Superior Court of Justice — Ontario

Court File Number: CV-14-62409
Date: 2025-02-05

Parties

Plaintiffs: El-Moustapha Meski and Nicole Misner
Defendants: Dude Mitshabu, Isabelle Kayakeza, and Wawanesa Insurance

Before: A. Kaufman
Attorneys:

• Dude Mitshabu and Isabelle Kayakeza, self-represented
• Zoe Panday, for the Defendant, Wawanesa Insurance

Heard: 2024-11-20

Endorsement

(Translation of original French version released on February 5, 2025)

Background

[1] Mr. Mitshabu and Ms. Kayakeza (hereinafter "the defendants") seek to set aside a default judgment issued on August 30, 2019.

[2] The action arose from a traffic accident that occurred on March 27, 2014. The plaintiff, Mr. Meksi, alleges that he was driving in the center lane of Bronson Street, near Third Avenue, when the defendant, Mr. Mitshabu, attempted to change lanes from the right lane, causing a collision that resulted in Mr. Meksi's vehicle colliding with another vehicle and subsequently overturning. The defendant, Ms. Kayakeza, is the wife of Mr. Mitshabu and was the registered owner of the vehicle driven by Mr. Mitshabu at the time of the accident.

[3] The plaintiffs amended their Statement of Claim on April 24, 2015 to add Wawanesa as a defendant.

[4] The defendants filed a notice of intention to defend on November 11, 2014, but never filed or served a defence.

[5] Wawanesa served its statement of defence and crossclaim on October 1, 2015. It claimed against its co-defendants, Mr. Mitshabu and Ms. Kayakeza, for contribution and indemnity in the event that it was found liable to the plaintiffs.

[6] Wawanesa settled the plaintiffs' claim on February 27, 2018 for $70,000; this settlement included an assignment to Wawanesa of the plaintiffs’ claims against the defendants.

[7] On March 15, 2018, Wawanesa had the defendants noted in default.

[8] On August 30, 2019, Wawanesa brought a motion for judgment against the defendants. Although not required to do so, it served its motion record on the defendants by mail on May 13, 2019 at their address, 205 Garrity Crescent, Ottawa.

[9] Justice Phillips granted judgment on August 30, 2019. On September 3, 2019, Wawanesa wrote to the defendants, providing them with a copy of the judgment.

[10] On December 17, 2019, Wawanesa wrote to the Ministry of Transportation, requesting that the defendants' driver's licences be suspended, pursuant to the Highway Traffic Act, for their failure to respond to Wawanesa's request to satisfy the judgment.

[11] On December 27, 2019, Wawanesa received a letter from the defendants, requesting that the judgment be set aside by consent. The defendants expressed surprise that Mr. Meksi, a person they know well, had never mentioned the case. They acknowledge having received the Statement of Claim on September 30, 2014 at their address, 205 Garrity Crescent, filing a notice of intention to defend on November 11, 2014, and having always resided at that same address between April 2014 and October 2019.

[12] The defendants alleged that the plaintiffs' lawyer withdrew the action against them, and they denied having been involved in any accident.

Efforts to Set Aside the Judgment

[13] On January 15, 2020, Wawanesa's counsel offered to negotiate a payment plan with the defendants.

[14] Mr. Mitshabu asked Wawanesa to send him a copy of the motion record, claiming that he had never received it. Wawanesa eventually sent a copy of its motion record by email on September 15, 2020.

[15] On December 22, 2020, Mr. Mitshabu informed Wawanesa's lawyers that he intended to bring a motion to set aside the judgment.

[16] On May 31, 2021, a lawyer from Wawanesa attempted to contact Mr. Mitshabu by telephone. She wrote him an email on the same day to confirm that she had spoken to him briefly before Mr. Mitshabu hung up. She then called back, but a woman answered the phone, saying that Mr. Mitshabu was not in and that she had the wrong number. Wawanesa's lawyer asked in her email whether Mr. Mitshabu intended to bring a motion to set aside the judgment; otherwise she would seek to enforce it.

[17] On August 22, 2021, Mr. Mitshabu informed Wawanesa's lawyers that he was preparing for a hearing that would be held at the end of September and that he would advise them of the exact date in two weeks.

[18] On November 19, 2021, Mr. Mitshabu wrote to the court office requesting that a motion scheduled for April 23, 2020, be rescheduled. The clerk's office replied that no document had been filed for a motion on that date.

[19] On January 9, 2022, Mr. Mitshabu indicated that the motion would be heard in mid-March 2022.

[20] Mr. Mitshabu informed Wawanesa that he had scheduled his motion for October 12, 2022, December 20, 2022, January 24, 2023 and April 13, 2023. These motions were vacated because the defendants had not filed any documents.

[21] The parties appeared before Justice Muszynski on July 13, 2023. Justice Muszynski noted in her endorsement that Wawanesa's counsel had been informed of the hearing only when he received a Zoom link that very morning. She also noted that Mr. Mitshabu had not filed or uploaded any documents to Caselines. Justice Muszynski adjourned the motion and ordered that it be heard by a bilingual judge.

[22] The parties appeared before me on July 2, 2024. Once again, the defendants had not filed any documents relating to the motion. I adjourned the motion peremptorily to the defendants, given that the motion had been pending for several years.

Issue

[23] The matter to be decided on this motion is to determine whether the court should set aside the judgment entered against the defendants on August 30, 2019.

Applicable Principles

[24] Rule 19.08(2) of the Rules of Civil Procedure, RRO 1990, Reg. 194 provides that a judgment obtained against a defendant noted in default, on a motion to obtain judgment, may be set aside or varied on such terms as are just.

[25] In considering whether to set aside a default judgment, the following factors must be taken into account:

a. Was the motion brought promptly after the defendant learned of the default judgment?
b. Is there a plausible excuse or explanation for the defendant's default in complying with the Rules?
c. Do the facts establish that the defendant has an arguable defence on the merits?
d. What is the potential prejudice to the moving party should the motion be dismissed, and the potential prejudice to the respondent should the motion be allowed?
e. What is the effect of any order the motion judge may make on the overall integrity of the administration of justice?
(Mountain View Farms Ltd. v. McQueen, 2014 ONCA 194, paras. 47-49)

[26] The decision whether or not to set aside the judgment is within the discretion of the court. The factors should not be treated as "rigid rules", and ultimately the court must consider the particular circumstances of each case to decide whether it is right to release the defendant from the consequences of default. (Mountain View, para. 50) The court's ultimate task isto determine whether the interests of justice favour granting the order. (Mountain View, para. 61)

[27] I will now consider each factor.

Was the motion to set aside brought with reasonable dispatch?

[28] The defendants did not act promptly to set aside the judgment.

[29] Wawanesa provided the defendants with a copy of the judgment on September 3, 2019 by sending it to their address at 205 Garrity Crescent. On November 13, 2019, Wawanesa applied to the Ministry of Transportation to suspend the defendants' driver's licences. It was not until December 10, 2019, that the defendants contacted counsel for Wawanesa to seek its consent to set aside the default judgment.

Delay and Procedural History

[30] Although the defendants had informed Wawanesa of their intention to bring this motion, and despite obtaining various motion dates between October 12, 2022 and April 13, 2023, the hearings were vacated for failure to file any materials. The parties appeared before Justice Muszynski on July 13, 2023, and before me on July 2, 2024, and the defendants had still not filed any documents. Their motion was finally heard on November 22, 2024.

[31] The defendants justify the delay by their request for a copy of Wawanesa's motion file, which was available from the court and finally sent by e-mail on September 15, 2020, as well as by the suspension of court services due to Covid-19.

[32] Although the defendants represent themselves, I consider that a delay of five years from the time they were informed of the default judgment until the hearing of this motion is excessive. They had an obligation to inform themselves of their responsibilities and to comply with the Rules. Mr. Mitshabu's affidavit was not sworn until August 27, 2024.

[33] Moreover, although the Covid-19 pandemic disrupted judicial services, it cannot justify the delay from September 3, 2019 (six months before the pandemic) to November 22, 2024.

[34] This first factor militates against granting this motion.

Defendants' Explanation for Non-Compliance

[35] The defendants have provided several explanations for their non-compliance with the Rules, but the Court considers these explanations implausible.

[36] The defendants admitted receiving the Statement of Claim and filing a Notice of Intent to Defend on November 11, 2014. After Wawanesa was added as a party, it served a Statement of Defence and Crossclaim at the same address as that on the defendants' Notice of Intent to Defend. Under Rule 28.04(2), the Statement of Defence and Crossclaim did not require personal service under these conditions; therefore, service complied with the Rules.

[37] The defendants justify their failure to defend on several grounds:

a) They deny their involvement in the accident. Mr. Mitshabu stated that his ticket for "unsafe change of lane" had been canceled by the court.
b) They claim to have spoken with the plaintiff's lawyer, who acknowledged that the claim was unfounded and promised to withdraw it, a promise that was not kept.
c) They received legal advice from Ontario Help, where a duty counsel allegedly reassured them that the matter was closed, as it was based on a canceled ticket.

[38] The Court finds that these explanations lack credibility. It would have been wise for the defendants to seek written confirmation that the action had been abandoned. Further, no effort was made to obtain the testimony of the plaintiff's lawyer, Frank McNally, who is still in practice. It also seems unlikely that a lawyer would have assured the defendants that they would not have to worry about a personal injury action based on the cancellation of a traffic ticket. Finally, it would have been easy for duty counsel to verify with the plaintiff or the court whether a Notice of Discontinuance had been filed.

[39] This factor also militates against granting the motion.

Do the Defendants Present an Arguable Defence on Its Merits?

[40] Mr. Mitshabu denies having been involved in the accident, emphasizing that the officer who had issued the ticket arrived 10 minutes after the incident and therefore did not witness it. Mr. Mitshabu claims that he had intended to change lanes but did not do so. He asserts that his ticket was canceled by the court because it was deemed inappropriate.

[41] However, the defendants have presented no evidence to corroborate these bare assertions.

[42] A defendant seeking to set aside a default judgment does not have the same burden as a party responding to a motion for summary judgment. (Zeifman Partners Inc. v. Aiello, 2020 ONCA 33, paras. 31-34). In Mountain View, the Court of Appeal held that to establish a defence on its merits, the defendant need not show that the defence will inevitably succeed. The defendant must show that its defence has an appearance of reality. To meet this standard, defendants must present evidence establishing facts showing that their defence is potentially sustainable on its merits. (Canadian Imperial Bank of Commerce v. Petten, 2010 ONSC 6726, para. 6)

[43] In the Court's view, the defendants' mere denials do not satisfy the standard of appearance of reality. It is implausible that the police would have issued a ticket without prior investigation or that the court would have quashed it without tangible evidence. Mr. Mitshabu has not provided a sufficient evidentiary basis to show that his defence has an appearance of reality. Without the presentation of evidence, the defendants' defence appears insufficient to meet established legal requirements.

The Relative Prejudice of the Parties

[44] This factor does not require an "atomistic analysis" of the parties' respective prejudice, which would invariably favour the moving party, who would be liable for the claim were the motion denied; whereas the responding party would be delayed but could still obtain and enforce judgment. (1705371 Ontario Ltd. v. Leeds Contracting Restoration Inc., 2018 ONSC 7423, paras. 52-55)

[45] If the motion is denied, the defendants would suffer serious consequences, including the respondents' ability to enforce the judgment and the suspension of their driver's licences.

[46] However, Wawanesa would also suffer serious prejudice if the motion were successful. The accident occurred on March 27, 2014, almost 11 years ago. Even if there were an order expediting the trial of this action, such a trial would not take place for several years. Much of the delay is attributable to the defendants' failure to bring this motion promptly. The Court is satisfied that a delay of this magnitude results in inherent prejudice.

The Effect of the Court Order on the General Administration of Justice

[47] Refusing to set aside the default judgment would not prejudice the administration of justice or compromise the overall integrity of the judicial system.

[48] The defendants have not provided a convincing explanation for their lack of defence and present no concrete evidence to demonstrate an arguable case, confining themselves to bare assertions. Moreover, they have not acted with the diligence necessary to pursue this motion. Although dismissal of the motion has important consequences for them, the annulment of a default judgment cannot be granted based solely upon request. The effective administration of justice depends on the parties' serious engagement in legal proceedings. Ignoring the proceedings and seeking an annulment almost six years after judgment undermines the judicial process and causes delay for all concerned.

Disposition

[49] For the reasons set out above, the defendants' motion is dismissed.

[50] Although Wawanesa seeks costs, it has not submitted costs outline pursuant to Rule 57.01(6). Accordingly, the Court makes no order as to costs.

Date: February 5, 2025

A. Kaufman