendants' property. The Plaintiffs sold 2759 Mount Albert Road in March 2022.

[5] Since the sale of 2759 Mount Albert Road, the Defendants allege that the owners of that property have been using the right of way, on the approval of the Plaintiffs, to drive trucks, transport heavy equipment, and move numerous personal vehicles through the Defendants' property. The Defendants allege that the Plaintiffs gave access to the right of way to the owners of 2759 Mount Albert Road because a bridge that permitted access to that property was no longer functional.

[6] On July 17, 2024, the Defendants erected a gate across the entrance of their property which obstructed the Plaintiffs' access to the right of way. There is no dispute that the Defendants did not provide the Plaintiffs with a key or access code to the gate so that the Plaintiffs could continue to use the right of way. The Defendants' affidavit states that the gate was erected to prevent the owners of 2759 Mount Albert Road from using their property.

[7] The Plaintiffs obtained a land survey on July 5, 2024, which confirms the right of way. The Plaintiffs attempted to bring the land survey to the Defendants' attention, but those attempts were ignored.

[8] The Plaintiffs issued a statement of claim against the Defendants on October 7, 2024. The claim was served on the Defendants on October 30, 2024. The claim seeks an interlocutory and permanent mandatory injunction requiring the Defendants to remove the gate. In the alternative, the Plaintiffs seek damages.

[9] The Defendants did not defend the action and were noted in default on November 22, 2024. There is nothing in the record before me that establishes that the Defendants were advised that they were noted in default.

[10] On April 11, 2025, the Plaintiffs' brought a motion requesting an interlocutory mandatory injunction removing the gate. The motion was returnable on April 30, 2025. The motion record was not served on the Defendants. The April 30th motion was not a motion for default judgment.

[11] On April 30, 2025, de Sa J. granted the Plaintiffs' motion. His endorsement reads as follows:

I am satisfied that the gate across the right-of-way substantially interferes with the applicants' use and enjoyment of their right-of-way, in that it cannot substantially and practically be exercised as conveniently as before.

Accordingly, the Defendants are required to remove the obstruction constructed across the Plaintiffs' right of way registered as Inst No R 415025 Land Registry Office No 25 at Newmarket with respect to the Plaintiffs' lands situated at 43 Mount Albert Road, East Gwillimbury within three weeks of the date of mailing of this Order by pre-paid registered mail to 2821 Mount Albert Road East Gwillimbury Ontario LOG 1RO addressed to the Defendants SONIA MALIK and SHILPA MALIK.

In the event the Defendants have not removed the said obstruction as provided in paragraph 1 hereinabove, the Plaintiffs shall be authorized to remove the said obstruction themselves at their own expense.

No costs are ordered on the application.

[12] Justice de Sa's order was delivered to the Defendants on May 8, 2025. On May 21, 2025, the Defendants wrote to the Plaintiffs' counsel advising that they had already filed, "a Motion to Stay and a Motion to Dismiss." Their correspondence goes on to say that they have, "prepared and [are] submitting both a Notice of Intent to Defend and a Counterclaim, copies of which are attached to this correspondence…"

[13] On May 30, 2025, the Plaintiffs removed the gate. The Defendants took umbrage with this step being taken while their motions, which had not yet been scheduled with the court, were outstanding.

[14] There is no evidence before me that establishes that the owners of 2759 Mount Albert Road have the same right of way enjoyed by the Plaintiffs.

[15] On this motion, the Defendants seek to set aside the noting in default. They also seek, amongst other things, an interim order requiring the Plaintiffs to restore the gate. At the outset of oral arguments, I advised the parties that I would only hear arguments and decide the motion to set aside the noting in default as this was a threshold issue to the Defendants being able to pursue any other relief.

Motion to Set Aside Noting in Default – Governing Principles

[16] Rule 19.03(1) of the Rules of Civil Procedure, R.R.O. 1990, Reg 194, states that a "noting of default may be set aside by the court on such terms as are just." The threshold for setting aside a noting in default is low: Kyles v. M.B.N.A. Mastercard Canada, 2017 ONSC 5037, at para. 9.

[17] It is not in the interests of justice to strike pleadings or grant judgments based solely on technical default. The court will always try to ensure that issues between litigants are resolved on their merits whenever that can be done with fairness to the parties (see Nobosoft Corporation v. No Borders, Inc., 2007 ONCA 444, at para. 7; H.B. Fuller Company v. Rogers, 2015 ONCA 173, at paras. 25-29).

[18] When exercising its discretion to set aside a noting of default, a court should assess the context and factual situation of the case with regard to the following factors:

(a) the behaviour of the parties;

(b) the length of the defendant's delay;

(c) the reason for the delay;

(d) the complexity and value of the claim;

(e) whether setting aside the noting of default would prejudice a party relying on it;

(f) the balance of prejudice as between the parties; and

(g) whether the defendant has an arguable defence on the merits.

(see Franchetti v. Huggins, 2022 ONCA 111, at para. 9; Intact Insurance Company v. Kisel, 2015 ONCA 205, at para. 13).

[19] These factors are not exhaustive and are not intended to be a rigid checklist. Overall, the court must consider, "the strong preference for deciding civil actions on their merits, the desire to construe rules and procedural orders non-technically and in a way that gets the parties to the real merits, and whether there is non-compensable prejudice to either party" (Franchetti, at paras. 8-10).

[20] An arguable defence on the merits may justify the court exercising its discretion to set aside a default judgment, and for that purpose, it is sufficient for the defence to have an "air of reality" (see Mountain View Farms Ltd. v. McQueen, 2014 ONCA 194, at para. 51; Franchetti, at para. 10). However, because requests to set aside noting in default occur early in the litigation process, courts will rarely require a defendant who has been noted in default to show an arguable defence on the merits. Where there has been a significant delay, the moving party is required to show an arguable case on the merits (Franchetti, at para. 10).

[21] The onus of satisfying the court that the noting in default should be set aside rests with the defendant who has been noted in default (see Garten v. Kruk, [2009] O.J. No. 4438 (Div. Ct.), at para. 16). Parties should put their best foot forward on a motion and deliver all evidence that they wish the court to consider (see Garten v. Kruk, [2009] O.J. No. 1764 (Ont. S.C.), at para. 4, rev'd on other grounds, [2009] O.J. No. 4438 (Div. Ct.)).

Application of Governing Principles

[22] With respect to the behaviour of the parties, I find that the Plaintiffs have acted appropriately in the circumstances of this case. I make that finding because there is no dispute that the Plaintiffs complied with the Rules in noting the Defendants in default on the 21st day after service of the claim and because, having been noted in default, the Defendants were not entitled to service of the Plaintiffs' April 30th motion record (see r. 19.02(3)).

[23] That said, it certainly would have been in keeping with best practices to nevertheless serve the Defendants with the motion record (see Roberts v. Santilli, 2019 ONSC 64, at para. 4; Casa Manila v. Iannuccilli, 2018 ONSC 7083, at para. 11). Had the Plaintiffs advised the Defendants of the noting in default or served the motion record on the Defendants, they may have caused the Defendants to seek to set aside the noting in default prior to the April 30th motion.

[24] On the other hand, I find that the Defendants did not act responsibly in this situation. They admit to having been served with the statement of claim and ignored it, believing it was a bullying tactic. Such an approach to an official court document should not be condoned. The Defendants could have contacted the Court to confirm the authenticity of the statement of claim, sought legal assistance on how to respond or contacted counsel for the Plaintiffs. They took no such steps, choosing instead to ignore the statement of claim.

[25] In light of the above, I find that this factor favours dismissing the motion. Had the Plaintiffs advised the Defendants that they had been noted in default or served the Defendants with the April 30 motion record, this factor would have militated more strongly in favour of dismissing the motion.

[26] With respect to the length of delay, the claim was served on October 30, 2024, and the Defendants first took steps to set aside the noting in default in May 2025, shortly after receiving a copy of de Sa J.'s order. While the Defendants took steps to set aside the noting in default soon after being advised of the order, the delay must be calculated from the day they were served with the claim (i.e., October 30, 2024) to when they brought the motion to set aside the noting in default (approximately 7.5 months).

[27] The reason for the delay is described in the Defendants' affidavit as follows:

Mr. Gauthiers [sic] lawyer served us with a claim in November 2024. We misunderstood the seriousness, thinking it was just another attempt to intimidate us.

When We [sic] found the court notice attached to our gate in May 2025, We [sic] immediately sought legal advice and began responding.

This is not a justifiable reason for delay. This is not a situation where the Defendants were misled or given improvident advice. Having taken no steps to understand the seriousness of the statement of claim, the Defendants' excuse for the delay is not compelling. As such, this factor favours dismissing the Defendants' motion.

[28] With respect to the complexity and value of the claim, I find that the claim is moderately complex, though the value of the claim is low. The foundation of the Plaintiffs' claim is simple: there is an existing right of way on the Plaintiffs' and Defendants' title and erecting a gate substantially interferes with the Plaintiffs' use of the right of way. After the gate was erected, the Plaintiffs could not substantially and practically exercise the right of way as conveniently as before (see Weidelich v. De Koning, 2014 ONCA 736, at paras. 10-16; Lewko v. Budd, 2019 ONSC 3594).

[29] Answering this foundational issue is relatively simple. While the description of the right of way (described above), does not reference vehicular traffic, decisions of this Court have found that silence on vehicular traffic does not mean that the right of way cannot be used for vehicular traffic when such use has been historically permitted (see Moore v. Greece (Republic), 2012 ONSC 5826, at para. 53). The evidence before me establishes that the Plaintiffs have used the right of way for vehicular access and are now being inconvenienced. In similar circumstances, though not identical, this Court has found that to be actionable interference with a right of way (see Przewieda v. Caughlin, 2015 ONSC 3770; Nolet v. Granger, 2024 ONSC 3134; Moore). On this basis, de Sa J. came to the obvious conclusion that the gate substantially interferes with the Plaintiffs' use and enjoyment of the right-of-way.

[30] What makes this case a bit more complicated, however, is that the Defendants allege that the right of way is being unlawfully used by the owners of 2759 Mount Albert Road. This allegation and the Defendants' affidavit supporting this allegation were not before de Sa J.

[31] As noted above, there is nothing before me that establishes that the owners of 2759 Mount Albert Road have a legal right to access the right of way. If the Defendants' allegation is true, the Plaintiffs have given unauthorized access to the right of way to the owners of 2759 Mount Albert Road. Does this change the analysis as to whether erecting a fence substantially interferes with the Plaintiffs' use of the right of way. For example, could the Defendants argue that the Plaintiffs' current use of the right of way is inconsistent with its original intent? It is beyond the scope of this motion to answer this and other related questions that go to the merits of the dispute. I flag these issues because the Defendants' evidence on the current use of the right of way would likely assist the court in arriving at a conclusion on whether erecting a gate at the entrance of the Defendants' property substantially interferes with the Plaintiffs' actual use of the right of way.

[32] Considering the above, I find that the complexity factor is neutral. This factor neither supports granting the motion nor supports dismissing the motion.

[33] I turn now to prejudice. The Plaintiffs' factum does not identify any specific prejudice that would be occasioned by setting aside the noting in default. Their factum refers me to the fact that the Plaintiffs are elderly. The Plaintiffs' age does not, in and of itself, establish non-compensable prejudice.

[34] I find that setting aside the noting in default will not cause prejudice to the Plaintiffs. The Plaintiffs obtained an order permitting them to remove the gate and complied with that order. Absent the order being obtained by fraud or a successful appeal of the order, the order stands as proper authority for the removal of the gate. Setting aside the noting of default may permit the defendants to bring a motion to set aside or vary the order or to appeal it, but absent some further order of the court, setting aside the noting in default will not require the Plaintiffs to restore the gate. Arguably, such a motion or appeal would be moot given that the gate has already been removed. Further, because the action is less than a year old, this is not a situation where the passing of time has made it difficult for the Plaintiffs to prosecute their claim (Franchetti, at para. 18; Arapakota v. Makki, 2025 ONSC 904, at para. 39).

[35] On the other hand, the prejudice to the Defendants is significant. If the noting in default is not set aside, the Defendants will be deemed to have admitted the facts alleged in the statement of claim (which are largely uncontested), and, more importantly, the Defendants will not be able to pursue their argument that the Plaintiffs' current use of the right of way exceeds its original intention (i.e. the right of way does not permit the Plaintiffs to give access to the owners of 2759 Mount Albert Road). If a final judgment is obtained on the action, this could impact the Defendants' ability to erect a gate in the future. For example, it may be the case that the Defendants can erect a gate and provide access to the Plaintiffs to the exclusion of others who do not have a legal entitlement to the right of way.

[36] On balance, I find that considerations around prejudice favours granting the motion.

[37] With respect to the final factor, I find that there is some merit to the Defendants' defence.

[38] The Defendants accept that a right of way exists but offer two defences. First, they allege that the right of way is mostly unusable as only 3 feet of the 12-foot width is level and the Plaintiffs can access their property through other routes. This is a weak argument. I come to this conclusion because: (1) the right of way has historically been used by the Plaintiffs to access parts of their property with their vehicles; (2) the description of the right of way does not preclude vehicular traffic; and (3) if a barrier is erected, the Plaintiffs will have to access parts of their property using a different route. Evidence on these three points was before de Sa J. and he was convinced that the gate substantially interfered with the Plaintiffs' use of the right of way.

[39] Second, the Defendants argue that the Plaintiffs' use of the right of way is inconsistent with its purpose. As noted above, the Defendants argue that the Plaintiffs have granted access to the right of way to the owners of 2759 Mount Albert Road. While the Defendants have not offered any legal support for this position, there is some intuitive appeal to such an argument. If the owners of 2759 Mount Albert Road do not have access to the right of way, then the Plaintiffs granting them access to the right of way may exceed the intention of the right of way.

[40] While I find that there is some merit to the second argument, I am mindful of the Court of Appeal's caution in Franchetti that where a motion to set aside a noting in default occurs early in the process, the importance of the defendant establishing an "air of reality" to the defence is rarely a factor that requires consideration absent exceptional delay or circumstances (see Franchetti, at paras. 8-10; Bates v. The Corp. of the Town of Atikokan et al., 2025 ONSC 3490, at para. 58). In this case, the action is less than a year old, so I do not put much significance on this factor.

Conclusion

[41] In the totality of the circumstances, I grant the motion to set aside the noting in default. I arrive at this outcome based on a consideration of all the factors but with particular emphasis on the following: (a) the strong preference to see that issues between litigants are resolved on their merits whenever that can be done with fairness to the parties; (b) the fact that the Plaintiffs did not advise the Defendants that they were noted in default and did not serve the Defendants with the April 30th record; (c) the absence of any prejudice to the Plaintiffs and the potentially significant prejudice to the Defendants; and (d) the action is less than a year old.

[42] In arriving at this conclusion, I am cognizant of the fact that three of the seven Franchetti factors favour the Plaintiffs' position, albeit to different degrees. This, however, does not require me to dismiss the motion. The factors are not a rigid checklist, nor do they represent a tally whereby whomever has more factors favouring their position wins. The factors are intended to be considered in their totality to determine whether the interests of justice favour granting the order requested (Mountain View Farms Ltd. v. McQueen, 2014 ONCA 194, 119 O.R. (3d) 561, at paras. 14, 50 and 51). In considering the factors together, I find that the interests of justice favour granting the order.

[43] Finally, in granting the motion, I have also considered three decisions relied upon by the Plaintiffs: 7084421 Canada Ltd. v. Vinczer, 2020 ONSC 217; Luciano v. Spadafora, [2004] O.J. No. 4311 (Ont. S.C.); and Manotick Concrete Ltd. v. Boissonneault, 2019 ONSC 4827. The Plaintiffs argue that these decisions demonstrate that courts have refused to set aside a noting in default where the delay at issue is less than seven months. All three decisions are distinguishable. For example, the decisions address setting aside a default judgment, which involves the consideration of different, albeit similar, factors to the Franchetti factors. More importantly, the prejudice analysis is significantly different in the default judgment context because the party seeking to uphold the judgment has a final decision that may be set aside.

[44] At its highest, the cases noted above demonstrate that, in some circumstances, the interests of justice may not favour setting aside a notice of default where the delay at issue is shorter than 7.5 months. However, and as I have stated earlier, the length of delay is just one factor to be considered and is certainly not determinative. There are cases where a motion to set aside a noting in default has been granted where the delay at issue is significantly longer than 7.5 months (see for example Alam MD v. Khan, 2025 ONSC 4136). Ultimately, each case must be evaluated on the evidence presented and the delay at issue must be considered together with the other factors relevant to the inquiry.

[45] While I grant the Defendants' motion, it was a very close call. To be clear, this decision should not be viewed as condoning the Defendants' decision to ignore a properly served statement of claim. A defendant who ignores a statement of claim does so at their own peril. In different circumstances, ignoring a statement of claim may be sufficient basis, on its own, to deny a motion to set aside a noting in default or a motion to set aside default judgment.

[46] For the most part, this motion was necessary because the Defendants initially ignored the statement of claim. As such, I make no award of costs in favour of the Defendants despite their success on the motion.

[47] The Defendants will have 30 days from the release of this decision to serve and file a statement of defence and any counterclaim. I strongly urge the Defendants to obtain legal assistance in preparing their pleading and moving forward with defending the action and pursing any further motions.

The Honourable Justice Sunil S. Mathai

Released: September 19, 2025