Estate of Lagrange v Yu, 2026 ONSC 2645

COURT FILE NO.: CV-24-2504-ESA1

DATE: 2026/05/04

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Michael Conrad Anthony Lagrange and Jennifer Rose Elizabeth Lagrange Plaintiffs

AND: Ange Emma Lagrange Philippe also known as Fleur-Ange Emma Lagrange Philippe, Ange-Emma Laferriere-Philippe, Ange Laferriere, and Angie Philippe, personally and as Estate Trustee of the Estate of Yvan Joseph Lagrange also known as Joseph Paul-Emile Yvan Lagrange Defendant

AND: Bob Yu, also known as Tak Leung Yu Third Party

BEFORE: Associate Justice S.A. Kettle

COUNSEL: Kathleen Judd, for the defendant Sean Dewart & Megan Phyper, for the third party

HEARD: March 27, 2026

ENDORSEMENT

A. OVERVIEW

[1] This is a motion by the third party for an order setting aside the noting of default.

B. FACTS

[2] The relevant litigation steps and timing of events are as follows:

November 14, 2024

Third Party Claim issued by the defendant against Bob Yu, also known as Tak Leung Yu, a lawyer. Counsel for the defendant at that time was Ellen Brohm.

November 27, 2024

Notice of Intent to Defend served. Counsel for the third party, Alexandra Mayeski, who was retained by the third party’s liability insurer, advised that they anticipated delivering the defence to the third party claim by January 17, 2025.

December 11, 2024

Ms. Mayeski asked Ms. Brohm if the defendant would be willing to provide a waiver of defence. Ms. Brohm agreed to have a phone call with Ms. Mayeski before a defence was prepared.

January 8, 2025

Ms. Brohm advised Ms. Mayeski that the originally scheduled call on January 15, 2025 would need to be rescheduled. Ms. Brohm confirmed that the defence was not required by January 17, 2025. Ms. Brohm stated “…Let’s speak on the phone first before picking a date for your SOD.”

January 21, 2025

Ms. Brohm and Ms. Mayeski had a telephone discussion. Ms. Brohm agreed to extend a waiver of defence to the third party, at least until the parties to the main action had exchanged affidavits of documents and exhausted settlement discussions. Notes of that telephone discussion reference holding off on incurring costs. No date was set for the delivery of the third party defence.

February 18-19, 2025

Counsel for the plaintiff in the main action e-mailed Ms. Mayeski, asking if a defence to the third party claim had been delivered. Ms. Mayeski responded by e-mail, with a copy to Ms. Brohm, stating “We have been advised that a Statement of Defence is not required from us at this time. I do hope the parties are able to come to a resolution.”. Ms. Brohm never indicated that there was no waiver of defence or that the defence was required by a specific date.

June 13, 2025

A notice of change of lawyer was served indicating that the defendant had retained their present lawyer, Kathleen Judd.

June 20, 2025

The plaintiffs and defendant brought competing motions for summary judgment in the main action. Ms. Judd copied Ms. Mayeski on the service by e-mail of the defendant’s cross-motion record and factum. The third party did not participate in the summary judgment motion in the main action.

June 22, 2025

Ms. Mayeski responded by e-mail, including to Ms. Judd, confirming “that we are still under a waiver of the requirement to defend the third party claim…”. Ms. Judd did not indicate that this was not the case or that the defence was required by a specific date.

November 7, 2025

Requisition to note the third party in default. No prior notice was given to the third party. The third party only became aware of this later in January 2026.

January 19, 2026

Ms. Judd served Ms. Mayeski with materials for the defendant’s summary judgment motion in the main action.

January 23, 2026

Upon reviewing the summary judgment motion material, Ms. Mayeski discovered for the first time that the defendant had noted the third party in default. By e-mail, Ms. Mayeski reminded Ms. Judd that the third party had obtained a waiver from the defendant’s previous lawyer, Ellen Brohm, as confirmed to Ms. Judd in the June e-mail. Ms. Mayeski noted that no advance notice was given of the noting in default. Ms. Mayeski asked Ms. Brohm to confirm that she would set aside the noting in default failing which the third party would bring a motion to set aside the noting in default and seek full indemnity costs.

In response, Ms. Judd noted that there was no signed waiver of defence in the file and asked Ms. Mayeski to produce same. Further, Ms. Judd stated “We also note that you and Lou-Anne had correspondence on February 18, 2025 (after your letter to Ellen) in which you stated “that a statement of defence is not required from us at this time”. Which runs contrary to the rules of civil procedure which states a timeline for delivery of a statement of defence.”

January 29, 2026

Sean Dewart, who was appointed by the liability insurer as counsel for Ms. Mayeski, wrote to Ms. Judd regarding the impropriety of noting the third party in default, without prior notice, and asking Ms. Judd to set aside the noting in default. Mr. Dewart also advised Ms. Judd that if she did not immediately confirm that the defendant would consent to setting aside the noting in default, the third party would bring a motion for such relief and seek full indemnity costs.

February 2-4, 2026

Counsel exchanged e-mails regarding positions on the noting in default.

February 5, 2026

The third party’s motion to set aside the noting in default was served.

[3] I find that the defendant did provide the third party with an indulgence or extension of time to deliver a defence and never notified the third party that the defence was required by a specific date. I also find that the defendant did not notify the third party of any intention to note the third party in default if they failed to deliver a defence.

C. ISSUES AND ANALYSIS

[4] The only issue on this motion is whether the Court should set aside the noting in default of the third party.

[5] Rule 19.03(1) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 (the “Rules”) provides the following:

19.03 (1) The noting of default may be set aside by the court on such terms as are just.

[6] The relevant factors to consider are set out by the Ontario Court of Appeal in Intact Insurance Company v. Kisel, 2015 ONCA 205 at paras. 12-13:

[12] Rules 19.03(1) and 19.08(1) [of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194] provide the basis for setting aside a noting of default and a default judgment, respectively. Both rules give the court discretion to set aside the default "on such terms as are just". This court has held that the tests to be met under these rules are not identical. See Metropolitan Toronto Condominium Corp. No. 706 v. Bardmore Developments Ltd. (1991), 1991 7095 (ON CA), 3 O.R. (3d) 278, [1991] O.J. No. 717 (C.A.), at pp. 284-85 O.R.

[13] When exercising its discretion to set aside a noting of default, a court should assess "the context and factual situation" of the case: Bardmore, at p. 284 O.R. It should particularly consider such factors as the behaviour of the plaintiff and the defendant; the length of the defendant's delay; the reasons for the delay; and the complexity and value of the claim. These factors are not exhaustive. See Nobosoft Corp. v. No Borders Inc., [2007] O.J. No. 2378, 2007 ONCA 444, 225 O.A.C. 36, at para. 3; Flintoff v. von Anhalt, [2010] O.J. No. 4963, 2010 ONCA 786, at para. 7. Some decisions have also considered whether setting aside the noting of default would prejudice a party relying on it: see, e.g., Enbridge Gas Distribution Inc. v. 135 Marlee Holdings Inc., [2005] O.J. No. 4327, [2005] O.T.C. 891 (S.C.J.), at para. 8. Only in extreme circumstances, however, should the court require a defendant who has been noted in default to demonstrate an arguable defence on the merits: Bardmore, at p. 285 O.R.

[7] The third party demonstrated an intention to defend within two weeks of being served with the third party claim by serving a Notice of Intent to Defend. I find that the third party indicated a willingness to deliver a defence but obtained a waiver, indulgence or extension of time to deliver a defence from Ms. Brohm, counsel for the defendant at the time that the third party claim was issued. The defendant and third party agreed to this extension of time to see how the main action unfolded before the defendant incurred costs in defending the third party claim.

[8] The defendant later retained new counsel, Ms. Judd, who I find also knew that the third party claimed to have a waiver, indulgence or extension of time to deliver a defence. The time from the waiver of defence given by Ms. Brohm to the time that Ms. Judd noted the third party in default was approximately 10 months.

[9] I reject the defendant’s submission that the third party intended to delay and obstruct rather than to defend on the merits. I also reject the defendant’s submission that the third party failed to engage in any aspect of the litigation. In support of that assertion, the defendant points to correspondence and steps taken in the main action in respect to a summary judgment motion in which the third party was not a participant. I find that the third party had no obligation to communicate or participate in the summary judgment motion in the main action and their decision to not do so is not evidence of “complete disengagement” or “prolonged inaction” as the defendant argues in their factum.

[10] The Ontario Court of Appeal addressed the issue of notice of the intention to note in default in Male v. The Business Solutions Group, 2013 ONCA 382 (“Male”) at paras. 18 and 19:

[18] Second, in our view, in the circumstances of this case, it was unreasonable for counsel for the respondent to have noted the appellants in default and to have pursued default judgment without notice to appellants' counsel, with whom he was actively engaged, when he knew that the appellants were defending.

[19] The publication issued by the Advocates' Society, entitled The Principles of Civility for Advocates (Toronto: Advocates' Society, 2009), has been endorsed by this court on a number of occasions. Section 19 provides:

19. Subject to the Rules of Practice, advocates should not cause any default or dismissal to be entered without first notifying opposing counsel, assuming the identity of opposing counsel is known.

[11] Justice Nordheimer addressed this issue in Xpress View Inc. v. Daco Manufacturing Ltd., 2002 CarswellOnt 5898 (SCJ) (“Xpress View”) at paras. 15-17:

15…Counsel have obligations to deal with each other fairly and not to take advantage of missteps by opposing counsel. This requirement is reflected in the Rules of Professional Conduct, rule 14 of which, commentary 4, states, in part:

The lawyer should avoid sharp practice, and should not take advantage of or act without fair warning upon slips, irregularities or mistakes on the part of other lawyers not going to the merits or involving the sacrifice of the client's rights.

16 This requirement is also reflected in the case law. As Rose J. said more than 100 years ago in Backhouse v. Bright(1889), 13 P.R. 117 (Ont. Div. Ct.):

To build up a client's case on the slips of an opponent, is not the duty of a professional man.

17 The plaintiff' solicitor made one single demand for the delivery of a pleading. There was no follow-up letter or telephone call made when the defence was not received. Plaintiff's counsel ought to have realized the potential for a slip or error and should, in my view, have had further contact with the defendant's solicitor before taking default steps…

[12] In Garten v Kruk, 2009 58071 (ON SCDC), Justice Wilson adopted the principles enunciated by Justice Nordheimer in Xpress View stating:

[24] The reasons of the Master do not consider the questionable conduct of plaintiff’s counsel. Counsel failed to advise either verbally or in writing the defence counsel of his intent to note the defendant in default if the statement of defence was not filed.

[25] The plaintiff’s counsel then waited six months after noting the defendant in default before notifying counsel for the defendant that his client had been noted in default.

[29] I agree with the analysis of Nordheimer, J.. These principles apply squarely to the facts of this case. Counsel for the plaintiff had a professional duty to advise opposing counsel before taking steps to note the defendant in default. This obligation is evident, particularly in the facts of this case. The effect of the Master’s order reinforces what is sharp practice. This is a palpable overriding error.

[13] In the case at hand, the defendant did not request that the third party defence be delivered following the extension of time granted to deliver it. The defendant did not give any notice of an intention to note the third party in default. Rather, the defendant simply went ahead and noted the third party in default without any notice at all. Further, the third party only discovered the noting in default by reviewing materials in respect to a summary judgment motion in the main action—not by any specific communication by the defendant’s lawyer directing the third party to the noting in default. I find that the noting in default of the third party without notice was improper. Counsel for the defendant had a professional obligation to advise counsel for the third party before taking steps to note the third party in default.

[14] Upon learning that it had been noted in default, the third party immediately took steps to have it set it aside. Ms. Mayeski first asked Ms. Judd to set aside the noting in default. Ms. Judd demanded to see a written waiver. Ms. Mayeski retained counsel who also requested that the noting in default be set aside. Mr. Dewart referred Ms. Judd to relevant authorities on the issue. Ms. Judd still did not agree to set aside the noting in default. Being unsuccessful in having Ms. Judd set aside the noting in default, the third party’s motion record was served promptly, within approximately 2 weeks from the first time that Ms. Mayeski became aware of the noting in default.

[15] I find that there will be no prejudice to the defendant if the noting in default is set aside. The defendant was aware that the third party claimed to have a waiver of defence and I find that there was a waiver of defence, indulgence or extension of time to deliver a defence. I reject the defendant’s submission in its factum “[t]his delay creates real prejudice, as it permits the potential shaping or retroactive creation of evidence that lacks the reliability of contemporaneous documentation, and weighs strongly against the exercise of the Court’s discretion to set aside the noting in default.”

[16] On the other hand, if the noting in default is not set aside, the third party will experience significant prejudice by not having an opportunity to defend the third party claim on its merits and being exposed to a significant judgment. See Trayanov v Icetrading Inc., 2023 ONCA 322 at para. 26.

[17] Given the complexity and value of the third party claim, pleadings and discovery will be necessary to properly adjudicate the claims on their merits. See Bridgepoint Financial Services Limited Partnership I et al v. Grillone et al, 2022 ONSC 4802 at para. 33.

[18] The importance of having matters determined on their merits was addressed in Collard & Markus Construction Inc. v. Collard Properties Inc. and Collard Holdings Ltd., 2024 ONSC 356 (“Collard & Markus”) at para 17:

…In interpreting the Rules, the Court of Appeal has stated that courts should attempt to ensure that proceedings are determined on their merits, rather than on a failure to comply with technical requirements or time limits (see: Mountain View Farm Ltd. v. McQueen, 2014 ONCA 194 at para. 50).

[19] As the Court of Appeal noted in Nobosoft Corporation v. No Borders, Inc., 2007 ONCA 444, requests to relieve against defaults are granted on an almost routine basis and counsel will usually consent to such relief:

[7] We agree with the observations of Molloy J. of the Superior Court of Justice at para. 2 of McNeill Electronics Ltd. v. American Sensors Electronics Inc. (1996), 5 C.P.C. (4th) 266 (Ont. Gen. Div.), reversed on other grounds (1998), 1998 17693 (ON CA), 108 O.A.C. 257 (C.A.):

Motions to extend the time for delivery of pleadings and to relieve against defaults are frequently made and are typically granted on an almost routine basis. Usually opposing counsel will consent to such relief as a matter of professional courtesy. Where there is opposition to a motion of this kind, it is usually related to additional terms which are sought as a condition to the indulgence being granted or to issues of costs…It is not in the interests of justice to strike pleadings or grant judgments based solely on technical defaults. Rather, the Court will always strive to see that issues between litigants are resolved on their merits whenever that can be done with fairness to the parties.

[20] Having considered all of the facts, including the intention of the third party to defend, the third party being led to believe that a defence was not required at all relevant times, the filing of a requisition to note the third party in default without notice to the third party, the third party’s timeliness in bringing the motion, the lack of prejudice to the defendant and the complexity and value of the claim, I find that there are no extreme circumstances requiring the third party to demonstrate an arguable defence on the merits. If I had found that there was a requirement for the third party to demonstrate an arguable defence, I would have found that the third party has an arguable defence on the merits and that it would be unjust to prevent the third party from defending the action.

[21] In summary, I find that the context and factual situation of this case strongly support the setting aside of the noting in default.

[22] Having reached my conclusions in this case, I have considered Rule 1.04 of the Rules:

1.04 (1) These rules shall be liberally construed to secure the just, most expeditious and least expensive determination of every civil proceeding on its merits.

[23] Counsel should deal with each other fairly and avoid taking steps without fair warning. Sharp practice should be avoided. Here, counsel for the defendant should have requested that the third party deliver a defence. Thereafter, as noted in Male and Xpress View, the defendant should have provided notice to the third party that they intended to note the third party in default.

[24] Despite an extension of time to deliver a defence being provided by the defendant to the third party, counsel for the defendant failed to request a defence and failed to give notice of an intention to note in default. This practice should be avoided in situations like the one at hand as it ignores the professional obligations lawyers owe to each other and the general principle outlined in Rule 1.04 of the Rules.

D. CONCLUSION & COSTS OF THE MOTION

[25] For the reasons set out above, the third party’s motion seeking to set aside the noting in default of the third party is granted. As such, the noting in default of the third party shall be set aside.

[26] The third party seeks costs of this motion on a full indemnity basis because the motion was unnecessary and arose as a result of the unprofessional conduct of the defendant’s lawyer.

[27] Pursuant to section 131 of the Courts of Justice Act, R.S.O. 1990, c. C.43, the costs of a step in a proceeding are in the discretion of the Court. Rule 57.01 of the Rules sets out the factors to guide the Court in the exercise of that discretion. The objective is to fix an amount that is objectively reasonable, fair and proportionate in the circumstances of the case, rather than an amount based on the actual costs incurred by the party entitled to costs. See Apotex Inc. v. Eli Lilly Canada Inc., 2022 ONCA 587 at paras. 59-66.

[28] I note that counsel for the third party requested that the defendant consent to setting aside the noting in default on January 23 and 29, 2026, failing which this motion would be brought with costs being sought on a full indemnity basis. I also note that counsel for the defendant vigorously argued against setting aside the noting of default even after having received the third party’s motion materials.

[29] Having reviewed the cost outlines of both parties and having considered what amount is reasonable, fair and proportionate in the circumstances of this case, I find that an award of costs payable by the defendant in favour of the third party on a substantial indemnity basis is appropriate in the amount of $9,600.

[30] In concluding that this amount is appropriate in the circumstances, I have considered the conduct of the defendant as described above. The third party should not have been put to the expense of bringing this motion. This is a case where an elevated award of costs is appropriate due to the conduct of the defendant. See Collard & Markus at paras. 28-32.

Associate Justice S.A. Kettle

Date: May 4, 2026