Court File and Parties
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Melanie Dubois, Plaintiff
AND:
Magdy Abdelatty, Defendant
BEFORE: Associate Justice Glick
COUNSEL: Syashu Pesswani, for the Plaintiff
Alex Kyle, for the Defendant
HEARD: May 20, 2026
ENDORSEMENT
Overview
1Default proceedings are not to be used for tactical purposes. Where a plaintiff has been served with a statement of defence and the proceeding is actively being litigated, the plaintiff should not note the defendant in default or obtain default judgment. As Justice Myers stated at paragraph 3 of Strathmillan Financial Limited v. Teti, 2021 ONSC 7603, where counsel are having a disagreement in a case “it is not appropriate to take default proceedings to enforce the plaintiff’s position.” Even where there may be a technical default, Rule 19 is inapplicable in the circumstances. Where there is a problem with the prosecution or defence of the action, the proper procedure is to request a case conference under Rule 50.13.
2In this matter the Plaintiff has now noted the Defendant in default twice and obtained default judgment once. The first noting in default and default judgment was set aside by Justice Kurz on December 18, 2024. The Plaintiff then noted the Defendant in default a second time. She also brought a motion to obtain default judgment which Justice Wilkinson adjourned sine die. This is the Defendant’s motion to set aside that second noting in default.
3For the reasons that follow, the motion is granted and the noting in default is set aside. The Defendant is granted leave to file his Statement of Defence within thirty days of this Order. The Parties are also directed to attend a case conference to timetable the remaining steps in this action.
BACKGROUND
4This action was commenced on February 20, 2024. It is a dispute between family members over the repayment of a loan from the Defendant to the Plaintiff. The Plaintiff says the loan was a two-year loan. The Defendant says it was a demand loan. The Plaintiff says the Defendant’s demand for the repayment caused her to suffer damages.
5A Notice of Intent to Defend was served on March 5, 2024. The Statement of Defence was due on March 24, 2024. It was served a day later, on March 25, 2024. The Defence included a Counterclaim. The Plaintiff prepared a Reply.
6The Defendant’s Statement of Defence and Crossclaim was not filed with the court. The Plaintiff discovered this when attempting to file their Reply. They noted the Defendant in default on July 2, 2024 and obtained default judgment that same day.
7On December 18, 2024, Justice Kurz set aside the noting in default and default judgment. The Plaintiff consented to the relief. The consent order did not set out a timeline as to when the Statement of Defence and Counterclaim needed to be filed.
8The Parties had exchanged Affidavits of Documents by early January 2025. The Plaintiff says they asked for discoveries but there was no response. In fact, the Plaintiff’s motion record shows correspondence relating to attempts to schedule discoveries.
9The Plaintiff’s lawyer changed in July of 2025. New counsel asked for confirmation that the Statement of Defence had now been filed. They received a response from counsel for the Plaintiff saying it had been filed, but no confirmation of filing. They thereafter on July 23, 2025 told counsel for the Defendant that unless proof of filing was provided by July 25, 2025, they had instructions to proceed with default proceedings.
10On July 24, 2025, counsel for the Defendant responded to advise that the pleading had been filed. Draft discovery plans were attached to the email but there was no confirmation of filing.
11On August 13, 2025, the Plaintiff filed a Requisition to Note the Defendant in Default which was accepted by the court. The Defendant was noted in default.
12The Plaintiff thereafter moved for default judgement in front of Justice Chang on February 26, 2026. They did not serve the Defendant. Justice Chang adjourned the motion so as to allow for service and to permit the Plaintiff to deliver further and better evidence in support of her motion and claims.
13The motion was ultimately returned in front of Justice Wilkinson on April 8, 2026. Counsel for the Defendant advised Justice Wilkinson that he had confirmation that the Statement of Defence was properly filed and that the Defendant should not have been noted in default. Justice Wilkinson adjourned the motion sine die to allow the Defendant to bring this motion to set aside the noting in default.
Was the Defence Filed?
14The Statement of Defence was not filed. The Defendant unsuccessfully attempted to file the Statement of Defence on July 24, 2025 by submitting it through the wrong portal – the Civil Submissions Online portal and not the Civil Claims Portal. As a result, the material was rejected for filing. Defendant’s counsel received a rejection email but stated on the hearing of this motion that he did not see it until preparing for this motion, after the material was filed. On consent he sent the rejection email to the registrar for my review. He says he made a mistake but that his client should be able to proceed with his defence.
LAW AND ANALYSIS
15Rule 19.03 provides that a noting of default may be set aside by the court on such terms as are just. The decision is a discretionary one.
16The Court of Appeal in Intact Insurance Company v. Kisel, 2015 ONCA 205 at paragraphs 12-13 notes that the test for setting aside a noting in default and setting aside a default judgment are not identical. The Court of Appeal directed a court, when considering whether to set aside a noting of default, to assess the context and factual situation of the case. A court should consider such factors as the behavior of the parties, the length of the delay, the reasons for the delay and the complexity and value of the claim. These factors are not exhaustive.
17Associate Justice P.J. Barnes recently canvassed the law on a motion to set aside a noting in default at paragraphs 16-21 of his decision in RE/MAX Excel Realty Ltd. v. Savills Inc., 2026 ONSC 1928. At paragraph 18, AJ Barnes notes that the “evidentiary bar to set aside a noting in default is low and guided primarily by the fact that it is the Court’s preference to resolve civil disputes on their merits.”
18This is not a case where the usual factors apply in considering the context and factual situation. In this case there was never a proper basis to note the Defendant in default. There is no question that the Defendant was defending the action and no question that the Plaintiff knew this to be the case. The Plaintiff had the Statement of Defence. The Plaintiff had already consented to set aside the previous noting in default and default judgment. Following that setting aside the Defendant had served an Affidavit of Documents and the Parties had been attempting to book discoveries. There is no justification in these circumstances for once again noting the Defendant in default, let alone moving for default judgment.
19The Plaintiff complains about the prejudice the delay has caused. Counsel pointed out that the claim was commenced in February of 2024 and discoveries have not taken place. She noted that the Plaintiff has incurred costs of motions to deal with the Defendant’s non-compliance with the Rules. She says the Plaintiff already benefited from having the previous default set aside and being permitted to continue defending the action. She says he should not be given another chance which will only result in “further prejudice and delay”.
20I agree that the Defendant ought to have attempted to file his Statement of Defence earlier than July 2025. He should have done so immediately after Justice Kurz set aside the first default judgement on December 18, 2024. I also agree that the Rules ought to be enforced. The failure to file pleadings can lead to procedural problems. In this case the failure to file the Statement of Defence led to an inability of the Plaintiff to file her Reply. The action is also not able to be set down for trial before pleadings are properly closed. But as Justice Myers stated at paragraph 32 of Strathmillan Financial Limited, “that risk is hardly a basis to note a represented, defending defendant in default.” This is not the purpose for which Rule 19 was designed. The proper course of action would have been to request a case conference.
21I find that the Plaintiff’s decision to note the Defendant in default was an inappropriate misuse of Rule 19. This is particularly so as it was the second time the Plaintiff had pursued this course of conduct. I also find that the conduct was particularly problematic as counsel for the Defendant wrote to Plaintiff’s counsel and advised that the Defence had been filed. Counsel for the Defendant was mistaken as the pleading was filed in the wrong portal and rejected. But in this circumstance, Plaintiff’s counsel ought to have suggested a phone call to try to work it out. If that call did not successfully resolve the issue, a case conference ought to have been requested. The choice to note the Defendant in default is what has led to the delay in this case since that decision was made.
22For all of these reasons, taking into account the context and factual situation, I grant the Defendant’s motion to set aside the noting in default. The Defendant must file his Statement of Defence and Counterclaim with the Court within thirty days.
Next Steps
23The Parties have not been able to work together to move this action forward. The Parties are therefore directed to attend a case conference to timetable the remaining steps in this action. The Parties may book that case conference by contacting the trial office. The case conference is to be booked in front of me.
CONCLUSION
24As above, the Defendant’s motion is granted. The noting in default is set aside. The Defendant has thirty days to file his Statement of Defence and Counterclaim. The Parties are also directed to book a case conference in front of me to timetable the remaining steps in this action.
25I encourage the parties to settle the costs of this motion. If they cannot do so, costs submissions can be made in writing through the administration office. Submissions are to be limited to three pages. The Defendant is to serve his submissions within seven days of this decision. The Plaintiff is to serve her submissions seven days later. There will be no reply.
Associate Justice Glick
Released: June 3, 2026
CITATION: Dubois v. Abdelatty, 2026 ONSC 3228
COURT FILE NO.: CV-24-0676-0000
DATE: 2026 06 03
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Melanie Dubois
Plaintiff
AND:
Magdy Abdelatty
Defendant
ENDORSEMENT
Glick AJ.
Released: June 3, 2026