



COURT OF APPEAL FOR ONTARIO

CITATION: Ur-Rahman v. Mahatoo, 2016 ONCA 555

DATE: 20160708

DOCKET: C61704

MacPherson, Cronk and Benotto JJ.A.

BETWEEN

Manzoor Ur-Rahman

Plaintiff (Respondent)

and

Oma Devi Mahatoo and Mohan Rum Mahatoo

Defendants (Appellants)

Wendy Greenspoon-Soer and Monica Unger-Peters, for the
    appellants

Naresh Misir and Ken Singh, for the respondent

Heard: July 7, 2016

On appeal from the order of Justice Grant Dow of the
    Superior Court of Justice, dated January 11, 2016.

ENDORSEMENT

[1]

The appellants appeal from the order of Dow J. of the Superior Court of
    Justice, dated January 11, 2016, dismissing their motion for an order setting aside
    the default judgment of Herman J. of the Superior Court, dated April 29, 2005,
    and the damages judgment of Firestone J. of the Superior Court, dated May 2,
    2014, and associated relief.

[2]

This action arose from a slip and fall incident at the appellants property
    in Toronto on January 29, 2003, approximately 13 years ago, when the
    respondent, allegedly one of several tenants then living at the appellants property,
    fell on the appellants icy driveway while walking toward his car.  On
    September 25, 2003, he sued the appellants in negligence, seeking damages for
    injuries sustained by him in the fall.  The appellants were noted in default on
    April 29, 2005 and the respondent obtained a default judgment for damages on
    May 2, 2014.

[3]

The appellants claim that they first learned of the default judgment,
    indeed of the respondents entire action, in mid-May 2015, when they received
    notice from the Sheriffs office that a judgment against them was to be
    enforced against their property.  They then sought legal advice and, in June
    2015, moved for relief in the Superior Court, as described above, to permit
    them to defend the action on the merits.

[4]

Before this court, the appellants acknowledge that the motion judge
    correctly identified the factors governing the determination whether to set
    aside a default judgment.  However, they argue that he erred in his application
    of those factors by misapprehending the evidence relating to each.

[5]

Specifically, the appellants submit that the motion judge erred by
    holding that: i) they did not act promptly after learning of the default
    judgment; ii) they did not have a plausible excuse or explanation for their
    default in complying with the
Rules of Civil Procedure
, R.R.O. 1990,
    Reg. 194; iii) they failed to raise a meritorious defence; and iv) granting the
    motion would offend the overall integrity of the administration of justice.

[6]

We are not persuaded by these submissions.  We see no reversible error
    in the motion judges discretionary decision refusing to set aside the default
    judgment or in his application of the governing test to the facts of this
    case.  To the contrary, we agree with his ruling and his reasoning in support
    of it.

[7]

The motion judge expressly referred to this courts decision in
Mountain
    View Farms Ltd. v. McQueen
, 2014 ONCA 194, 119 O.R. (3d) 561, and the
    factors identified in that case, at paras. 47-51, as governing whether to set
    aside a default judgment.  He considered the relevant factors in light of the
    evidence in this case and held:

(a)

it
    was very likely that the respondents numerous attempts at service of the
    statement of claim and various court documents on the appellants resulted in
    one or both of the appellants learning of the action prior to 2015;

(b)

there
    was evidence of repeated efforts by the appellants to evade service over
    several years;

(c)

although
    the appellants admitted that they had learned in early December 2014 of a court
    proceeding involving them, and that they had attended at the Superior Court in
    relation to that proceeding, they made no inquiries regarding the nature or
    status of the proceeding, and took no other steps in that regard, for more than
    six months;

(d)

the
    appellants advanced no plausible explanation for their lengthy default in
    engaging with the litigation;

(e)

the
    appellants claim that the respondent was never a tenant at their property was
    contradicted by independent records indicating that the respondent, at the
    relevant times, had both credit rating records and a drivers licence history
    associated with the appellants address;

(f)

similarily, the appellants assertion that the respondent never fell on
    their property was directly contradicted

by
    independent documentary evidence of an emergency response to the respondents
    accident at the appellants property and his transport to hospital on the day
    in question.  It was also inconsistent with the appellants draft pleading, in
    which they alleged, in the alternative, contributory negligence by the
    respondent; and

(g)

several
    judges or judicial officers had attempted over many years to ensure that the
    fact and status of the respondents action was brought to the appellants
    attention.  Despite these efforts, the appellants took no steps to acknowledge
    or respond to the action against them until confronted with enforcement
    measures.

[8]

These findings were amply supported by the evidentiary record.  They
    overwhelmingly established unacceptable and inadequately explained delay by the
    appellants, a sustained pattern by them of attempting to frustrate the normal
    litigation process by evading service, and a proposed defence to the action of
    dubious merit.  In these circumstances, we endorse the motion judges
    conclusion that the overall interests of justice compelled the dismissal of the
    appellants motion.

[9]

The appeal is dismissed.  The respondent is entitled to his costs of the
    appeal and the earlier stay motion, fixed in the agreed total amount of $15,000,
    inclusive of disbursements and HST.

J.C. MacPherson J.A.

E.A. Cronk J.A.

M.L. Benotto J.A.


